Avondale Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 10, 1999

329 N.L.R.B. 1064 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
329 NLRB No. 93
1064
Avondale Industries, Inc. and New Orleans Metal
Trades Council. Cases 15–CA–12171–1, et al.
November 10, 1999
DECISION AND ORDER*
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On February 26, 1998, Administrative Law Judge
David L. Evans issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed exceptions, a supporting brief, and
an answering brief to the Respondent’s exceptions. The
Charging Party filed cross-exceptions and a supporting
brief. The Respondent filed separate answering briefs to
the General Counsel’s exceptions and the Charging
Party’s cross-exceptions. The General Counsel filed a
reply 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, cross-exceptions, and briefs,
and has decided to affirm the judge’s rulings, findings,1
and conclusions, as modified below, and to adopt the
recommended Order as modified and set forth in full in
this decision.
1. The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act on 73 different occasions from
March 1993 through June 1994.2 He recommended dis-
missal of 47 other 8(a)(1) allegations. The General
Counsel and the Charging Party have excepted to several
of the recommended dismissals. In one instance, involv-

* Modifications have been made to comply with a Board Order Cor-
recting that issued on March 22, 2000. The Board amended the Conclu-
sions of Law to include a paragraph regarding the unlawful transfer of
employees to the Westwego shipyard. Further, it modified the Order by
including paragraphs requiring affirmative relief for onerous work
assignment discriminatees, for transfer discriminatee Luis Gonzales,
and for requiring the Respondent to remove any references to these
unlawful personnel actions from its file.
1 The Respondent, the General Counsel, and the Charging Party have
excepted to some of the judge’s credibility findings. The Board’s es-
tablished policy is not to overrule an administrative law judge’s credi-
bility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Standard Dry Wall
Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In addition, some of the Respondent’s exceptions contend that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
2 For the reasons set forth in Ross Stores, 329 NLRB No. 59 (1999),
and in cases cited there slip op. at 2 fn. 7, we agree with the judge that
the charge filed in Case 15–CA–12171–1 on June 7, 1993, supports all
of the 8(a)(1) allegations in this consolidated complaint proceeding.
We further agree that each of the numerous charges of 8(a)(3) discrimi-
nation supports closely related allegations of 8(a)(1) violations involv-
ing the alleged discriminatee and occurring within 6 months prior to the
filing of the 8(a)(3) charge.
ing an alleged unlawful interrogation of an employee in
preparation for Board litigation, we find merit in these
exceptions.
Based on credible testimony, the judge found that, on
February 28, 1994, employee Lawrence Arabie’s super-
visor directed Arabie to go to the office suite of Michael
Simpson, the Respondent’s vice president for production.
Upon arrival, Arabie was directed to an interview with
one of the Respondent’s attorneys. As part of the Re-
spondent’s preparation for litigation of postelection chal-
lenges and objections in Case 15–RC–7767, the attorney
showed Arabie three pieces of paper that had apparently
been circulated as prounion campaign propaganda. The
attorney asked Arabie if he had seen the papers before
and if he could tell her the source of the papers. Arabie
acknowledged having seen the papers, but said that he
could not identify the source. After this questioning, the
attorney asked Arabie to sign a paper stating that his par-
ticipation in the interview had been voluntary. Arabie
refused, the interview was terminated, and he returned to
work.
The General Counsel contends that the Respondent’s
interrogation violated the safeguards established in
Johnnie’s Poultry, 146 NLRB 770, 775 (1964), to mini-
mize the coercive impact of an employer’s investigatory
interview of employees in preparation for litigation.
Those safeguards include the requirement that the em-
ployer “must communicate to the employee the purpose
of the questioning, assure him that no reprisals will take
place, and obtain his participation on a voluntary basis.”
Id. The judge noted that the Respondent’s attorney did
not give Arabie the Johnnie’s Poultry notice and assur-
ances before questioning him, but he found no safe-
guards were required because the attorney did not ask
about Arabie’s union or protected concerted activities or
the protected concerted activities of other employees.
We disagree.
Clearly, the Respondent’s questions about the distribu-
tion of union election campaign propaganda among the
Respondent’s employees involved those employees’ pro-
tected concerted activities, regardless of whether there
was any implication that Arabie himself was engaged in
distribution, or that the Respondent believed he was.
Even assuming that the Respondent’s attorney stayed
within the area of permissible inquiry about such activi-
ties in preparing for the postelection hearing, she was
obligated to give the Johnnie’s Poultry assurances and to
secure Arabie’s voluntary participation prior to question-
ing him. Her failure to do so violated Section 8(a)(1).
E.g., Le Bus, 324 NLRB 588 (1997).
2. The judge considered 136 allegations of 8(a)(3)
violations. He found 68 violations (discriminatory dis-
charges, suspensions, warning notices, assignment of
more onerous work, denial of benefits, and a refusal to
hire). He dismissed the other 68 allegations. With the
exception noted in section 4 of this decision, we affirm
AVONDALE INDUSTRIES 1065
the judge’s findings and conclusions for all 8(a)(3) alle-
gations.3
In his analysis of these allegations, the judge applied
the test of discriminatory motivation set forth in Wright
Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983). Under that test, the General Coun-
sel must make “a prima facie showing sufficient to sup-
port the inference that protected conduct was a ‘motivat-
ing factor’ in the employer’s decision. Once this is es-
tablished, the burden will shift to the employer to dem-
onstrate that the same action would have taken place
even in the absence of the protected conduct.” Id.
The Respondent contends that the judge’s analysis en-
tails an erroneous standard with respect to the General
Counsel’s initial burden of proof. We find no merit in
this contention. As stated in Manno Electric, 321 NLRB
278, 280 fn. 12 (1996):

The Board has traditionally described the General
Counsel’s burden of demonstrating discriminatory mo-
tivation as one of establishing a prima facie case. [cit-
ing Wright Line] The D.C. Circuit has suggested that
in light of Office of Workers’ Compensation Programs
v. Greenwich Collieries, 114 S.Ct. 2551, 2557–2558
(1994) (the General Counsel’s burden of proof is a bur-
den of persuasion, not merely of production), “it will be
no longer appropriate to term the General Counsel’s
burden [as] that of mounting a prima facie case; his
burden is to persuade the Board that the employer acted
out of antiunion animus.” Southwest Merchandising
Corp. v. NLRB, No. 93–1859, slip op. 9 fn. 9 (May 12,
1995). This change in phraseology does not represent a
substantive change in the Wright Line test. Under that
test, the Board has always first required the General
Counsel to persuade that antiunion sentiment was a
substantial or motivating factor in the challenged em-
ployer decision. The burden of persuasion then shifts

3 In accord with the judge’s conclusions of law, the 8(a)(3) violation
with respect to job applicant Cynthia Johnson was a refusal to hire. We
note that Johnson applied for a security guard position on August 17,
1993, and that the Respondent hired a guard on September 3.
In affirming the judge’s finding that the Respondent violated Sec.
8(a)(3) by failing to assign employee Larry Gibson light-duty work
from May 10 to July 20, 1994, we find that the credible testimony
shows that he was qualified to perform some light-duty work within the
paint department and that the Respondent failed to prove that it would
not have found such work for him, as it had in the past for other em-
ployees, even in the absence of Gibson’s union activities.
We affirm the judge’s finding, in sec. IV,B,1,(3) of his decision, that
the Respondent violated Sec. 8(a)(3) by warning employee Dwight
Ballard for his unauthorized posting of union handbills on company
bulletin boards. See, e.g., Honeywell, Inc., 262 NLRB 1402 (1982),
enfd. 722 F.2d 405 (8th Cir. 1983). We disavow, however, any impli-
cation that a finding of unlawful discrimination could be based solely
on permitting the posting of United Way notices while prohibiting all
other notices, including union literature. See Hammary Mfg., 265
NLRB 57 (1982).
to the employer to prove its affirmative defense that it
would have taken the same action even if the employ-
ees had not engaged in protected activity. Office of
Workers’ Compensation Programs v. Greenwich Col-
lieries, supra at 2258.

We have reviewed the judge’s analysis of all 8(a)(3)
allegations, including both those where he found unlaw-
ful discriminatory motivation and those where he did not.
We find that in all instances he correctly applied the
Wright Line test, as clarified in Manno Electric, with
respect to the General Counsel’s initial burden of persua-
sion.4 We further find that his analysis accords with the
requirement that the General Counsel must bear through-
out the ultimate burden of proving the alleged discrimi-
nation by a preponderance of the evidence.
3. In exceptions to the judge’s analysis of 8(a)(3) is-
sues, the Respondent also contests both the judge’s reli-
ance on evidence of disparate treatment submitted by the
General Counsel and the judge’s exclusion of evidence
offered by the Respondent to demonstrate that discipli-
nary actions challenged as discriminatory were consistent
with discipline for similar incidents of employee mis-
conduct. We find no merit in the Respondent’s excep-
tions.
In its defense of almost every allegation that a discipli-
nary action violated Section 8(a)(3), the Respondent
sought to prove that the alleged discriminatee engaged in
misconduct specifically defined in the Respondent’s
rules and that the Respondent imposed the appropriate
sanction for the misconduct in accord with its progres-
sive disciplinary system.5 For instance, the Respondent’s
witnesses testified that certain alleged discriminatees had
engaged in multiple violations of the Respondent’s rules
and that a third violation within a 12-month period justi-
fied discharging them. In rebuttal, the General Counsel

4 In affirming the judge’s findings with respect to all instances in
which he found that the General Counsel met this initial burden, we
find that the Respondent’s numerous unfair labor practices, standing
alone, are sufficient to establish its animus. We nevertheless rely on all
of the factors cited by the judge, in his introduction to sec. 4,B of his
decision, as evidence of animus, except that we do not infer any animus
from the Respondent’s refusal to bargain with the Union after its elec-
tion victory and certification by the Board in Case 15–RC–7767.
Moreover, we note that the Fifth Circuit has denied enforcement of the
Board’s bargaining order and directed a second election in Avondale
Industries v. NLRB, 180 F.3d 633 (1999).
In finding animus, Member Hurtgen relies solely on the numerous
unfair labor practices, excluding the aforementioned refusal to bargain.
Unlike his colleagues, Member Hurtgen would not affirm the judge’s
reliance on any statements made by Albert Bossier, the Respondent’s
president, during a June 1, 1993 speech to employees as evidence of
union animus supporting the General Counsel’s case. In Member
Hurtgen’s view, such statements are protected by Sec. 8(c) and cannot
therefore “be evidence of an unfair labor practice under any of the
provisions of this Act.” See Member Hurtgen’s dissenting opinion in
Ross Stores, 329 NLRB No. 59., slip op. at 8.
5 See sec. III,C of the judge’s decision for a summary description of
the Respondent’s disciplinary system, drawn primarily from the
“Avondale Employees’ Guide.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1066
introduced exhibits, based on the Respondent’s personnel
records from 1990 through 1994, showing 883 instances
in which employees who received three or more warning
notices in a 12-month period were not discharged.6 (The
parties and the judge refer to these employees as “com-
parators.”) In another instance, the Respondent’s wit-
nesses testified that certain alleged discriminatees were
discharged for a single unexcused absence that followed
two warning notices for absenteeism that were less than
12 months old. In rebuttal, the General Counsel intro-
duced exhibits showing that, from 1990 until the advent
of the organizational campaign, 58 comparators received
three warning notices for absenteeism in a 12-month pe-
riod and 66 comparators had received four or more warn-
ing notices in a 12-month period.7 Those coparators
were not discharged.
The Respondent attempted to introduce comparator
evidence of its own to prove that many employees had
received the same degree of discipline for the same of-
fenses committed by alleged discriminatees. The judge
admitted some evidence of consistent past disciplinary
practice, particularly where the existence of a discipli-
nary rule or practice was in dispute. However, he re-
jected the Respondent’s offers to introduce evidence of
all post-1989 warning notices for violations of selected
disciplinary rules as evidence of consistent treatment.8
The judge viewed such evidence as irrelevant and bur-
densome because, in light of the General Counsel’s evi-
dence of significant disparate treatment, evidence of con-
sistent treatment would not prove that the real reason for
disciplinary action was the violation of a rule. We agree
with the judge.
Initially, we emphasize that in every instance of an
8(a)(3) violation found by the judge in this case, the
General Counsel met his initial burden of proof under
Wright Line with credible evidence independent of any
evidence of disparate treatment. “Accordingly, the value
of the disparate treatment evidence lies principally in its
tendency to rebut the employer’s own attempt to carry its
now-shifted burden under Wright Line of demonstrating
that it would have taken the same action against the [un-
ion] activist even absent his or her union activities.”
New Otani Hotel & Garden, 325 NLRB 928, 941
(1998).9

6 See sec. IV,B,1,a (Barbara Marshall’s discharge) and apps. B and
C of the judge’s decision.
7 See sec. IV,B,2,a (Isador Ancar’s discharge) and app. D of the
judge’s decision.
8 The total number of alleged examples of consistent past discipli-
nary practice proffered or introduced by the Respondent is approxi-
mately 2600.
9 Contrary to the Respondent, the General Counsel is not required to
prove disparate treatment as part of the initial showing of antiunion
discrimination, although a blatant disparity can be sufficient in certain
circumstances to meet the initial Wright Line burden. See, e.g., New
Otani Hotel & Garden, supra at 928 fn. 2.
Once the burden has shifted, the Respondent must
show not just that it could have taken the challenged dis-
ciplinary action but that it would have done so even in
the absence of union activities. Structural Composites
Industries, 304 NLRB 729, 730 (1991). The Board has
found that “in the absence of countervailing evidence,
such as that of disparate treatment based on protected
activity, the Respondent [can meet its Wright Line bur-
den] by demonstrating that it has a rule . . . and that the
rule has been applied to employees in the past.” Merillat
Industries, 307 NLRB 1301, 1303 (1992) (emphasis
added). Furthermore, the Respondent must only prove
its defense by a preponderance of the evidence. “[The]
defense does not fail simply because not all the evidence
supports it, or even because some evidence tends to ne-
gate it.” Id.
The insurmountable problem for the Respondent’s de-
fense in this case, however, is that the General Counsel
has presented significant countervailing evidence of dis-
parate treatment. The Respondent does not contest the
disparity, and it fails to make any persuasive qualitative
or quantitative argument to rebut it. Qualitatively, the
Respondent does not attempt to show that the disparity in
discipline between alleged discriminatees and the Gen-
eral Counsel’s comparators is attributable to differences
in work history, to the severity of misconduct, or to some
other factor unrelated to union activity. Indeed, the Re-
spondent argues, in contravention of the Wright Line
standard, that the General Counsel must always bear the
burden of disproving any possible nondiscriminatory
explanation for the disparity. Otherwise, the Respondent
makes no qualitative effort to explain the disparity in
application of a uniform disciplinary system shown by
the General Counsel’s comparator evidence.10
As stated, the Respondent’s Wright Line burden is
merely to prove by a preponderance of the evidence that
it would have disciplined an employee even in the ab-
sence of union activities. Quantitatively, however, that
burden is not met simply by showing that examples of
consistent past treatment outnumber the General Coun-
sel’s examples of disparate treatment. The Respondent
must prove that the instances of disparate treatment
shown by the General Counsel were so few as to be an
anomalous or insignificant departure from a general con-
sistent past practice.11 The Respondent does not argue
that its rejected evidence would constitute such proof.

10 For the reasons stated by the judge, we find no merit in the Re-
spondent’s argument that, notwithstanding its uniform set of rules, it
had a decentralized disciplinary system for some rules where the ap-
propriate discipline for a defined employee offense varied from de-
partment to department or from supervisor to supervisor. Moreover, in
all cases where the judge relied on disparate treatment as a factor in
finding that the Respondent failed to meet its Wright Line burden, the
General Counsel’s rebuttal evidence included significant examples of
disparate treatment within each discriminatee’s department.
11 Accordingly, this case is clearly distinguishable from those cases
cited by the Respondent where there was no evidence of disparate
AVONDALE INDUSTRIES 1067
In sum, all of the comparator evidence proffered by the
Respondent would prove at most that, in many instances,
it took disciplinary action in reliance on its rules. How-
ever, the General Counsel showed that, in many other
instances, Respondent did not take such disciplinary ac-
tion. Given the General Counsel’s initial showing under
Manno, Respondent had the burden of establishing that it
would have taken the disciplinary action challenged
herein even in the absence of union activity. In fact, the
evidence shows that Respondent may, or may not, have
done so, i.e., the record of disciplinary action is mixed.
The General Counsel’s case has not been rebutted. We
therefore find no error in the judge’s analysis of evidence
of disparate treatment or in his exclusion of the Respon-
dent’s comparator evidence.
4. The judge found that the Respondent violated Sec-
tion 8(a)(3) by discriminating against seven prounion
employees in regard to their compensation for a day on
which they were compelled by the Respondent to appear
at a Board representation election hearing. The Respon-
dent contends that the General Counsel failed to meet his
burden of proving that these employees suffered any ac-
tual adverse employment action on this day. We agree
with the Respondent.
On January 7, 1994, the Respondent subpoenaed seven
employees to appear at the postelection hearing on objec-
tions and challenges in Case 15–RC–7767. The subpoe-
naed employees had served as election observers for the
Union, and the Respondent believed that they would not
attend the hearing voluntarily to testify as its witnesses.
The subpoenaed witnesses appeared to testify on January
19. They were excused after only one-half hour. Includ-
ing travel time, their compelled attendance forced them
to miss 3 hours of work. The Respondent paid the sub-
poenaed employees the statutory witness fee of $40, plus
a travel allowance. It is undisputed that this amount was
in excess of the wages any in this group would have re-
ceived for 3 hours of work.
Throughout the many days of the postelection hearing,
a total of 150 employees voluntarily appeared to testify
as witnesses for the Respondent. It did not pay them the
same statutory minimum witness fee provided to the
subpoenaed employees. Instead, according to representa-
tions made by the Respondent’s counsel in this case, “the
Respondent paid employees other than those subpoenaed
their lost wages.”
The judge found that the Respondent’s reason for
maintaining different payment systems for two groups of

treatment or the evidence was deemed insignificant or anomalous in
light of preponderant evidence of consistent past practice. E.g., Great
Lakes Window, Inc., 319 NLRB 615, 617–618 (1995) (discharge con-
sistent with past practice; no evidence of disparate treatment); Synergy
Gas Corp., 290 NLRB 1098, 1103 (1988) (one known instance of
disparate treatment “appears to be an anomalous occurrence which was
offset by the other instances in which severe disciplinary action was
taken”).
its own witnesses stemmed from the prior union activity
of the subpoenaed group.12 He acknowledged that this
group could actually have benefited monetarily had the
employees worked all the hours they could have worked
on January 19. The judge nevertheless concluded that
there was unlawful discrimination because he found that
the Respondent paid a full day’s wages to all 150 volun-
tary witnesses and it failed to show that all of them
worked before and after they attended the hearing. In
other words, the judge found that the subpoenaed, proun-
ion employees received only the statutory fee for their 3
hours of lost work while the Respondent’s voluntary wit-
nesses losing 3 hours of work would have received a full
day’s wages.
Under the Wright Line test of unlawful motivation, the
General Counsel has the burden of proving the factual
elements of union activity, employer knowledge, animus,
and adverse employment action. E.g., Columbian Dis-
tribution Services, 320 NLRB 1068, 1071 (1996). In
cases of alleged discriminatory discipline, the adverse
nature of the challenged action is obvious, and the Board
focuses on the General Counsel’s proof of other ele-
ments. Here, however, the critical inquiry is whether the
General Counsel has proved that the subpoenaed em-
ployees suffered any actual adverse employment action
in their compensation on January 19. We find that the
record does not support the finding of an adverse action.
Contrary to the judge, there is no evidence that the Re-
spondent paid its volunteer witnesses a full day’s pay for
attending the Board hearing. The Respondent’s counsel
represented only that volunteer witnesses received lost
wages. Counsel did not represent that these witnesses
received a full day’s wages or any wages in excess of
hours actually lost for attending the hearing. Apart from
counsel’s representation, there is no evidence indicating
what the Respondent actually paid voluntary employee-
witnesses. On the other hand, it is undisputed that the
subpoenaed employees’ compensation on January 19 was
itself in excess of their wages for the 3 hours they actu-
ally lost. For this 3-hour period then, the subpoenaed
employees would have received more than they would
have under the volunteer witness compensation system,
if that system only compensated employees for hours
actually lost. We therefore find that the General Counsel
has failed to prove the allegation that the Respondent
discriminated against the subpoenaed employees by pay-
ing them a lesser amount than it paid to employees who
testified at its request and were not supporters of the Un-
ion. We shall dismiss this 8(a)(3) allegation.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 2(f) in
the judge’s decision.

12 The complaint does not allege that the maintenance of separate
payment systems was per se discriminatory.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1068
“(f) Transferring the following named employees to
its Westwego shipyard on the dates set opposite their
names.13

Edward Armstrong July 30, 1993
Walter Brown July 13, 1993
Luis Gonzalez August 2, 1993
Joseph Melton July 30, 1993”
AMENDED REMEDY
We agree with the judge that the Respondent’s unfair
labor practices warrant a broad cease-and-desist order
enjoining the Respondent not only from committing
again the specific violations found but also enjoining it
from violating the Act “in any other manner.” See
Hickmott Foods, 242 NLRB 1357 (1979). We also agree
with the judge that the quantity and severity of the unfair
labor practices committed by the Respondent are compa-
rable to those committed by the respondent in Fieldcrest
Cannon, Inc., 318 NLRB 470, 473–474 (1995), and war-
rant consideration of the special remedies imposed in
Fieldcrest and in cases cited there. Id. at 473.14 We find
it necessary, however, to modify the judge’s recom-
mended remedies in certain respects.
We adopt the judge’s recommendation that the Re-
spondent comply with special mailing and published
notice remedies. We disagree, however, with the re-
quirement that the Respondent’s president, Albert Boss-
ier (or, alternatively, Vice President Simpson), person-
ally sign the written notice and read the notice to em-
ployees or permit it to be read by a Board agent in his
presence. The Board has imposed this personal require-
ment on an executive of a flagrant wrongdoer in circum-
stances where it is necessary to dispel the atmosphere of
intimidation that the executive personally created. E.g.,
Three Sisters Sportswear Co., 312 NLRB 853 (1993),
enfd. 55 F.3d 684 (D.C. Cir. 1995), cert. denied 516 U.S.
1093 (1996).15 There is no finding that Bossier directly
committed any unfair labor practice in this case. Al-
though his involvement in the Respondent’s preelection
campaign against the Union is clear enough, there is in-
sufficient proof of his personal involvement in the
unlawful aspects of that campaign or in the numerous
unfair labor practices that occurred after the election.
Accordingly, we shall modify the recommended remedy
to provide that the notice be read to employees by either
a responsible supervisory official of the Respondent,
above departmental level, or, at the Respondent’s option,
by a Board agent, with the responsible supervisory offi-
cial present when it is read. Fieldcrest, 318 NLRB at
473.

13 We note that the original Conclusion of Law 2(f) concerned an
8(a) finding by the judge that we have reversed.
14 The special remedies in that case were upheld by the reviewing
court. 97 F.3d 65, 74 (4th Cir. 1996).
15 See also Monfort of Colorado, 298 NLRB 73, 86 fn. 47 (1990).
We disavow the judge’s reliance on the Respondent’s
refusal to bargain with the Union as a factor justifying
the imposition of special notice remedies here. As previ-
ously stated, the Fifth Circuit has found that the Respon-
dent did not unlawfully refuse to bargain, and it has di-
rected that a second representation be held. Avondale
Industries v. NLRB, 180 F.3d 633 (1999). The judge,
however, also relied on the Union’s certification result-
ing from the now-invalidated election as the basis for
declining to recommend special access remedies imposed
by the Board in Fieldcrest and Monfort where a second
election was pending. In light of the Fifth Circuit’s di-
rection of a second election among the Respondent’s
employees, we find it necessary to impose those special
access remedies in order to assure a fair and free election
by eliminating the effects of the Respondent’s wide-
spread, serious, and pervasive unfair labor practices.16
We shall therefore order the Respondent to comply with
the following special access remedies: (1) supply the
Union, on request made within 1 year of the date of this
Decision and Order, the full names and addresses of its
current employees; (2) on request, grant the Union and
its representatives reasonable access to the Respondent’s
bulletin boards and all places where notices to employees
are customarily posted; (3) on request, grant the Union
reasonable access to its facilities in nonwork areas during
employees’ nonworktime; (4) give notice of, and equal
time and facilities for the Union to respond to, any ad-
dress made by the Respondent to its employees on the
question of union representation; and (5) afford the Un-
ion the right to deliver a 30-minute speech to employees
on working time prior to any Board election which may

16 Contrary to our dissenting colleague, we find that the circum-
stances presented in this case are not significantly distinguishable from
Fieldcrest and Monfort. The unfair labor practices are comparable in
number and scope and include numerous attempts to interfere with
efforts to communicate the Union’s organizational message, including:
discharges, warnings, and threats focusing on employees who displayed
union insignia; threats and rules directed against employee discussion
of the Union; creating the impression of surveillance; and ordering
employees not to take literature from union representatives or not to
talk with them. Further, even if there had not been direct interference
with the Union’s efforts to communicate, the access remedy would still
serve the important purpose of offsetting the effects of a respondent’s
unfair labor practices and making clear to employees that the Union has
a legitimate role to play in their decision whether to seek union repre-
sentation. We also do not believe that the Union’s court-invalidated
election victory in the June 25, 1993 election undermines the need for
special access remedies. We note in this regard that nearly half of the
Respondent’s 8(a)(1) violations took place after that election. Finally,
we do not find it particularly relevant to the need for special access
remedies that there was no showing of direct involvement by the Re-
spondent’s chief executive in the unfair labor practice campaign. In
any event, given that the Respondent’s senior management failed to
prevent the 141 unfair labor practices that we have found were commit-
ted during that campaign, we have less confidence than our dissenting
colleague that the employees will view the chief executive or other
senior management as “untainted’ by those unfair labor practices and
that they will be able to “set a corporate tone which assures employees
of their Sec. 7 rights” absent these additional remedies.
AVONDALE INDUSTRIES 1069
be scheduled in which the Union is a participant. These
additional access provisions shall apply for a period of 2
years from the date of the posting of the notice provided
by the Order herein or until the Regional Director has
issued an appropriate certification following a fair and
free election, whichever comes first.17
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, Avondale In-
dustries, Inc., Avondale, Louisiana, 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) Discharging, refusing to hire, or otherwise dis-
criminating against its employees or employee-applicants
because it knows or suspects that such employees have
become or remained members of the New Orleans Metal
Trades Council, AFL–CIO (the Union), or because it
knows or suspects that such employees have given aid,
assistance, or support to the Union or any other labor
organization.
(b) Suspending its employees because they have be-
come or remained members of the Union or because they
have given aid, assistance, or support to it.
(c) Issuing warning notices to its employees because
they have become or remained members of the Union or
because they have given aid, assistance, or support to it.
(d) Assigning its employees to more onerous work be-
cause they have become or remained members of the
Union or because they have given aid, assistance, or sup-
port to it.
(e) Discriminating against its employees by denying
them telephone use privileges, or any other privileges,
because they have become or remained members of the
Union or because they have given aid, assistance, or sup-
port to it.
(f) Refusing to hire any employee-applicant because it
knows or suspects that such applicant has become or
remained a member of the Union or because it knows or
suspects that such applicant has given, or would give,
aid, assistance, or support to the Union or any other labor
organization.
(g) Threatening its employees with plant closure if
they select the Union as their collective-bargaining repre-
sentative.

17 We take notice of a reported agreement between the Union and the
Respondent, under new ownership, to conduct a card check before a
third-party arbitrator to determine whether a majority of current unit
employees wish to be represented by the Union. The Respondent re-
portedly agrees to remain neutral while the union campaigns to secure a
majority card showing, and it agrees to recognize the Union if the arbi-
trator certifies that the union represents a majority. See 212 Daily Lab.
Rep.t AA-1 (Nov. 3, 1999). We leave to subsequent proceedings, upon
appropriate motion and argument from the parties, the issue of whether
this reported agreement has, or should have, any impact on the remedy
in this case.
(h) Threatening its employees with discharge because
they have engaged in union or other protected concerted
activities.
(i) Threatening its employees with unspecified repri-
sals because they have engaged in union or other pro-
tected concerted activities.
(j) Threatening its employees with more strict en-
forcement of work rules because they have aided or sup-
ported the Union or because it suspects that its employ-
ees have aided or supported the Union.
(k) Threatening its employees with discharge because
they have worn prounion insignia.
(l) Threatening its employees with unspecified repri-
sals because they have worn prounion insignia.
(m) Threatening its employees with unspecified repri-
sals because of their participation in a Board-conducted
election.
(n) Threatening its employees with discharge because
they filed charges under the Act.
(o) Threatening its employees with unspecified repri-
sals because they filed charges under the Act.
(p) Interrogating its employees about their union
membership, activities, or desires.
(q) Threatening its employees that it will deny them
transfers because unfair labor practice charges have been
filed on their behalf.
(r) Soliciting its employees’ grievances and promising
to remedy them in order to discourage prounion sympa-
thies.
(s) Threatening to withhold wage increases from its
employees because they have been wearing prounion
insignia.
(t) Threatening its employees with discharge or other
reprisals because they have been seen reading prounion
literature.
(u) Instructing its employees to remove prounion in-
signia from their clothing.
(v) Threatening its employees with layoffs if they se-
lect the Union as their collective-bargaining representa-
tive.
(w) Threatening its employees with unspecified repri-
sals if they select the Union as their collective-bargaining
representative.
(x) Instructing its employees not to wear prounion in-
signia.
(y) Threatening its employees with unspecified repri-
sals because they have mentioned the word “union” dur-
ing conversations with supervisors.
(z) Threatening its employees by telling them that
other employees have been discharged because of their
union activities.
(aa) Threatening its employees by telling them that
other employees would not be reinstated because those
other employees were prounion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1070
(bb) Threatening its employees by telling them that it
would be futile for them to select the Union as their col-
lective-bargaining representative.
(cc) Threatening its employees with discharge if they
sign union authorization cards.
(dd) Creating the impression that its employees’ ac-
tivities on behalf of the Union are under its surveillance.
(ee) Threatening its employees that indulgences or
privileges would be withdrawn if they support the Union.
(ff) Promulgating any rule that precludes its employ-
ees from talking about the Union.
(gg) Threatening its employees with discharge if they
talk about the Union during working time.
(hh) Threatening its employees with unspecified repri-
sals because of their expressions of interest in union ac-
tivities.
(ii) Soliciting its employees to demonstrate against the
Union.
(jj) Threatening its employees with transfer or dis-
charge if they continue to support the Union.
(kk) Threatening its employees by telling them that
they have been transferred to more onerous positions
because they aided or supported the Union.
(ll) Threatening its employees by telling them that an-
other employee was reassigned because he had aided or
supported the Union.
(mm) Threatening its employees by telling them that it
will engage in closer supervision of their work because
they had aided or supported the Union.
(nn) Ordering its employees not to take literature from
union representatives or not to talk to them.
(oo) Coercively interrogating employees about mat-
ters that are the subject of a Board representation election
hearing.
(pp) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
the following-named employees full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.

Jose Aguilar Eddie Johnson
Edward Armstrong Marie Joseph
Dwight Ballard Charles Kent
Charles Bennett Barbara Marshall
Michael Boudreaux Joseph Melton
Johann Burton Michael Molaison
Vernon Charles Patrick Noah
Leroy Clark Audra Scott
Keith Collins Eugene Sheard
Charles Fleming Joseph Simpson
Julie George William Smith
Carlos Henriquez Donald Thompson
Vincente Hernandez Donald Varnado

(b) Make the above employees whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the
remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges of the above-named employees, and within 3
days thereafter notify those employees in writing that this
has been done and that the discharges will not be used
against them in any way.
(d) Make the following-named employees whole for
any loss of earnings and other benefits resulting from
their suspensions, less any net interim earnings, plus in-
terest.

Dwight Ballard Robert Ruiz
Mark Cancienne Lennie Valentine
Larry Gibson

(e) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful suspen-
sions of these employees, and within 3 days thereafter
notify each of them in writing that this has been done and
that their suspensions will not be used against them in
any way.
(f) Rescind the warning notices that were issued to the
following-named employees on or about the dates set
opposite their respective names:

Dwight Ballard April 26, 1994
Dwight Ballard May 18 1994
Dwight Ballard June 6, 1994
Dwight Ballard June 28, 1994
Harold Adams August 30, 1993
Carlos Henriquez February 1, 1994
Joe Howard October 12, 1993
Cornelius King July 30, 1993
Michael Molaison June 3, 1993
Donald Mason December 9, 1993
Donald Mason May 19, 1994
Philip Perera June 30, 1993
Philip Perera March 10, 1994
Philip Perera March 16, 1994
Darrell Smith July 23, 1993
Octave Rouege June 15, 1993(2)
Richard St. Blanc July 29, 1993
Lennie Valentine July 15, 1994

(g) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful warn-
ing notices that were issued to these employees, and
within 3 days thereafter notify each of them in writing
that this has been done and that their warning notices will
not be used against them in any way.
AVONDALE INDUSTRIES 1071
(h) Within 14 days from the date of this Order, offer
Mark Cancienne, Mamoru Honju, Larry Gibson, Charles
Giles, Luis Gonzalez, Loraine Moses, Sidney Jasmine,
and Richard St. Blanc full reinstatement to their former
jobs held prior to an unlawful transfer or assignment to
more onerous work or, if those jobs no longer exists, to
substantially equivalent positions, without prejudice to
their seniority or any other rights and privileges.
(i) Within 14 days from the date of this Order, remove
from its files any reference to the transfers and/or as-
signments to more onerous work for these employees,
and within 3 days thereafter notify each of them in writ-
ing that this has been done and that these personnel ac-
tions will not be used against them in any way.
(j) Make Mark Cancienne whole for any loss of earn-
ings and other benefits that he suffered as a result of his
unlawful assignment to more onerous work.
(k) Within 14 days from the date of this Order, offer
Cynthia Johnson full employment in the position for
which she applied, or, if such position no longer exists,
to a substantially equivalent position, without prejudice
to her seniority or any other rights and privileges.
(l) Make Cynthia Johnson whole for any loss of earn-
ings and other benefits that she suffered as a result of the
unlawful refusal to hire her in the manner described in
the remedy section of the judge’s decision.
(m) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful refusal
to hire Cynthia Johnson, and within 3 days thereafter
notify her in writing that this has been done and that the
refusal to hire her will not be used against her in any
way.
(n) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(o) Within 14 days after service by the Region, post at
its plants in Avondale and Westwego, Louisiana, copies
of the attached notice marked “Appendix.”18 Copies of
the notice, on forms provided by the Regional Director
for Region 15, after being signed by a supervisory offi-
cial of the Respondent above the departmental level,
shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.

18 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.”
(p) Publish the attached notice marked “Appendix” in
the Respondent’s internal newsletter.
(q) Mail copies of the notice to all of its present em-
ployees and to all employees on the Respondent’s payroll
since March 11, 1993, when the Respondent began its
unlawful conduct.
(r) Convene during working time all employees at Re-
spondent’s Avondale and Westwego facilities, by shifts,
departments, or otherwise, and have a supervisory offi-
cial of the Respondent above the departmental level read
the notice to employees, or, at the Respondent’s option,
permit a Board agent to read the notice with the respon-
sible supervisory official present when it is read. The
Board shall be afforded a reasonable opportunity to pro-
vide for the attendance of a Board agent at any assembly
of employees called for the purpose of reading such no-
tice by an official of the Respondent.
(s) Supply the Union, upon request made within 1
year of the date of this Decision and Order, the full
names and addresses of its current unit employees em-
ployed at its Avondale and Westwego facilities.
(t) On request, grant the Union and its representatives
reasonable access to the Respondent’s bulletin boards
and all places where notices to employees are customar-
ily posted in its Avondale and Westwego facilities.
(u) On request, grant the Union reasonable access to
the Respondent’s Avondale and Westwego facilities in
nonwork areas during employees’ nonwork time.
(v) Give the Union notice of, and equal time and fa-
cilities for the Union to respond to, any address made by
the Respondent to its employees in the Avondale and
Westwego facilities on the question of union representa-
tion.
(w) Afford the Union the right to deliver a 30-minute
speech to employees on working time prior to any Board
election which may be scheduled involving the Respon-
dent’s employees at the Avondale and Westwego facili-
ties in which the Union is a participant in a time frame of
not more than 10 working days before, but not less than
48 hours before, such election. (Pars. (p) through (t)
shall apply for a period of 2 years from the date of the
posting of the notice provided by the Order here or until
the Regional Director has issued an appropriate certifica-
tion following a fair and free election, whichever comes
first.)
(x) 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
comply.

MEMBER HURTGEN, dissenting in part.
I disagree with my colleagues on two issues in this
case. First, I would find that the limitations period of
Section 10(b) bars litigation of certain 8(a)(1) allegations
that are not closely related to any timely filed charge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1072
Second, I would not expand the judge’s recommended
remedy to include special access remedies.
On the first point, the majority affirms the judge’s
conclusion that a single charge of 8(a)(3) discrimination
filed on June 7, 1993, in Case 15–CA–12171–1 with
respect to the discharge of Danny Cox, is sufficient to
support all subsequent complaint allegations of 8(a)(1)
violations that allegedly occurred within a period 6
months before that charge and for an unlimited period
after the filing of that charge. For the reasons set forth in
my dissenting opinion in Ross Stores, 329 NLRB No. 59
(1999), I would find that the mere fact that timely and
untimely filed allegations are based on acts that arise out
of the same antiunion campaign is insufficient to show
that those allegations are “closely related” under the test
of relatedness in Redd-I, Inc., 290 NLRB 1115 (1988). I
would therefore dismiss on 10(b) grounds any 8(a)(1)
allegation that is not “closely related” to a timely filed
charge under the test set forth in Redd-I.1
On the second point, I agree with my colleagues and
the judge that the quantity and severity of the Respon-
dent’s unfair labor practices warrant special notice reme-
dies in addition to the traditional cease-and-desist and
restitutional remedies imposed here. I disagree, how-
ever, that there has been a showing of need for special
access remedies in the event that there is a second elec-
tion.2
In this regard, I note particularly that the instant case is
clearly distinguishable from those cases in which special
access remedies were granted.3 More particularly, there
is no showing that the Respondent’s unfair labor prac-
tices substantially affected the Union’s ability to com-
municate its organizational message to the Respondent’s

1 Accordingly, I would dismiss on 10(b) grounds the following
8(a)(1) allegations, regardless of whether the judge recommended dis-
missal of some of them on the merits: the allegation of threats and
promises by Respondent’s president, Albert Bossier, in speeches to
employees (judge’s decision sec. IV,A,2); the allegation of threats by
Foremen Walter Falgout, Glen Clement, Carl Mott Jr., and Timmy
Benoit (judge’s decision sec. IV,A,8, 15, 16, and 18, respectively); the
allegation of a threat by Foreman Charlie Bourg Sr. to a group of em-
ployees (judge’s decision sec. IV,B,3,g); and the allegation of a threat
by Foreman Keith Folse to employee Robert Ruiz (judge’s decision
sec. IV,B,11,a).
I agree with the judge and my colleagues that timely filed 8(a)(3)
charges are closely related to subsequent 8(a)(1) allegations when they
involve employer threats or interrogation specifically directed to the
alleged discriminatee. I would find that the specific allegation of inter-
rogation of employees in the charge filed in Case 15–CA–12207 is
closely related to subsequent allegations of interrogation within the
10(b) period of the original charge. Similarly, I would find that the
specific allegation of impression of surveillance in the amended charge
filed in Case 15–CA–12234–4 is closely related to subsequent allega-
tions of actual surveillance within the 10(b) period of the amended
charge.
2 As noted in the majority opinion, an apparent neutrality and card-
check agreement between the Respondent, under new ownership, and
the Union may negate the need for a second election.
3 E.g., Fieldcrest Cannon, Inc., 318 NLRB 470, 473–474 (1995);
and Monfort of Colorado, 298 NLRB 73, 86 (1990).
employees. The record in Case 15–RC–7767 is replete
with evidence of the Union’s frequent and extensive oral
and written communications prior to the election in that
case. Indeed, unlike the unions in Fieldcrest and Mon-
fort, the Union here actually prevailed in the election.
Although the Fifth Circuit’s opinion has invalidated
those election results, it did so because of flawed voting
procedures rather than any preelection conduct.
I also note that, unlike the cited case, Respondent’s
chief executive was not personally involved in any un-
lawful conduct. Thus, the chief executive, untainted by
past misconduct, can set a corporate tone which assures
employees of their Section 7 rights. This tone, set from
the top, would be backed by the Board’s other remedies.
These remedies include recompense of all discriminatees,
a broad cease-and-desist order, and a special requirement
that the notice be read to all current employees and
mailed to all persons employed by the Respondent since
its first unfair labor practice.
In sum, there is no showing of a need for the extraor-
dinary remedy of giving union agents access to the pri-
vate property of Respondent. My colleagues assert that
the access remedy will “serve the important purpose of
offsetting the effects of respondent’s unfair labor prac-
tices.” However, the issue is not whether the access
remedy will serve that purpose. (Presumably, it could do
so.) Rather, the issue is whether the traditional and other
remedies imposed herein would fail to adequately serve
that purpose. In my view, there has been no showing of
any inadequacy of these traditional and other remedies.
Absent such a showing, there is no need for the extraor-
dinary remedy of access.
My colleagues also note that Respondent’s senior
management failed to prevent the unfair labor practices.
However, they do not suggest that this “failure to pre-
vent” was itself an unfair labor practice. Thus, these
members of senior management are free from any unfair
labor practices and are in a good position to set a corpo-
rate tone which will assure employees of their Section 7
rights.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
AVONDALE INDUSTRIES 1073
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT discharge you or otherwise discriminate
against you because we know or suspect that you have
become or remained members of the New Orleans Metal
Trades Council, AFL–CIO, or because we know or sus-
pect that you have given aid, assistance, or support to the
Union or any other labor organization.
WE WILL NOT suspend you because you have become
or remained a member of the Union or because you have
given aid, assistance, or support to it.
WE WILL NOT issue warning notices to you because you
have become or remained a member of the Union or be-
cause you have given aid, assistance, or support to it.
WE WILL NOT assign you to more onerous work be-
cause you have become or remained a member of the
Union or because you have given aid, assistance, or sup-
port to it.
WE WILL NOT discriminate against you by denying you
telephone use privileges, or any other privileges, because
you have become or remained a member of the Union or
because you have given aid, assistance, or support to it.
WE WILL NOT refuse to hire any employee-applicant
because we know or suspect that such applicant has be-
come or remained a member of the Union or because we
know or suspect that such applicant has given, or would
give, aid, assistance, or support to the Union or any other
labor organization.
WE WILL NOT threaten you with plant closure if you se-
lect the Union as your collective-bargaining representa-
tive.
WE WILL NOT threaten you with discharge because you
have engaged in union or other protected concerted ac-
tivities.
WE WILL NOT threaten you with unspecified reprisals
because you have engaged in union or other protected
concerted activities.
WE WILL NOT threaten you with more strict enforce-
ment of work rules because you have aided or supported
the Union or because we suspect that you have aided or
supported the Union.
WE WILL NOT threaten you with discharge because you
have worn prounion insignia.
WE WILL NOT threaten you with unspecified reprisals
because you have worn prounion insignia.
WE WILL NOT threaten you with unspecified reprisals
because of your participation in a Board-conducted elec-
tion.
WE WILL NOT threaten you with discharge if you file
charges under the Act.
WE WILL NOT threaten you with unspecified reprisals if
you file charges under the Act.
WE WILL NOT interrogate you about your union mem-
bership, activities, or desires.
WE WILL NOT threaten you that we will deny you a
transfer because an unfair labor practice charge has been
filed on your behalf.
WE WILL NOT solicit your grievances and promise to
remedy them in order to discourage prounion sympa-
thies.
WE WILL NOT threaten to withhold wage increases from
you because you have been wearing prounion insignia.
WE WILL NOT threaten you with discharge or other re-
prisals because you have been seen reading prounion
literature.
WE WILL NOT instruct you to remove prounion insignia
from your clothing.
WE WILL NOT threaten you with layoffs if you select the
Union as your collective-bargaining representative.
WE WILL NOT threaten you with unspecified reprisals if
you select the Union as your collective-bargaining repre-
sentative.
WE WILL NOT instruct you not to wear prounion insig-
nia.
WE WILL NOT threaten you with unspecified reprisals
because you have mentioned the word “union” during
conversations with supervisors.
WE WILL NOT threaten you by telling you that other
employees have been discharged because of their union
activities.
WE WILL NOT threaten you by telling you that other
employees would not be reinstated because they were
prounion.
WE WILL NOT threaten you by telling you that it would
be futile for you to select the Union as your collective-
bargaining representative.
WE WILL NOT threaten you with discharge if you sign
union authorization cards.
WE WILL NOT create the impression that your activities
on behalf of the Union are under our surveillance.
WE WILL NOT threaten you that indulgences or privi-
leges would be withdrawn if you supported the Union.
WE WILL NOT promulgate any rule that precludes you
from talking about the Union.
WE WILL NOT threaten you with discharge if you talk
about the Union during working time.
WE WILL NOT threaten you with unspecified reprisals
because of your expression of interest in union activities.
WE WILL NOT solicit you to demonstrate against the
Union.
WE WILL NOT threaten you with transfer or discharge if
you continue to support the Union.
WE WILL NOT threaten you by telling you that you have
been transferred to a more onerous position because you
aided or supported the Union.
WE WILL NOT threaten your by telling you that another
employee was reassigned because he had aided or sup-
ported the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1074
WE WILL NOT threaten you by telling you that we will
engage in closer supervision of your work because you
aided or supported the Union.
WE WILL NOT order you not to take literature from un-
ion representatives or not to talk to them.
WE WILL NOT coercively interrogate you about matters
that are the subject of a Board representation election
hearing.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer the following-named employees full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.

Jose Aguilar Eddie Johnson
Edward Armstrong Marie Joseph
Dwight Ballard Charles Kent
Charles Bennett Barbara Marshall
Michael Boudreaux Joseph Melton
Johann Burton Michael Molaison
Vernon Charles Patrick Noah
Leroy Clark Audra Scott
Keith Collins Eugene Sheard
Charles Fleming Joseph Simpson
Julie George William Smith
Carlos Henriquez Donald Thompson
Vincente Hernandez Donald Varnado

WE WILL make these employees whole for any loss of
earnings and other benefits result from their discharges,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of these employees, and WE WILL, within 3
days thereafter, notify each of them in writing that this
has been done and that their discharges will not be used
against them in any way.
WE WILL make the following-named employees whole
for any loss of earnings and other benefits resulting from
their suspensions, less any net interim earnings, plus in-
terest.

Dwight Ballard Robert Ruiz
Mark Cancienne Lennie Valentine
Larry Gibson

WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspensions of these employees, and WE WILL, within
3 days thereafter, notify each of them in writing that this
has been done and that their suspensions will not be used
against them in any way.
WE WILL rescind the warning notices that were issued
to the following-named employees on or about the dates
set opposite their respective names:

Dwight Ballard April 26, 1994
Dwight Ballard May 18 1994
Dwight Ballard June 6, 1994
Dwight Ballard June 28, 1994
Harold Adams August 30, 1993
Carlos Henriquez February 1, 1994
Joe Howard October 12, 1993
Cornelius King July 30, 1993
Michael Molaison June 3, 1993
Donald Mason December 9, 1993
Donald Mason May 19, 1994
Philip Perera June 30, 1993
Philip Perera March 10, 1994
Philip Perera March 16, 1994
Darrell Smith July 23, 1993
Octave Rouege June 15, 1993(2)
Richard St. Blanc July 29, 1993
Lennie Valentine July 15, 1994

WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful warning notices that were issued to these employees,
and WE WILL, within 3 days thereafter, notify each of
them in writing that this has been done and that their
warning notices will not be used against them in any
way.
WE WILL, within 14 days from the date of this Order,
offer Mark Cancienne, Mamoru Honju, Larry Gibson,
Charles Giles, Luis Gonzalez, Loraine Moses, Sidney
Jasmine, and Richard St. Blanc full reinstatement to their
former jobs held prior to an unlawful transfer or assign-
ment to more onerous work or, if those jobs no longer
exists, to substantially equivalent positions, without
prejudice to their seniority or any other rights and privi-
leges.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the transfers
and/or assignments to more onerous work for these em-
ployees, and WE WILL, within 3 days thereafter, notify
each of them in writing that this has been done and that
these personnel actions will not be used against them in
any way.
WE WILL make Mark Cancienne whole for any loss of
earnings and other benefits that he suffered as a result of
his unlawful assignment to more onerous work.
WE WILL, within 14 days from the date of the Board’s
Order, offer Cynthia Johnson full employment in the
position for which she applied, or, if such position no
longer exists, to a substantially equivalent position, with-
out prejudice to her seniority or any other rights and
privileges.
WE WILL make Cynthia Johnson whole for any loss of
earnings and other benefits that she suffered as a result of
AVONDALE INDUSTRIES 1075
the unlawful refusal to hire her, less any net interim earn-
ings, plus interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful re-
fusal to hire Cynthia Johnson, and WE WILL within 3 days
thereafter, notify her in writing that this has been done
and that the refusal to hire her will not be used against
her in any way.
WE WILL convene during working time all employees at
our Avondale and Westwego facilities by shifts, depart-
ments, or otherwise, and have a supervisory official of our
departmental level read the notice to employees or, at our
option, permit a Board agent to read the notice with the
responsible supervisory official present when it is read.
The Board shall be afforded a reasonable opportunity to
provide for the attendance of a Board agent at any assem-
bly of employees called for the purpose of reading such
notice by an official of the Company.
WE WILL supply the Union, upon request made within
1 year of the Board’s Decision and Order, the full names
and addresses of all current unit employees employed in
our Avondale and Westwego facilities.
WE WILL, on request, grant the Union and its represen-
tatives reasonable access to our bulletin boards and all
places where notices to employees are customarily
posted in our Avondale and Westwego facilities.
WE WILL, on request, grant the Union reasonable ac-
cess to our Avondale and Westwego facilities in non-
work areas during employees’ nonworktime.
WE WILL give the Union notice of, and equal time and
facilities for the Union to respond to any address made
by us to the employees at our Avondale and Westwego
facilities on the question of union representation.
WE WILL afford the Union the right to deliver a 30-
minute speech to employees on working time prior to
any Board election which may be scheduled involving
employees at our Avondale and Westwego facilities in
which the Union is a participant in a time frame of not
more than 10 working days before, but not less than 48
hours before, such election.

AVONDALE INDUSTRIES, INC.

Ronald C. Morgan, Steven C. Bensinger, Kathleen McKinney,
Nancy Recko, and Stacey M. Stein, Esqs., for the General
Counsel.
Steven Hymowitz, Joan M. Canny, and Steven R. Cupp, Esqs.,
for the Respondent.
William Lurye, Esq., of Avondale, Louisiana, for the Charging
Party.
DECISION
I. STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case un-
der the National Labor Relations Act (the Act) was tried before
me in New Orleans, Louisiana, on 165 dates from July 11,
1994, through July 15, 1996. The case was initiated by 122
charges and amended charges that were filed by the New Or-
leans Metal Trades Council (the Charging Party or the Union)
against Avondale Industries, Inc. (the Respondent or the Com-
pany). Upon those charges as listed below, proper service of
which is admitted, the General Counsel issued four complaints
that are before the National Labor Relations Board (the
Board):1
First complaint. On May 27, 1994, the General Counsel is-
sued an order consolidating cases, amended consolidated com-
plaint and notice of hearing (the first complaint)2 upon the fil-
ing and service of the following charges: (a) the charge in Case
15–CA–12171–1, filed on June 7, 1993, which alleges the
unlawful discharge of James (Danny) Cox; (b) the charge in
Case 15–CA–12171–3, filed on June 8, 1993, which alleges the
unlawful discharge of Keith Collins; (c) the charge in Case 15–
CA–12171–4, filed on June 8, 1993,—which alleges the unlaw-
ful discharge of Michael Molaison; (d) the charge in Case 15–
CA–12171–5, filed on June 10, 1993, which alleges the unlaw-
ful discharge of Edwin Brown; (e) the charge in Case 15–CA–
12181–2, filed on June 14, 1993, which alleges the unlawful
discharge of Edward Armstrong; (f) the first amended charge in
Case 15–CA–12181–2, filed on September 24, 1993; (g) the
charge in Case 15–CA–12190–1, filed on June 22, 1993, which
alleges the unlawful discharge of Eugene May; (h) the charge
in Case 15–CA–12190–3, filed on June 22, 1993, which alleges
the unlawful discharge of Charles Giles; (i) the first amended
charge in Case 15–CA–12190–3, filed on August 17, 1993; (j)
the first amended charge in Case 15–CA–12171–1, filed on
March 8, 1994; (k) the second amended charge in Case 15–
CA–12181–2, filed on March 8, 1994; and (l) the second
amended charge in Case 15–CA–12190–3, filed on March 8,
1994.
Second complaint. On May 31, 1994, the General Counsel
issued an order consolidating cases, consolidated complaint and
notice of hearing (the second complaint) upon the filing and
service of the following charges: (a) the charge in Case 15–
CA–12203–1, filed on July 1, 1993, which alleges the unlawful
making of onerous work assignments to Richard St. Blanc; (b)
the first amended charge in Case 15–CA–12203–1, filed on
August 4, 1993, which alleges the issuance of an unlawful
warning notice to St. Blanc; (c) the second amended charge in
Case 15–CA–12203–1, filed on April 7, 1994, which alleges
the unlawful making of onerous work assignments to St. Blanc
and the unlawful issuance of a warning notice to St. Blanc (and
threats to employees); (d) the charge in Case 15–CA–03–2,
filed on July 1, 1993, which alleges the unlawful discharge of
Isador Ancar; (e) the amended charge in Case 15–CA–12203–
2, filed on April 7, 1994; (f) the charge in Case 15–CA–12211–
1, filed on July 9, 1993, which alleges the unlawful discharge
of Donald Varnado; (g) the charge in Case 15–CA–12211–2,
filed on July 9, 1993, which alleges the unlawful making of
onerous work assignments to Larry Gibson; (h) the charge in
Case 15–CA–12214, filed on July 13, 1993, which alleges the

1 For the following charges that were filed under Sec. 8(a)(3) of the
Act, I include the names of the alleged discriminatees who are the
subjects of those charges. This is done to provide a point of reference
for dispositions, infra, of certain contentions that are made by the Re-
spondent. (See sec. IV(A)(1), infra.)
2 The first complaint has the word “Amended” in its title because the
General Counsel had previously, on February 27, 1994, issued another
complaint against Respondent. All allegations of the February 27 com-
plaint were incorporated into the May 27 complaint, and the February
27 complaint will not be referred to again.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1076
unlawful discharge of Patrick Noah; (i) the charge in Case 15–
CA–12225–3, filed on July 21, 1993, which alleges the unlaw-
ful making of onerous work assignments to Walter Brown; (j)
the charge in Case 15–CA–12225–4, filed on July 21, 1993,
which alleges the unlawful making of onerous work assign-
ments to Charles Fleming; (k) the amended charge in Case 15–
CA–12225–4, filed on August 31, 1993, which alleges the
unlawful discharge of Fleming; (l) the charge in Case 15–CA–
12225–5, filed on July 21, 1993, which alleges the unlawful
discharge of Charles Bennett; (m) the charge in Case 15–CA–
12234–1, filed on July 26, 1993, which alleges the unlawful
making of onerous work assignments to Harold Dennis; (n) the
charge in Case 15–CA–12234–2, filed on July 26, 1993, which
alleges the unlawful making of onerous work assignments to
Mark Cancienne; (o) the charge in Case 15–CA–12234–3, filed
on July 26, 1993, which alleges the unlawful making of oner-
ous work assignments to Josephine Hartman; (p) the amended
charge in Case 15–CA–12234–3, filed on January 20, 1994; (q)
the charge in Case 15–CA–12234–4, filed on July 26, 1993; (r)
the amended charge in Case 15–CA–12234–4, filed on August
17, 1993; (s) the charge in Case 15–CA–12234–5, filed on July
26, 1993, which alleges the unlawful making of onerous work
assignments to Lorraine Moses; (t) the charge in Case 15–CA–
12238–1, filed on July 29, 1993, which alleges the unlawful
discharges of Peter Legeaux and Kevin Lockett; (u) the
amended charge in Case 15–CA–12238–1, filed on May 25,
1994; (v) the charge in Case 15–CA–12238–2, filed on July 30,
1993, which alleges the unlawful discharge of Donald Thomp-
son; (w) the charge in Case 15–CA–12238–3, filed on August
4, 1993, which alleges the unlawful discharge of Julie George;
(x) the charge in Case 15–CA–12238–4, filed on August 4,
1993, which alleges the unlawful issuances of warning notices
to Cornelius King and Leroy Jackson; (y) the charge in Case
15–CA–12264, filed on August 11, 1993, which alleges the
unlawful discharge of Ramona Edwards; (z) the amended
charge in Case 15–CA–12264, filed on May 27, 1994; (aa) the
charge in Case 15–CA–12275–1, filed on August 19, 1993,
which alleges the unlawful discharge of Ronald Johnson and
the unlawful issuance of a warning notice to Darrell Smith; (bb)
the amended charge in Case 15–CA–12275–1, filed on May 27,
1994; (cc) the charge in Case 15–CA–12275–2, filed on August
19, 1993, which alleges the unlawful discharge of Marie Jo-
seph; (dd) the amended charge in Case 15–CA–12275–2, filed
on August 26, 1993; (ee) the charge in Case 15–CA–12285–1,
filed on August 26, 1993 which alleges the unlawful discharges
of Octave Rouege, Dwane Braud and Marty Bourgeois; (ff) the
amended charge in Case 15–CA–12285–1, filed on May 26,
1994; (gg) the charge in Case 15–CA–12285–2, filed on Au-
gust 26, 1993, which alleges the unlawful discharges of Glenn
Zeringue and Joseph Melton; (hh) the amended charge in Case
15–CA–12285–2, filed on May 26, 1994; (ii) the charge in
Case 15–CA–12315–1, filed on September 10, 1993, which
alleges the unlawful issuance of warning notices to Harold
Adams and Luis Gonzalez; (jj) the amended charge in Case 15–
CA–12315–1, filed on May 26, 1994; (kk) the charge in Case
15–CA–12315–2, filed on September 10, 1993, which alleges
the unlawful discharge of Michael James Boudreaux; (ll) the
charge in Case 15–CA–12334–2, filed on September 24, 1993;
(mm) the amended charge in Case 15–CA–12334–2, filed on
May 26, 1994; (nn) the charge in Case 15–CA–12334–4, filed
on September 29, 1993, which alleges the unlawful discharge
of Chad Durocher; (oo) the amended charge in Case 15–CA–
12334–4, filed on May 26, 1994; (pp) the charge in Case 15–
CA–12344, filed on October 8, 1993, which alleges the unlaw-
ful discharge of Walter Brown; (qq) the charge in Case 15–
CA–12364, filed on November 3, 1993; (rr) the amended
charge in Case 15–CA–12364, filed on May 27, 1994; (ss) the
charge in Case 15–CA–12368, filed on November 9, 1993,
which alleges the unlawful discharges of Barbara Marshall and
Joseph Bush; (tt) the amended charge in Case 15–CA–12368,
filed on May 27, 1994; (uu) the charge in Case 15–CA–12438,
filed on January 11, 1994, which alleges the unlawful discharge
of Jose Aguilar; (vv) the charge in Case 15–CA–12449, filed on
January 20, 1994, which alleges the unlawful discharge of Jo-
hann Burton and the unlawful issuance of a warning notice to
Donald Mason; (ww) the charge in Case 15–CA–12454, filed
on January 21, 1994, which alleges the unlawful discharge of
Leroy Clark; (xx) the charge in Case 15–CA–12469, filed on
February 4, 1994, which alleges the unlawful discharge of Wil-
liam Smith; (yy) the charge in Case 15–CA–12476, filed on
February 8, 1994; (zz) the amended charge in Case 15–CA–
12476, filed on May 19, 1994; (aaa) the second amended
charge in Case 15–CA–12476, filed on May 25, 1994; (bbb) the
charge in Case 15–CA–12489–1, filed on February 16, 1994,
which alleges unlawful refusals to hire certain named individu-
als; (ccc) the charge in Case 15–CA–12489–2, filed on Febru-
ary 16, 1994; (ddd) the amended charge in Case 15–CA–
12489–2, filed on May 10, 1994; (eee) the charge in Case 15–
CA–12489–3, filed on February 16, 1994, which alleges the
unlawful discharge of Carlos Henriquez; (fff) the charge in
Case 15–CA–12497, filed on February 24, 1994, which alleges
the unlawful discharge of Rene Rubi; (ggg) the charge in Case
15–CA–12521–1, filed on March 15, 1994; (hhh) the amended
charge in Case 15–CA–12521–1, filed on April 28, 1994; (iii)
the second amended charge in Case 15–CA–12521–1, filed on
May 17, 1994, which alleges the unlawful discharge of Joseph
Simpson; (jjj) the charge in Case 15–CA–12578, filed on April
26, 1994; (kkk) the charge in Case 15–CA–12579, filed on
April 26, 1994, which alleges the unlawful transfer of Mamoru
Honjo; (lll) the amended charge in Case 15–CA–12579, filed
on May 27, 1994; (mmm) the charge in Case 15–CA–12611,
filed on May 17, 1994, which alleges the unlawful discharge of
Vincente Hernandez; and (nnn) the amended charge in Case
15–CA–12611, filed on May 27, 1994. A separate order that
consolidated the first and second complaints was also issued by
the General Counsel on May 31, 1994.
Third complaint. On August 19, 1994, the General Counsel
issued an order consolidating cases and consolidated complaint
(the third complaint) upon the filing and service of the follow-
ing charges: (a) the charge in Case 15–CA–12207, filed on July
1, 1993; (b) the charge in Case 15–CA–12211–5, filed on July
9, 1993, which alleges the unlawful issuance of a warning no-
tice to Phillip Perera; (c) the first amended charge in Case 15–
CA–12211–5, filed on July 27, 1993, which alleges the unlaw-
ful issuance of another warning notice to Phillip Perera; (d) the
second amended charge in Case 15–CA–12211–5, filed on
September 10, 1993, which alleges the unlawful issuance of
another warning notice to Perera; (e) the third amended charge
in Case 15–CA–12211–5, filed on March 16, 1994, which al-
leges the unlawful issuance of another warning notice to Perera;
(f) the fourth amended charge in Case 15–CA–12211–5, filed
on March 24, 1994, which alleges the unlawful issuance of
another warning notice to Perera; (g) the fifth amended charge
in Case 15–CA–12211–5, filed on June 7, 1994, which alleges
AVONDALE INDUSTRIES 1077
the unlawful issuance of another warning notice to Perera; (h)
the charge in Case 15–CA–12214–6, filed on July 15, 1993,
which alleges the unlawful issuance of a warning notice to
Vernon Charles; (i) the amended charge in Case 15–CA–
12214–6, filed on August 4, 1993, which alleges the unlawful
discharge of Charles; and (j) the amended charge in Case 15–
CA–12207, filed on October 19, 1994. Upon the General Coun-
sel’s motion at trial, and over the Charging Party’s objections, I
consolidated the third complaint for hearing with the first two.
Fourth complaint. On August 31, 1994, the General Counsel
issued another order consolidating cases and consolidated com-
plaint (the fourth complaint) upon the filing and service of the
following charges: (a) the charge in Case 15–CA–12386, filed
on November 24, 1993, which alleges the unlawful discharge of
Eugene Sheard; (b) the amended charge in Case 15–CA–12386,
filed on August 31, 1994; (c) the charge in Case 15–CA–12596,
filed on May 10, 1994, which alleges the unlawful discharge of
Audra Scott; (d) the first amended charge in Case 15–CA–
12596, filed on July 12, 1994, which alleges the unlawful issu-
ance of a warning notice to Scott; (e) the charge in Case 15–
CA–12598, filed on May 11, 1994, which alleges the unlawful
refusal to employ Scott Montecino;3 (f) the charge in Case 15–
CA–12600, filed on May 11, 1994, which alleges the unlawful
issuance of an warning notice to Robert Ruiz;4 (g) the amended
charge in Case 15–CA–12600, filed on July 27, 1994, which
alleges the unlawful denial of telephone privileges to Ruiz; (h)
the charge in Case 15–CA–12601, filed on May 11, 1994; (i)
the charge in Case 15–CA–12610, filed on May 17, 1994,
which alleges the unlawful discharge of John Joseph; (j) the
first amended charge in Case 15–CA–12610, filed on July 27,
1994, which alleges the unlawful issuance of warning notices to
Joseph; (k) the charge in Case 15–CA–12615, filed on May 19,
1994; (l) the amended charge in Case 15–CA–12615, filed on
August 2, 1994, which alleges the unlawful issuance of warning
notices to Dwight Ballard; (m) the charge in Case 15–CA–
12637, filed on June 2, 1994, which alleges the unlawful dis-
charge of Eddie Johnson; (n) the amended charge in Case 15–
CA–12637, filed on August 31, 1994; (o) the charge in Case
15–CA–12638, filed on June 3, 1994, which alleges the unlaw-
ful issuance of a warning notice to Donald Mason; (p) the
charge in Case 15–CA–12639, filed on June 3, 1994;5 (q) the
first amended charge in Case 15–CA–12639, filed on July 27,
1994;6 (r) the charge in Case 15–CA–12648, filed on June 8,
1994, which alleges the unlawful discharge of Glenda Dennis;
(s) the charge in Case 15–CA–12649, filed on June 8, 1994; (t)
the amended charge in Case 15–CA–12649, filed on August 22,
1994, which alleges the unlawful denial of a wage increase to
Kenneth Patterson; (u) the charge in Case 15–CA–12650, filed
on June 8, 1994, which alleges the unlawful discharge of
Charles Kent; (v) the charge in Case 15–CA–12651, filed on
June 8, 1994; (w) the amended charge in Case 15–CA–12651,
filed on August 18, 1994; (x) the charge in Case 15–CA–
12657, filed on June 9, 1994; (y) the amended charge in Case
15–CA–12657, filed on July 27, 1994, which alleges the unlaw-

3 This charge and the complaint allegations based upon it were dis-
missed at trial.
4 No complaint was issued on the basis of this charge; the validity of
its serving as a basis for complaint allegations is separately discussed in
Ruiz’ case.
5 This charge, however, was severed and dismissed at trial on Octo-
ber 31, 1994.
6 Id.
ful making of an onerous work assignment to Sidney Jasmine;
(z) the charge in Case 15–CA–12660, filed on June 10, 1994,
which alleges the unlawful discharge of Andre Duhon; (aa) the
charge in Case 15–CA–12661, filed on June 10, 1994; (bb) the
amended charge in Case 15–CA–12661, filed on June 27, 1994;
(cc) the charge in Case 15–CA–12701, filed on June 24, 1994;
(dd) the charge in Case 15–CA–12715, filed on June 30, 1994;
(ee) the amended charge in Case 15–CA–12715, filed on Au-
gust 26, 1994; (ff) the charge in Case 15–CA–12724, filed on
June 7, 1994, which alleges the unlawful discharge of Dwight
Ballard; (gg) the charge in Case 15–CA–12745, filed on July
19, 1994, which alleges the unlawful issuance of a warning
notice to Lennie Valentine; (hh) the charge in Case 15–CA–
12771, filed on August 4, 1994, which alleges the unlawful
discharge of Valentine; and (ii) the charge in Case 15–CA–
12781, filed on August 8, 1994. Upon the General Counsel’s
motion at trial, and over the Charging Party’s objections, I con-
solidated the fourth complaint for hearing with the first three.
In answers to the four complaints (the complaint), Respon-
dent admits that this matter is properly before the Board, but it
denies the commission of any unfair labor practices. On the
entire record and my observation of the demeanor of the wit-
nesses,7 and after considering the briefs and reply briefs that
have been filed by all parties, I make the findings of fact and
conclusions of law that are entered infra.
Overview of the Case
The Act provides:

Sec. 7. Employees shall have the right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from any
or all such activities

. . . .

Sec. 8. (a) It shall be an unfair labor practice for an
employer—
(1) to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in section 7; . . . .
(3) by discrimination in regard to hire or tenure of em-
ployment or any term or condition of employment to en-
courage or discourage membership in any labor organiza-
tion.

This case involves the resistance of an employer to an organ-
izational attempt of its employees by many alleged violations of
Section 8(a)(1) and (3) of the Act. The organizational attempt
began openly on March 2, 1993, when the Union began hand-
billing at Respondent’s gates. In NLRB Case 15–RC–7767 (the
representation case), a Board election was conducted on June
25, 1993. The tally of ballots reflected that 1804 ballots had
been cast for representation by the Union, and 1263 ballots had
been cast against such representation. There were 850 determi-
native challenged ballots. From September 27, 1993, through
March 29, 1994, Board Hearing Officer Bernard Aronstam
conducted a hearing on objections and challenges. The hearing
officer issued a report on the objections and challenges on

7 I make credibility resolutions on the basis of my observations and
appraisals of the demeanor of the witnesses and other factors to which I
may
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1078
March 27, 1995. Review of this report was still pending before
the Board at the close of this trial. Counsel for Charging Party
represented at the hearing that the organizational effort was
continuing at the time of the close of trial.8
The allegations of the complaint are based on approximately
250 separate incidents (or “alleged incidents,” because Respon-
dent denies that many occurred). There are 120 incidents upon
which the complaints base allegations that Respondent violated
Section 8(a)(1) by threatening and interrogating employees and
by engaging in other such conduct toward employees. There are
136 incidents upon which the complaints base allegations that
Respondent violated Section 8(a)(3) by discharging employees,
or refusing to hire employees, or by engaging in other such
conduct toward employees. In this decision, most of the events
that gave rise to the 8(a)(1) allegations are discussed along with
the incidents that gave rise to the 8(a)(3) allegations; this is
because most of the alleged threats and other acts of alleged
violations of Section 8(a)(1) were directed at the alleged dis-
criminatees.
For almost all of the 8(a)(3) cases, Respondent denies that its
supervisors had knowledge of any prounion sympathies of the
alleged discriminatees. For each of the cases of allegedly un-
lawful discipline, Respondent answers that its actions were
caused solely by the misconduct of the alleged discriminatees.
And, for almost all cases of alleged unlawful discipline, the
prior warnings (written or oral) are in issue. For each of the
cases of allegedly unlawful transfers, assignments or harass-
ment, Respondent answers that its actions were prompted solely
by business necessity. For each of the refusal-to-hire cases,
Respondent answers that the applicants were not needed, or
they were not qualified, or they were not bona fide applicants.
In only a few of the discharge and warning-notice cases does
the General Counsel admit that the alleged discriminatees en-
gaged in precisely the conduct that Respondent attributes to
them. The General Counsel usually denies that the alleged dis-
criminatees engaged in any misconduct; sometimes the General
Counsel denies that the alleged discriminatees engaged in the
degree of misconduct that Respondent attributes to them. For
the most part, however, I find that the alleged discriminatees
did, in fact, engage in the conduct that Respondent attributes to
them.
Anticipating that I might find that many of the alleged dis-
criminatees had engaged in some misconduct, the General
Counsel adduced a great deal of evidence in support of alter-
nate theories of disparate treatment. The General Counsel con-
tends that, even if the Board finds that the alleged discrimina-
tees engaged in part or all of the misconduct attributed to them,
other employees engaged in equivalent (or worse) misconduct
and those other employees received lesser discipline than the
alleged discriminatees—or they received no discipline whatso-
ever. All of which is to say that resolutions of virtually all of
the discharge allegations, and many of the warning-notice alle-
gations, turn on issues of disparate treatment.
In this decision, I refer to as “comparators” those employees
whom the General Counsel contends were issued no discipline,
or lesser discipline, for offenses that were equivalent to (or

8 On April 29, 1997, the Board overruled the objections and chal-
lenges and certified the Union as the collective-bargaining representa-
tive of Respondent’s production and maintenance employees. Thereaf-
ter, on October 22, 1997, the Board found Respondent to be in violation
of Sec. 8(a)(5) of the Act and ordered it to bargain with the Union.
Avondale Industries, 324 NLRB 808 (1997).
worse than) the offenses that were committed by the alleged
discriminatees. The “comparators’ cases” are recitations of
what happened (or did not happen) to the comparators. Because
Respondent disputed whether they were equivalent, the com-
parators’ cases introduced by the General Counsel were, in
essence, litigated as well as the cases of the alleged discrimina-
tees. Many warning notices that had been issued to comparators
were introduced; all such warning notices have the employees’
badge numbers, but often the names are omitted, or the signa-
tures (if any) are illegible. I have, therefore, included the badge
numbers of the comparators when discussing their warning
notices, as well as making my best effort at reading any signa-
tures. Because of remoteness, and the probable lack of probity
of the testimony that would be adduced, I rejected the General
Counsel’s offers of evidence of comparators’ cases if those
cases occurred before January 1, 1990 (that is, more than 3
years before the beginning of the organizational campaign in-
volved in this case).
In cross-examination of many of the alleged discriminatees,
Respondent offered certain unrelated warning notices that the
alleged discriminatees had received (also after January 1,
1990). Over the General Counsel’s objections, I received those
warning notices as evidence of the existence of certain rules
(which evidence did not unduly burden the record). Then, in its
case, Respondent also attempted to introduce all post-1989
warning notices for violations of selected disciplinary rules as
evidence of consistent enforcement of those rules. (One such
exhibit included 1097 electrical department warning notices.) I
admitted such warning notices where the existence of a rule
was in issue. (For example, I admitted warning notices for vio-
lations of a rule against an employee’s asking for an excessive
number of excused early departures from work because the
existence of the rule was still in issue when those warning no-
tices were offered.) Where the existence of a rule was not in
issue, however, I rejected as irrelevant (and burdensome)
Respondent’s offers of consistent treatment of other employees.
I rejected such offers because, no matter how many other em-
ployees had been discharged for, say, tardiness, the issue before
me was the real reason that an alleged discriminatee had been
discharged allegedly for tardiness although a significant num-
ber of comparators had been permitted to be tardy to the same
(or lesser) extent without being discharged.9 The cases admit-
ting evidence of disparate treatment are legion; the cases admit-
ting evidence of prior consistent treatment are few, and in each
of those few cases the General Counsel had introduced no evi-
dence of disparate treatment. In this case, the General Counsel
introduced a large amount of evidence of disparate treatment,
and Respondent made no attempt to rebut it.
This is a construction industry case. Unlike the circum-
stances of a factory, the employees do not usually stay in one
place, and they are supervised by more than one level of super-
vision. The fact recitations therefore necessarily involve resolu-
tions of differing accounts of actions that occurred in different
places. Also, all discipline of the alleged discriminatees was
reviewed by multiple supervisors, and differing accounts of
what happened at the various levels of review also are to be
reconciled.

9 A “significant number” can be one; see, for example, the cases of
alleged discriminatees Philip Perera and William Smith, as discussed
infra.
AVONDALE INDUSTRIES 1079
Further contributing to the length of this decision is the fact
that, in virtually all of the cases of alleged unlawful discrimina-
tion, knowledge of prounion sympathies is denied; in fact, Re-
spondent claims that some of the alleged discriminatees were
actively antiunion. For the most part, however, I find that the
employees who claimed that they had engaged in union activi-
ties did so; and I find that Respondent’s supervisors had knowl-
edge of those activities at relevant times.
Finally, each of the refusal-to-hire cases involves an issue of
knowledge of prounion sympathies, as well as issues about the
applicant’s qualifications for the job applied for and the bona
fides of the application.
Editing Methods and Techniques
Certain passages of the transcript have been electronically
reproduced in this decision. Proper punctuation of transcript
quotations is supplied where necessary to avoid confusion;
supplied punctuation is noted by brackets where it is arguably
significant. Corrections to the transcript are noted by citation of
volume number, as well as pages and line; for example, where I
state, “Vol. 91, p. 21,079, L. 4., is corrected to change ‘file’ to
‘final,”’ I am making reference to page 21,079, line 4, of the
transcript’s Volume 91. (Vol. 91 is the transcription of the 91st
day of the trial.) When referring to testimony, I often cite the
volume of transcript in which that testimony is to be found; for
example, “Doe (vol. 21) testified . . . would be an indication
that Doe testified on the 21st day of trial and that his testimony
may be found in that volume of the transcript.”
Ellipses between questions and answers indicate that an ob-
jection has been overruled. I eliminate, without ellipses, many
introductory remarks such as “Thank you,” “All right,” and
“Okay,” from quotations of questions to the witnesses. Many
extraneous testimonial usages of “you know” are also omitted
without indication by ellipses. When witnesses quote them-
selves (or others), and they re-affirm who is talking, I eliminate,
without indication by ellipses, one or the other of the affirma-
tions; e.g., “And I told him, you know, I said that” becomes
“And I said that” Where a witness “backs up” and corrects
himself, and the correction is meaningless, I have entered the
correction without ellipses; e.g., “I called our security—not
security—our safety department” becomes, “I called our safety
department.” Also, where lawyers “back up” and re-start
quoted questions to witnesses, I omit the surplusage (e.g.,
“Didn’t he—I mean she—ask you” becomes “Didn’t she ask
you” I have not changed any of the witnesses’ words, but I have
inserted bracketed words within quotations of testimony for
purposes of clarity and context, and to correct meaningless
errors in the testimony. (For example, “he workmanship” be-
comes “[his] workmanship.”) Generally, typewriter-style quota-
tion marks (“X”) are those that have been entered by the re-
porter; typographic quotation marks (“X”) are those that have
been entered by me; however, I also use typewriter-style quotes
when quoting exhibits that themselves contain quotation marks.
Where the originals of quoted exhibits contain insignificant
grammatical errors, I often enter corrections without indication
rather than use “[sic].” (I do not make grammatical corrections,
or use “[sic]” for grammatical errors, in quotations of the testi-
mony.) In the quotations of transcript, any parenthetical “[sic]”
is the entry of the reporter; any bracketed [sic] has been entered
by me. Capitalizations and underlines in quotations of exhibits
are original.
For purposes of economy only, and certainly with no disre-
spect intended, I eliminate “Jr.,” “Sr.,” “III,” and middle initials
from the names of all witnesses, except where such entries are
necessary to distinguish between individuals who have the
same last names. (In this decision there are two employees
named Michael James Boudreaux; one is an alleged discrimina-
tee, the other is not. There are also two employees named
Glenda Dennis; one is an alleged discriminatee, the other is not.
References to Michael James Boudreaux or Glenda Dennis are
to the alleged discriminatees, unless otherwise indicated. Also
mentioned in this decision are two individuals named Ronald
Johnson; one is an alleged discriminatee, the other is a supervi-
sor; all references to Ronald Johnson are to the alleged dis-
criminatee, unless otherwise indicated.)
The Charging Party was represented at trial by most able
counsel; however, the ultimate positions of the Charging Party
were, and are, usually the same as those of the General Coun-
sel. Therefore, for purposes of economy, when I express the
position of the General Counsel, I include the position of the
Charging Party, unless otherwise indicated.
II. JURISDICTION
Respondent admits that it is a corporation with an office and
place of business at Avondale, Louisiana, its facility or plant,
where it is engaged in business as a shipbuilder. During the 12-
month period ending January 31, 1994, the Respondent sold
and shipped from its facility goods valued in excess of $50,000
directly to customers located at points outside Louisiana. Dur-
ing the same period of time the Respondent purchased and
received at its facility goods valued in excess of $50,000 di-
rectly from suppliers located at points outside Louisiana. There-
fore, at all material times, Respondent has been engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
As Respondent further admits, at all material times, the Un-
ion has been a labor organization within the meaning of Section
2(5) of the Act.
III. RESPONDENT’S OPERATIONS AND BACKGROUND OF THE CASE
A. Respondent’s Physical Facilities and Business
Respondent operates two physical plants that are involved in
this case. Respondent’s Avondale plant (the main plant, or the
main yard) occupies about 250 acres on the west bank of the
Mississippi River, about 10 miles upriver from New Orleans.
Respondent’s Westwego yard (Westwego) occupies about 28
acres of the Mississippi River’s west bank, about 5 miles down-
river from the main yard.
At its main yard (which is the only yard referred to here,
unless the Westwego yard is specifically mentioned) Respon-
dent builds oceangoing ships for the Navy, and it does some
commercial (drydock) repair work. At Westwego, Respondent
builds barges and casino boats. From the 1980s through 1995,
Respondent built (or partially built, or was under contract for):
nine landing-ships-dock (LSDs; 609 feet long and 12,000 tons-
displacement),10 16 auxiliary oilers (TAOs; 678 feet long and
16,000 tons-displacement); four fiberglass hull mine hunters
(MHCs; 180 feet long and 900 tons-displacement); and one
oceanographic research vessel (the T-AG; 420 feet long and
4000 tons-displacement).

10 LSDs were also referred to as “LSD-CVs” for “cargo variant.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1080
Except for Respondent’s frontage along the Mississippi
River, a fence, with many gates, surrounds all of the main-yard
property. A Mississippi River levee (the levee) winds through
the property. The yard is divided into the fabrication side and
the assembly side of the levee. The fabrication side (or “area”)
is located on the “land” side of the levee (i.e., between the
fence and the levee); the assembly side is located between the
levee and the River.
On the fabrication side, construction steel is received by
railway. Heavier pieces of steel are delivered throughout the
yard by Respondent’s internal rail system; there is one work-
train that consists of an engine-unit (that has a crane) and a flat-
car unit. In the plate shop, steel is cut and shaped for the hull.
At other points in the fabrication area, construction is begun by
the manufacture of modules or “units” that ultimately become
the various compartments and areas of a ship. (For example,
storage rooms, engine rooms, and fuel tanks are all fabricated
as units before they reach a ship that is under construction.)
These units, when finished, contain up to 80 tons of steel; the
exterior dimensions of some of the units are as large as 35-feet,
by 50-feet, by 20-feet high. The units are constructed on “plat-
ens,” which are large concrete slabs. Construction of the units
is conducted on jigs, or stanchions, which support the units at
heights that are from 5-feet to 12-feet above the platens. When
the larger units are completed to a certain point, “transporters,”
which are vehicular platforms with 250-ton lifting capacities,
are driven under the units. The transporters lift the units from
the stanchions and carry them to a point in the assembly area
where a keel has been laid and a hull has been assembled.
Respondent has about 16 gantry cranes; a gantry crane is a
100-foot-high11 crane that move on 35-foot-wide tracks; each
gantry crane has a lifting capacity of over 100 tons. When a
unit arrives in the assembly area on the transporter, a gantry
crane lifts it from a transporter into a hull. After being lifted
into a hull, the units are welded together; then begins construc-
tion of connecting facilities (involving countless wires and
pipes) between the units and other parts of the ship. The super-
structures of ships, and the bow and stern assemblies, are also
built as units. These are much heavier units, and they are built
on platens that are located immediately in the areas of the hulls,
on the assembly side of the levee. These units are lifted to the
keel (or into the hull) by gantries that work together.
At some point, usually when construction is about three-
quarters finished, a ship is launched by side-launch procedures.
“Launchways” are I-beam-type structures across which a keel
has been laid. Side-launches are accomplished by hydraulically
pushing the partially assembled ships on launchways toward
the water. When they are in the water, the final finishing (con-
nections, painting, and repairing, etc.) is performed. Ships are

11 In a question that I once addressed to a witness (vol. 73, p. 15,
894), I incorporated an assumption that one “might” see these tall
cranes as he drove on the public road that passes by the main yard.
Contrary to an assertion made by Respondent on brief (page “Steel
Control-15”), I did not thereby acknowledge that I had once made some
sort of surreptitious, ex parte, inspection of the plant’s perimeter. Re-
spondent’s counsel calls my conduct “highly improper,” and she further
calls my questioning of the witness on the point “audacity.” Respon-
dent did not make any of these assertions at any time during trial, and I
am loathe to dignify them with a response on any account. For possible
purposes of review, however, I here state that I have never been in the
vicinity of Respondent’s plant.
tested (and re-tested) by Respondent before final sea-trials12
and acceptance by the Navy. From contract-award to accep-
tance by the Navy, it takes about 30 months for the completion
a ship.
Except for the incidents that occurred on and around the
platens, most of the events of this case occurred on ships that
were either on the ground or in the water. Levels of the ships
are designated by number. On an LSD, the type of ship most
often involved in this case, the first deck below the main deck
is the second deck; and below the second deck is the well deck,
or storage deck; below the well deck is the engine level. The
very bottom of a ship is called the “grade line.” Some decks are
not complete spans of the ship; i.e., the second deck, or level,
may be just a walkway above the perimeter of the well deck.
The super-structure of a ship is called “the house of the ship” or
“the house.” The house includes the living quarters and, of
course, the bridge. Above the main deck, the levels of the su-
per-structure are numbered “01,” usually up to “06.” Above the
main deck, aft of the house, is the helicopter deck (or “Helo
deck,” as the witnesses sometimes called it). During construc-
tion, many of the supervisors’ offices were on the helicopter
decks. Those offices, like many of the supervisors’ offices on
land, were often converted containers that had once been used
in containerized-freight shipping.13
B. Employee Complement and Supervisory Structure
During the relevant periods, Respondent employed approxi-
mately 4100 production and maintenance employees. Overall
supervision of these employees is vested in Albert Bossier,
corporate president and chief executive officer. Reporting di-
rectly to Bossier are, inter alia, Ed Mortimer, corporate vice
president and shipyard manager, and Ernest Griffin, vice presi-
dent over personnel matters which are administered by Re-
spondent’s human resources department. Reporting directly to
Griffin is Julie Bolden, the manager of employment. Reporting
to Bolden is Bruce Nunez, Respondent’s placement supervisor.
(As his title would imply, Nunez oversees the hiring processes,
but, as will be seen, his responsibilities encompass much more.)
Michael Simpson, vice president for production, reports to
Bossier through Mortimer.14 (Simpson, much more than Griffin
or his subordinates, was involved in the disciplinary issues that
arose in this case.) Reporting directly to Simpson are several
production vice presidents, some of whom are mentioned in
this decision including: (1) Emil Foret Sr., vice president in
charge of ship-construction which includes the following de-
partments: welding (mostly structural), shipfitting (mostly non-
structural welding), paint, cleanup-during-construction (CDC),
and rigging; (2) Caroll Danos, assistant vice president to Foret
and successor to Foret when the latter retired on June 1, 1994;
(3) Ken Genter, vice president in charge of ship-outfitting
which includes the following departments: pipe, electrical,
sheet metal, and insulating/carpentry; and (4) Eugene Blanch-

12 At various points, the transcript uses “C-trials” instead of “sea tri-
als,” and it is accordingly corrected.
13 Glossary notes: On a ship, a floor is a deck; a wall is a bulkhead; a
ceiling is an overhead; a set of stairs is a ladder; a straight ladder is a
ladder in the ordinary sense; and a hallway is a passageway; a gangway
is an inclined walkway between a ship and the ground.
14 Barry Heaps, vice president in charge of the Westwego operations,
is the counterpart of Simpson at Westwego.
AVONDALE INDUSTRIES 1081
ard, vice president in charge of production control and steel
fabrication.15
Reporting to Simpson (and his staff of vice presidents) are
400 supervisors in 16 construction departments (such as weld-
ing, pipe, electrical, etc.). Each department is known by a two-
digit number.16 The employees of each department wear color-
coded hardhats.17 As well as wearing the proper color of hard-
hat, each employee is required to have his department’s number
stenciled on each side of his hardhat and his badge number
stenciled on the back. The employees’ badge numbers are of
vital importance in the vicissitudes of the yard’s life; in many
of the written exchanges quoted here, employees were referred
to by their badge numbers rather than their names.18
Each of the 16 construction departments has one superinten-
dent who reports directly to Simpson and his subordinate vice
presidents; some of the departments have assistant superinten-
dents. There are approximately 40 general foremen and ap-
proximately 350 first-line foremen (foremen or line foremen).
Approximately 200 superintendents, assistant superintendents,
general foremen, and foremen are mentioned in this decision.
Respondent formally admits, or stipulates, that most of those
mentioned as foremen are supervisors within the meaning of
Section 2(11) of the Act (supervisors). There are, however, no
admissions or stipulations of supervisory status for several
other individuals who were named as foremen by witnesses,
and it is necessary to make findings and conclusions on the
status of those individuals.
Griffin, Respondent’s vice president for personnel, testified
(vol. 28) that all individuals who are classified as foremen19
have the authority: (1) to issue to employees written discipli-
nary citations for misconduct, (2) to allow employees to leave
work early, (3) to effectively recommend employees for wage
increases, and (4) to effectively recommend discharges of em-
ployees. Upon these admissions by Griffin, I find and conclude
to be supervisors within the meaning of Section 2(11) of the
Act those individuals whose classifications as foremen are not
in dispute. For individuals whose classifications as foremen at
relevant times are in dispute, subsequent findings and conclu-
sions will be entered.
Some general foremen functioned as assistant superinten-
dents, although they did not have the title at the time of the
events in question.20 Some foremen acted as “lead foremen.”
The lead foremen did not have their own crews; rather, they
acted as general foremen, or assistants to the general foremen,
in coordinating the work of the other foremen who did have
crews. Foremen’s crews varied in numbers from 6 to 30 em-

15 I substantially rely upon Blanchard’s testimony (vol. 67) for the
above synopsis of the production processes.
16 Relevant department numbers are: 01, paint; 05, welding; 06, pipe;
08, electrical; 09, sheet metal; 15, CDC; and 23, operators.
17 Relevant hardhat colors are: paint, purple; welding, yellow; pipe,
green; electrical, blue; sheet metal, gray; CDC, black; and shipfitting,
orange.
18 Badge numbers were often referred to by witnesses and lawyers as
“clock numbers.” Respondent has over 100 timeclocks in the main
yard, each of which has a number, but the distinction is always clear
from the context.
19 Actually, Griffin used the term “salaried foremen,” but Brian Pon-
ville, an admitted supervisor in the commercial repair department, is the
only foreman who was mentioned during the hearing as being nonsala-
ried.
20 The best example of this was Electrical Department General
Foreman Gerald Gerdes who figures prominently in this decision.
ployees, but usually they numbered about 12. Foremen wear
white hardhats; they have a “W” or “S,” as a prefix to their
badge numbers21 which are stenciled on their hardhats. As a
group, foremen, and those classified above the level of fore-
man, were referred to by the witnesses for both Respondent and
the General Counsel as “white hats.” For example, Welding
Department Foreman Robert Ramirez at one point testified
(vol. 134) that he was “a white hat”; when asked what he meant
by that term, Ramirez replied, “Supervisor. You know, that is
what they call us, a white hat.” (Employees in the classifica-
tions of operators and inspectors also wear white hardhats, but
these individuals are few in number, and there is no testimony
that they were ever confused with foremen, general foremen, or
superintendents.)
The production and maintenance employees are classified as
either mechanics or helpers. A first-class mechanic is the most
skilled in a craft; a fourth-class mechanic is the least skilled of
the mechanics, but he is more skilled than any of the helpers.
There are six levels of helpers, level six being the entry level.
For example, a person without skills may be hired and placed in
the paint department where he could progress from sixth-class
to first-class helper, then from fourth-class to first-class me-
chanic. Mechanics are further classified according to the type
of work that they usually do; e.g., a mechanic in the electrical
department could be a third-class internal-communications
electrician or a first-class power electrician.
C. Respondent’s Progressive Disciplinary System-The
“Avondale Employees’ Guide”
Since at least 1990, Respondent has distributed to employees
and supervisors a booklet entitled “Avondale Employees’
Guide.” The Avondale Employees’ Guide begins with state-
ments of company policies and employee benefits, and it con-
cludes with a section on discipline. The disciplinary section of
the Avondale Employees’ Guide contains a complex progres-
sive disciplinary system that begins with:

WORK GUIDES

When an employee has violated one or more of the
Company rules, he22 will be penalized through the use of a
warning system according to the nature and/or severity of
the offense. Warnings may be issued by all supervisors,
but usually they will be handled by the immediate supervi-
sor of the person involved. Violations of the Company
rules are divided into three categories: (1) General Of-
fenses, (2) Major Offenses, and (3) Immediate Discharge
Offenses. However, while these categories are useful, not
every “offense” can be listed, nor will the particular cir-
cumstance surrounding an offense fit within a category.
Accordingly, Avondale reserves the right to determine the
disciplinary action to be taken for any employee conduct
regardless of whether it is presented in the following list of
offenses.

PENALTIES FOR GENERAL OFFENSES

Commission of any of the General Offenses may result
in the following penalties, although in any particular case
the penalty may be more severe up to and including dis-
charge for the first offense, depending on the seriousness

21 Even salaried foremen have badge numbers.
22 Of course, the pronoun “he” is intended to be unisex in Respon-
dent’s handbook, as it is in this decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1082
of the offense. Generally, these offenses will result in the
following penalties:
FIRST OFFENSE—written first warning notice
SECOND OFFENSE—final written warning or dis-
charge
THIRD OFFENSE—discharge

Immediately after this statement of a progressive disciplinary
system for general offenses, the Avondale Employees’ Guide
then lists 16 types of misconduct that are general offenses;
pertinent to this case are the following:

1. Unexcused absences of three (3) working days
within a 30-day period.
2. Tardiness three (3) times within a 30-day period.
3. [N]ot properly displaying your identification badge
when entering the plant or on request of the supervisor or
security personnel.
4. Wasting time, loitering or leaving the working place
without permission.
5. Quitting work, washing up, or going to the time-
clock area before the specified time.

. . . .

8. Defacing the Company property.

. . . .

11. Posting or removing of any material on bulletin
boards located on Company property or on any structure
controlled by the Company without prior approval.
12. Violation of Company Safety Rules and Regula-
tions through carelessness.
13. Parking and traffic violations within Company-
controlled areas.

Following the listing of general offenses, the Avondale Em-
ployees’ Guide states:

PENALTIES FOR MAJOR OFFENSES:

Commission of any of the Major Offenses may result
in the following penalties, although in any particular case,
the penalty may be more severe up to an including dis-
charge for the first offense, depending on the seriousness
of the offense.
FIRST OFFENSE—written final warning or discharge
SECOND OFFENSE—discharge

The Avondale Employees’ Guide then lists 24 types of miscon-
duct that are major offenses; pertinent to this case are the fol-
lowing:

1. Unexcused absences of three (3) consecutive work-
ing days.
2. Intentional negligence, inefficiency or failure to
complete [the] job assigned.

. . . .

7. The unauthorized use of another person’s badge or
pass or permitting another person to use an employee’s
badge, gate pass, vehicle pass or parking pass for any un-
authorized purpose.

. . . .

11. Unauthorized entry to or exit from Company prem-
ises at any location at any time. . . .
12. Deliberate interference with or failure to comply
with instructions given by a Plant Protection Officer, Se-
curity Representative or other proper authority in the per-
formance of his duties. . . .
20. [Lengthy, facially valid, no-solicitation rule fol-
lowed by:] The only exceptions permitted are solicitations
authorized by the Company on bulletin board notices
which are posted and signed by Company management.
21. [Lengthy, facially valid, no-distribution rule fol-
lowed by:] The only exceptions permitted are the distribu-
tions of written materials authorized by the Company on
bulletin board notices which are posted and signed by
Company management.

Following the major offenses, the Avondale Employees’ Guide
lists:

IMMEDIATE DISCHARGE OFFENSES:

1. Insubordination. Willful disobedience of authorized
instructions issued by supervision.
2. Sleeping or deliberate loafing during hours of work.
3. Theft, [or] unauthorized removal [of,] or willful
damage to[,] any property belonging to another employee,
to the Company, or to a customer of the Company.
4. Committing any act of violence against another em-
ployee, including fighting on Company premises, other
than in provoked self-protection.
5. Gambling in any form, including the selling of
chances, pool tickets, bookmaking or any other lottery on
Company premises at any time.

In a separate section, the Avondale Employees’ Guide states a
“call-in” rule:

REPORTING ABSENCES AND TARDINESS

It is the employee’s responsibility to notify his super-
visor or department head’s office of the reason for his ab-
sence or tardiness on a daily basis. Failure to do so will re-
sult in either a written warning or discharge.

Failure to give such notification is not listed in the Avondale
Employees’ Guide as either a general offense, or a major of-
fense, or an immediate discharge offense; however, as stated,
failures to give notification of absences are equated with the
major offenses by the Avondale Employees’ Guide because its
progression of discipline is the same.
Warning Notices
The written warning notices to which the Avondale Employ-
ees’ Guide refers are also known as “citations.” The preprinted
form for warning notices is Respondent’s “ASI-126” form.23
Form 126 has a caption of “WARNING NOTICE”; the heading
consists of blanks for the name of the employee being warned,
his badge number, his department, the name of the depart-
ment’s superintendent, and the date. Then follows a preprinted
statement that: “THIS WILL CONFIRM OUR
CONVERSATION OF TODAY, IN WHICH YOU WERE
INFORMED OF THE FOLLOWING.” The form then states to
supervisors: “Please check infraction number below.” Then
follow rows of boxes with numbers corresponding to the num-

23 Several documents that are in evidence refer to Respondent as
“ASI.”Avondale Shipyard Industries is a divisional name of Respon-
dent.
AVONDALE INDUSTRIES 1083
bers of general offenses and major offenses that are listed in the
Avondale Employees’ Guide. The last box in each row is des-
ignated (for checking) “other.” Below the boxes are areas for
entry of the “Date and Time of Issuance of Notice,” and “Date
and Time of Offense.” Then follow six blank lines for entry of
the “Reason for Warning (Explain Fully).” Sometimes supervi-
sors did “explain” what happened; other times, the supervisor
simply repeated the text of the rule that he believed to have
been violated. (For example, the box for general offense-4
might be checked, and the only explanation that is entered by
the supervisor is a quotation of the offense as stated in the
Avondale Employees’ Guide: “Wasting time, loitering or leav-
ing the working place without permission,” rather than some
description like “Doe wandered away from his painting job and
we couldn’t find him for X minutes.”) Immediately below the
lines for explanation of the offense are two lines for entry of the
signatures of “Supv. or Department Head,” and “Witness.” The
persons signing as supervisor or “Department Head” was usu-
ally the supervisor who witnessed the alleged employee infrac-
tion. Other times the name of the department head, or superin-
tendent, was entered as a matter of form, and the issuing super-
visor signed as the “Witness.” The “Witnesses” blanks were
sometimes signed by those who were witness to the deliveries
of the warning notices, and sometimes those blanks were
signed by those who only witnessed warning notices being
drafted and signed by supervisors. (That is, the term “witness”
on the warning notices was used rather loosely.) Usually, su-
pervisors signed the spaces for witnesses, but employees did
sign as witnesses on at least some warning notices that are in
evidence.24 To the side of the supervisor’s and witness’s signa-
ture blanks is a blank for “Employee Acknowledgment.” (Em-
ployees were not required to acknowledge the receipt of warn-
ing notices, and many of the warning notices that were received
in evidence have, usually hand-entered, in the last blank, “Re-
fused to Sign.”) Then, after a bold double line, there is a five-
line area for entry of “EMPLOYEE COMMENT.” These
comments are also voluntary.25 Finally, the (triplicate, multi-
color) warning notice forms have printed at the bottom:
“WHITE ORIGINAL TO EMPLOYEE/PINK COPY FOR
SUPV. FILE/GREEN COPY TO PERSONNEL.”
Although the Avondale Employees’ Guide states that an em-
ployee may be discharged for his second general offense, every
supervisor who was asked admitted that employees were not
“typically,” or “usually, discharged until at least a third offense
(general or major) occurred.
The Avondale Employees’ Guide does not expressly state
within what period of time three accumulated warning notices
will, or may, precipitate a discharge. In statements to the Re-
gion during the investigation of 8(a)(3) charges, however, Re-
spondent’s counsel stated Respondent’s policy in that regard. In
a letter to the Region dated October 15, 1993, counsel states:
“ASI’s policy [is] that three warning notices within a 12-month
period results in termination.” Also, in a letter to the Region
dated February 4, 1994, counsel states: “In accordance with
ASI policy, if an employee receives three warning notices

24 For example, alleged discriminatee Joseph Melton signed as a
witness on warning notices issued by Pipe Department Foreman James
Walker. (Compare R. Exhs. 361 and 363 with the G.C. Exh. 72.)
25 In this decision, I do not consider probative of anything employees
comments that were purely self-serving. I do consider, however, em-
ployee comments that contain admissions against their interests or
comments which were otherwise shown to contain relevant matter.
within a twelve-month period, the employee should be termi-
nated.” Moreover, all supervisors who were asked, except one,
testified that they do not count against employees warning no-
tices that are over 12 months old.26 For example, Electrical
Department Superintendent Robert Terry testified (vol. 93) that
when contemplating discharging an employee for multiple dis-
ciplinary offenses: “I look at the entire file. . . . But the ones
that are accountable, yes. The ones that really forge my final
decision, my judgment, are the most—the current ones within
the 12-month period.” Or, as Welding Department General
Foreman (and, in effect, assistant superintendent) Ernest Foret
Sr. testified (vol. 100): “In other words, every month to the
year, the old ones are torn away and are no good. After a year,
the citations are no good.”
Another form relevant to this proceeding is Respondent’s
form “ASI-22” which is entitled: “Personnel/Payroll Change
Authorization.” The form is used for recording discharges, pay
changes, and other changes in an employee’s tenure. The forms
are initiated in the offices of the departmental superintendents
which send them to the human resources department (or “Per-
sonnel” department, as stated on the ASI-126 forms and as
named by many witnesses and all lawyers) for approval. After
approval (which can involve vice presidents), a copy is returned
to the production department. Although ASI-22 forms could be
used for wage increases, transfers, and other changes, the dis-
cussions in this case center almost entirely on their usages in
discharge situations; therefore, when I refer to an “ASI-22
form” I am indicating a discharge form, unless otherwise indi-
cated.
(The ASI-22 forms became business records when com-
pleted, and, for some of the information they contain, they con-
stituted admissible hearsay under Federal Rules of Evidence
803(6). (This would include bookkeeping-type matters such as
the dates of discharges, changes in pay rates, etc.) On each
ASI-22 form there is also an area for “Explanation For Action.”
In these areas, superintendents (and sometimes general fore-
men) entered statements of why discharges had occurred. Usu-
ally these statements relied on reports that, in turn, had been
made to the superintendents or general foremen who completed
the forms. I rejected these forms when Respondent offered
them solely as proof of the reasons for the discharges of alleged
discriminatees. I did this because I wished to have sworn,
cross-examined, testimony of those reasons rather than post hoc
constructions that had not been sworn to and had not been sub-
ject to cross-examination. That is, as contrasted with available,
sworn, cross-examined testimony, I considered the “source of
information or the method or circumstances of preparation [of
the ASI-22 forms to] lack trustworthiness” within Federal
Rules of Evidence 803(6). Certainly, if I believed that a super-
visor’s trial testimony was incredible, I would not change my
mind because he had previously stated on a ASI-22 form an
ostensibly valid reason to his superiors in his production de-
partment or his superiors in the human resources department.
Knowing this, I further rejected the ASI-22 forms as lacking in
probative value under Federal Rules of Evidence 403. There-
fore, if there was an objection, I did not allow Respondent to
introduce such entries solely as statements of the true reasons

26 This one supervisor was CDC Department Superintendent Leroy
Cortez who, in the case of alleged discriminatee Julie George, testified
(vol. 96) to one circumstance in which he would count against an em-
ployee a warning notice that was more than 12 months old.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1084
that given alleged discriminatees had been discharged. I did
receive ASI-22 forms when probative value was shown; e.g.,
where the existence of a rule was an issue and the proffered
form reflected that comparators had been discharged for viola-
tion of that rule. Also, where an entry in an “Explanation For
Action” space on a completed ASI-22 form reflected an argu-
able admission against interest, I allowed the General Counsel
to introduce the form into evidence.)
A final form to be mentioned here is each employee’s “per-
sonnel card.” These cards are maintained by the human re-
sources department and they list (in addition to names, ad-
dresses, etc.) information supplied by the production depart-
ments. This information includes raises (marked as general or
merit), changes in classifications, and transfers between de-
partments. At the bottom of each card is listed the dates of
warning notices that have been issued to the employee, but
there are never any indications of what offenses caused the
warning notices. If an employee has been separated, an indica-
tion of his last day to have worked is indicated (as “LDW”).
D. Respondent’s Timekeeping Procedures
For designations of time, Respondent’s timekeeping system
utilizes the 24-hour clock for hours and decimal-equivalents for
minutes; e.g., a designation of “14:30” is not 2:30 p.m., as
would be the case if the military timekeeping system were em-
ployed; for Respondent’s records “14:30” is 2 p.m., plus 30
percent of the following hour, or 2:18 p.m. (And the civilian
time of 2:30 p.m. is “14:50” under Respondent’s system.) In
my narrative I shall use the usual, “civilian,” designations of
time. E.g., if something happened at 2:30 p.m., I will refer to
2:30, not “14:50.” If an entry on some documentation of an
event (such the entry of time of an offense on a warning notice)
uses “14:50,” I shall indicate my conversion by quoting it as
“[2:30].” As most events occurred on the day shift, I shall not
always add “a.m.” or “p.m.”; it should be understood that times
from 7 through 11:59 are a.m., and 12:01 through 3:30 are p.m.,
unless otherwise indicated.
The hours of the first shift are from 7 a.m until 3:30 p.m. The
vast majority of the employees, including most of the alleged
discriminatees, worked the first shift. In this decision, unless
otherwise specified, all events that are described occurred dur-
ing, or immediately before or after, the first shift; and the
events involved only first-shift employees. The hours of the
second shift are from 3:30 to midnight. The hours of the third
shift are from 11 p.m. until 7 a.m. There are half-hour unpaid
lunchbreaks on the first and second shifts; there is none on the
third. The second and third shifts are sometimes staggered for
business necessities; e.g., certain crews will report at 2 p.m and
leave at 10:30 a.m. Some shifts, especially staggered shifts, are
worked without a lunch period; e.g., a crew of employees may
be told to report at 2 p.m and leave at 10 a.m, with no sched-
uled lunch period.
Respondent schedules no paid breaks for the employees;
however, virtually all of the foremen who testified acknowl-
edged that they allow rest breaks of about 10 minutes in the
mornings, or afternoons, or both. During these breaks employ-
ees are allowed to eat and drink what they carry with them;
some foremen also allow employees to leave their work areas
to go to vending machines in the yard to buy snacks and canned
sodas. The pervasiveness of this practice is an issue in this case.
Man-Hour Control Reports
About 100 timeclocks are located throughout the yard. Em-
ployees are assigned badges that can be inserted into any time-
clock as they enter or leave the yard.27 The timeclocks elec-
tronically read the badges and record the punch-in/out times
and credit those times to the employees’ badge numbers. The
punch-in/out times are recorded on daily “Transaction Regis-
ters,” but the employees are not paid strictly according to those
records, as will be discussed below.
Each foreman maintains a daily “Man-hour Control Report”
(MCR) for the employees whom he supervises. MCRs have
been in use by Respondent since 1990. The heading of each
MCR contains spaces for entry of the foreman’s (and crew’s)
department number, the date, the area of the yard in which the
crew is working that day, and the supervisor’s badge number.
The body of each MCR contains 23 rows and 10 columns; each
row is dedicated to one employee, and information about what
the employee did that day is entered in the column spaces of
each row.
The columns of the MCRs are designated for entries of: (1)
the employee’s badge number; (2) his signature; (3) his starting
time; (4) a job account number (this is the number of the con-
tract for the ship upon which the employee is working); (5) a
work-order number, or cost-code number, for the employee’s
work (this is the budget authorization for the employee’s activ-
ity during the time indicated); (6) his “time out”; (7) the fore-
man’s, or timekeeper’s, corrections (divided into two subcol-
umns for initials and date); (8) codes for the employee’s ab-
sence, if any; this column is divided into three subcolumns
headed: (a) “34,” a code for indicating that the employee is
using a vacation day that day; (b) “68,” a code for indicating
that an employee is working with no lunchbreak scheduled; and
(c) “other,” for entry by the foreman of other codes to catego-
rize absences as excused, unexcused, or otherwise, as discussed
below; (9) time of the employee’s “late arrival,” if any; this
column is divided into two subcolumns for entries of time that
the shift started and the (later) time that the employee actually
started working; and (10) the foreman’s comments (this section
is usually left blank, but sometimes the foreman enters codes
for, or descriptions of, certain actions that occurred during the
shift, as discussed infra).
As employees are moved from one job account to another, or
from one cost code to another, they may sign in and out more
than once during a day on the same MCR. They also sign out,
and sign back in, when they go to the medical department (of-
ten called the “First Aid Department”), to meetings conducted
by Respondent, or to attend to personal business elsewhere in
(or out of) the yard. The employees will sign different MCRs
during a day if they are reassigned from one foreman’s crew to
another.
Foremen usually report to work at least one-half hour before
the shift starts. During that time, the foreman will enter on the
rows of the MCR the badge numbers of the employees whom
he expects to be on his crew on that day. The foreman will also
enter the work order number, and the cost-code number of the
first (and sometimes only) job that the employee will be work-
ing on that day.
At the beginning of each day, each employee enters his start-
ing time on the MCR in the row that his foreman has desig-

27 And for a supervisor to take an employee’s badge is an act of dis-
charge.
AVONDALE INDUSTRIES 1085
nated for his badge number. If the employee is late, the foreman
may tell him to enter the time at which his pay should start.
(For example, if an employee is scheduled to arrive at 7, and he
actually arrives somewhere between 7 and 7:15, his foreman
may tell him to enter 7:15 as his starting time, and the em-
ployee will be paid from that point, no matter when he punched
in.) At the end of the day, the foreman enters the employee’s
“time out” and presents the MCR to the employee for signature.
(At the top of the signature column is preprinted: “My signature
certifies that I worked on the job as indicated for the time
shown.”) Throughout the hearing, witnesses used the term
“sign in” to describe what the employees do when they meet
their foremen at the beginning of a shift. Employees do not
place their signatures on MCRs until the end of a shift. By say-
ing “sign in” the witnesses clearly intended to indicate their
entries of their starting times in the appropriate column, not the
affixation of their signatures. In this decision I also use the term
“sign-in,” and I also mean that the employee has met with his
foreman and has entered his starting time on the foreman’s
MCR.
The “other” subcolumn for coding absences is most impor-
tant for many aspects of this case; many employees were disci-
plined for excessive absenteeism, but the codes are important
for other issues, as well. At the bottom of each MCR is listed
the following key for “Absentee Codes”:

02—Non-workday
03—Jury Duty
04—Terminated
05—Excused
06—Unexcused
07—Occupational Injury
08—Personal illness
09—Vacation

When an expected employee does not appear at the beginning
of a shift, the foreman enters one of these codes for him on the
MCR, sometimes after consulting with his superintendent’s
office to see if that employee had called in and given a reason
for his absence.28
At the end of each workday, foremen enter on their daily
MCRs the “Time Out” for each employee and has the employee
sign in the “signature” column. Each foreman signs his MCR at
a blank designated “Salaried Supervisor.” The MCRs are routed
to the timekeeping and data entry departments for recordkeep-
ing purposes.
E. Inception of the Organizational Campaign
When the Union began handbilling at various of Respon-
dent’s gates on March 2, 1993, it also began distributing “Un-
ion Yes” clothing-stickers and badges. Later, it distributed
bumper stickers, baseball-style caps, and T-shirts. (The stickers
and the legends on the items that were distributed are referred
to herein as prounion insignia.) Union authorization cards were
also distributed to some employees who, in turn, distributed
them to other employees.
Respondent freely acknowledges that it does not wish to
have its employees represented by a labor organization. In fact,
one of the policies expressed early in the Avondale Employees’
Guide is:

28 See the “Reporting Absences and Tardiness” section of the Avon-
dale Employees’ Guide, as quoted above.
NON-UNION STATEMENT

Avondale is the only major non-union shipyard in the
United States. It is also one of the most productive ship-
yards in this country. Because the management has a good
relationship with its employees, both benefit. You are
treated fairly and the Company makes a fair profit. When
the Company makes a fair profit, you have a secure job
and receive better wages and benefits.
The management prefers to operate its facilities with-
out the interference of organized labor. We prefer to
communicate directly with our employees in all matters
affecting their jobs. We feel it is to the best advantage of
both the employees and the Company to continue to be
non-union.

In short, Respondent is the only major shipbuilding company in
the United States that does not recognize a labor organization
as the collective-bargaining representative of any of its em-
ployees, and it wishes to stay that way. There is, of course,
nothing illegal in maintaining this position; the issue before the
Board is what, in response to the organizational campaign,
Respondent did in an attempt to remain nonunion.
Production Vice President Simpson testified (vols. 55, 139)
that he was in charge of the Respondent’s efforts to oppose the
organizational campaign, and those efforts also began on March
2. On that date, Simpson convened all 4100 employees and
announced Respondent’s opposition to the organizational at-
tempt. Also within the first week of the campaign, according to
Simpson and other supervisors who testified, all supervisors
were convened to receive instructions by Respondent’s counsel
about how the campaign was to be conducted. Each foreman
was issued a “TIPS” card. The acronym was explained to the
foremen, as Simpson testified:

We have a little card that I had all of the supervisors
carry called the TIPS card. And it reminded them that you
cannot threaten, you cannot intimidate, you cannot use
surveillance, you can’t make any promises. In other words,
[the TIPS card told the supervisors that] we will hold the
campaign, but we will do it in accordance with the law.

A copy of the TIPS card was received in evidence. It is a two-
inch, by four-inch, laminated card with printing on both sides.
On one side the supervisors are given the acronym and told
that, “[i]n other words, threats, intimidation, promises and sur-
veillance are prohibited.” On the same side of the card supervi-
sors are told that they should tell all employees:

You and Avondale are 100% against a union.
Signing a union card is like signing a blank check. It
can obligate the employee to pay dues, fees, and even
fines.
You believe unions drive a wedge between employees
and supervisors.
Union work rules and restrictions can cripple effi-
ciency and productivity.

On the other side of the TIPS card is a table indicating where
and when solicitations and distributions can occur (in rows for
working time and nonworking time, and in columns for work
areas and nonwork areas).
In a second convocation of the supervisors that was con-
ducted by a company lawyer and Simpson, an 11-page handout
entitled “A Foreman’s Guide to a Union-free Policy for Avon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1086
dale” (the Foreman’s Guide) was distributed. In addition to the
title, the cover sheet states: “CONFIDENTIAL—For Supervi-
sors and Managers Only—1993.” The second sheet repeats the
“Non Union Statement” of the Avondale Employees’ Guide.
The following three pages contain 33 numbered paragraphs
under the heading “What Supervisors Can Do.” The first 30
paragraphs suggest lawful campaign statements that may be
made to employees. The last three of the numbered paragraphs
are:

(31) You may enforce company conduct and safety
rules during the Union organizing campaign regardless of
whether or not the employee favors or shows interest in
the Union. Wherever possible, follow your past practice in
the enforcement of all company rules.
(32) You may make job assignments, overtime work,
and shift changes so long as this action is done without re-
gard to the employees’ interest in or support for the Union.
(33) In short, you may say anything, do anything, so
long as your activities do not involve a promise, or threat,
and which do not discriminate against employees because
of their union sympathies. We must avoid interrogating
and spying on employees concerning union activities; we
must avoid interfering, restraining or coercing employees
in their federal right to participate and assist in union or-
ganizing activities.

Following this, the handout lists “TIPS” again, but this time
“Interrogation” is listed for the “I,” and the booklet states: “Do
not ask questions of employees about their union sentiments or
activities.” The following six pages list other lawful employer
campaign statements, in question-and-answer form, and it con-
cludes with the admonition to supervisors that discipline of
employees, even for valid reasons, can lead to unfair labor
practice charges and such charges can lead to a bargaining or-
der.
Simpson testified that, in addition to the two meetings at
which he and Respondent’s counsel distributed TIPS cards and
the foremen’s guides, he and counsel had other meetings with
the supervisors in March and April. At first, these sessions
included all foremen and general foremen, as well as superin-
tendents. Later, the meetings were only for superintendents.
These meetings were conducted weekly during March and
April, and those in attendance were given information to be
used by foremen as “themes-of-the-weeks” in future meetings
with their employees.29 At the ends of each of these March–
April meetings, counsel reminded the superintendents in atten-
dance of the TIPS cautions. Simpson testified that after general
foremen and foremen stopped meeting with him and counsel in
the March–April period, the themes-of-the-weeks were distrib-
uted to foremen through the superintendents. Simpson testified
that, throughout the remainder of the preelection period, as well
as distributions of the themes-of-the-weeks, Respondent relied
on the superintendents to remind the general foremen to remind
the foremen of the TIPS cautions.
There are approximately 350 line foremen (as opposed to
general foremen) at the plant; during the preelection period, the
line foremen conducted approximately 350 weekly campaign
meetings which were usually based on the themes-of-the-

29 Some of the information was on topics such as the Respondent’s
financial position, and all of the information was designed to convey
expressions of Respondent’s opposition to the organizational attempt.
weeks. Several of the foremen’s weekly meetings with the em-
ployees are mentioned in this decision. (Such meetings are
referred to as “Employer campaign meetings.”) Some of the
employer campaign meetings were conducted by two or more
foremen for their combined crews; sometimes, general foremen
and superintendents participated in, or just observed, the em-
ployer campaign meetings.
Simpson testified that in the employer campaign meetings,
foremen were to “give the employees a chance to comment.”
The foremen were to relay the employees’ comments to Simp-
son through the superintendents.30 Simpson testified that he
asked for this information because “I was interested in the em-
ployees’ concerns.” As it happened, many employees took
advantage of their “chance(s) to comment.” Many of the com-
ments expressed by employees in the employer campaign meet-
ings revealed prounion sentiments; many did not. The General
Counsel relies on testimony about some of these comments as
proof of Respondent’s knowledge of the prounion sympathies
of many of the alleged discriminatees. Respondent argues that
many of the employee comments at the employer campaign
meetings were ambiguous, at best. Respondent further argues
that some of the alleged discriminatees made antiunion state-
ments at the employer campaign meetings (and elsewhere).
Simpson acknowledged that during the preelection period the
foremen were encouraged to express their individual opinions
about the organizational attempt to the employees. The General
Counsel alleges that many of the foremen’s expressions of
opinion at the employer campaign meetings (and elsewhere)
constituted threats in violation of Section 8(a)(1), the TIPS
admonitions and the foremen’s guides notwithstanding. The
General Counsel further contends that, the TIPS meetings and
the foremen’s guides notwithstanding, in its response to the
organizational campaign Respondent’s supervisors committed
numerous violations of Section 8(a)(3).
As Respondent points out on brief, in my decision in Com-
cast Cablevision, 313 NLRB 220, 223 (1993), I commented
that I felt that such instructions as the TIPS instructions, when
given by lawyers, “have an ameliorative value and make viola-
tions less probable.” Although Respondent’s lawyers conducted
two TIPS training sessions for all supervisors, the bulk of the
coaching of first-line foremen came in the form of the themes-
of-the-week messages that had come from counsel and Simp-
son to superintendents, then to the general foremen, and then to
the foremen. That is, much of the coaching came to the imme-
diate supervisors of the employees second-hand, or third-hand.
(And it came from decided nonlawyers.) The possibilities for
misunderstandings in such a system are obvious. Moreover, as I
quote in the following narrative of the allegations, many of
Respondent’s supervisors showed on cross-examination (or
even on direct examination) that they did not understand the
TIPS instructions; indeed, one supervisor testified that he un-
derstood that the import of the TIPS training was that he should
not intimidate himself.31
Therefore, as I did in Comcast, I have considered the testi-
mony about the TIPS instructions, and the additional instruc-
tions of the foremen’s guide, but I find that such testimony is
not controlling.

30 The foremen were to transmit written reports about their meetings.
The General Counsel subpoenaed the reports, but only a few existed by
time of trial.
31 This was Foreman Joseph DeNicola (vol. 119).
AVONDALE INDUSTRIES 1087
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The 8(a)(1) Allegations
1. Charges that support the 8(a)(1) complaint allegations
The first 8(a)(1) complaint allegations to be decided are
found in paragraph 19(a)(b) of the second complaint. As de-
tailed below, the allegations in that paragraph are essentially
that in the spring of 1993, in speeches by its President and
Chief Executive Officer Albert Bossier, Respondent threatened
employees with plant closure and other adverse employment
actions because they had become or remained members of, or
had given assistance or support to, or had been active on behalf
of, the Union. Before consideration of the substance of para-
graph 19(a)(b), I shall deal with a procedural contention that is
raised by Respondent because disposition of that contention
affects the dispositions of many other 8(a)(1) allegations of the
four complaints before the Board.
Respondent moves to dismiss paragraph 19(a)(b) on the
ground that it is not supported by a charge under Section 10(b)
of the Act. Section 10(b) provides in pertinent part:

no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof upon
the person against whom such charge is made.

Respondent similarly moved to dismiss some 54 other 8(a)(1)
allegations that are contained in the four complaints; to wit:
first complaint, paragraph 14; second complaint, paragraphs 7–
9, 13, 17, 20–24, 28–33, 36, 38, 40, 42, 43, 46, 50, 51, 53–57,
60–63, 65–67, 71, 74, and 76–79; third complaint, paragraphs 7
and 8; and fourth complaint, paragraphs 8–11, 13–14, 16, and
18–19. Essentially, Respondent contends that none of these
complaint allegations is supported by a charge within Section
10(b) because none of them track timely, previously filed,
charges.32 Respondent’s objections to the litigation of the listed
8(a)(1) complaint allegations may be considered as a group,
and I shall do so at this point in order to avoid repeated inter-
ruptions of the narratives concerning the substance of the alle-
gations with repeated re-statements of the procedural law that
disposes of Respondent’s position.33
Redd-I, Inc., 290 NLRB 1115 (1988), identifies factors rele-
vant to a determination whether certain otherwise unsupported
allegations can be included in a complaint based on their close
relationship to a pending timely filed charge. Under this
“closely related” test, the Board will examine whether the com-
plaint allegations (1) involve the same legal theory as allega-
tions in the timely filed charges, (2) arise from the same factual
circumstances, and (3) entail the same or similar defenses by
the respondent involved.
The first charge that is before the Board was filed on behalf
of alleged discriminatee James (Danny) Cox in Case 15–CA–

32 For some of the listed complaint allegations, the Union did file
identical charges, but only after the complaints had issued. I agreed
with Respondent that these postcomplaint charges could not retroac-
tively support complaints that had previously been issued, and I re-
jected them as exhibits. Those postcomplaint charges will not be re-
ferred to again.
33 Respondent also objects to the litigation of many of the 8(a)(3)
complaint allegations as not being supported by unfair labor practice
charges; these objections will be considered as the 8(a)(3) cases are
decided.
12171–1 (the Cox charge). The Union filed the Cox charge on
June 7, 1993, alleging that Cox was discharged in violation of
Section 8(a)(3) and (1) of the Act. The gravamen of that charge
is that Cox was discharged for his support of the organizational
drive that was begun by the Union on March 2, 1993. The
threats that are alleged in paragraph 19(a)(b) are expressions of
animus against the activities of those employees, such as Cox,
who supported that organizational attempt. Such expressions of
animus, if found, would tend to prove the validity of the com-
plaint allegations made on behalf of Cox. Conversely, if Re-
spondent could show that such expressions of animus were not
true, it would tend to defeat the Cox allegation of the com-
plaint. Therefore, the allegations of paragraph 19(a)(b) arise
from the same factual circumstance as the Cox charge (the
organizational campaign that began on March 2), the same
legal theory is involved (that Respondent’s actions are the
products of animus toward that organizational attempt), and
Respondent’s defense is the same (that Respondent held no
such animus). Accordingly, I conclude that the allegations of
paragraph 19(a)(b) are closely related to, and supported by, the
Cox charge.
The Cox charge also supports all other 8(a)(1) allegations
that are found in the four complaints. All of the other 8(a)(1)
allegations (other threats, interrogations, impressions of surveil-
lance and the like) are also closely related to the Cox charge
because all of them are premised on the theory that they were
caused by Respondent’s animus against the organizational at-
tempt, they happened while that attempt was taking place, and
Respondent’s defenses are the same. Or, as stated in Fiber
Products, 314 NLRB 1169 (1994):

All allegations relate to the same alleged animus and pattern
of reprisals against the [alleged discriminatees] for their per-
ceived roles in encouraging concerted activities, ultimately in-
cluding union organizing activit[ies] among Respondent’s
[employees].

See also Recycle America, 308 NLRB 50 (1992). Also, in Nick-
les Bakery of Indiana, 296 NLRB 927 (1989), the Board indi-
cated, at footnote 7, that it follows courts of appeals decisions
that find sufficient relationships between charges and com-
plaints in circumstances involving “acts that are part of the
same course of conduct, such as a single campaign against a
union” and acts that are “part of an overall plan to resist organi-
zation.” The Board in Nickles Bakery cited NLRB v. Central
Power & Light Co., 425 F.2d 1318, 1321 (5th Cir. 1970), and
NLRB v. Braswell Motor Freight Lines, 486 F.2d 743, 746 (7th
Cir. 1973). Finally, see also Texas World Service Co.v. NLRB,
928 F.2d 1426, 1437 (5th Cir. 1991), which holds the relation-
ship between complaint allegations and a charge “need be close
enough only to negate the possibility that the Board is proceed-
ing on its own initiative rather than pursuant to a charge.”
Therefore, complaint allegations of violative conduct that
occurred within the 6-month period before the filing of the Cox
charge are supported by that charge under the literal terms of
Section 10(b) of the Act. Complaint allegations of violative
conduct that occurred after the filing of the Cox charge are also
supported by that charge under Section 10(b). In NLRB v. Fant
Milling Co., 360 U.S. 301, 306–307 (1959), the Court clearly
stated:

Whatever restrictions the requirements of a charge may be
thought to place upon subsequent proceedings by the Board,
we can find no warrant in the language or purposes of the Act
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1088
for saying that it precludes the Board from dealing adequately
with unfair labor practices which are related to those alleged
in the charge and which grow out of them while the proceed-
ing is pending before the Board.

Under the standards of Redd-I and the other cases cited supra,
the allegations that Respondent continued to conduct unlawful
acts in interference, restraint and coercion to defeat the Union’s
organizational campaign are related to the charge that Cox was
discharged for participating in that campaign.
That is, all of the 8(a)(1) allegations in the four complaints
are based on conduct that allegedly occurred within 6 months
before the filing of the Cox charge (or allegedly occurred after
the filing of the Cox charge), they concern Respondent’s al-
leged opposition to the organizational attempt that began on
March 1, and, if prima facie cases of the 8(a)(1) violations are
made out by the General Counsel, Respondent is required to
prove the nonexistence of the animus underlying those alleged
actions. I therefore find and conclude that all of the above-
indicated 8(a)(1) complaint allegations before the Board are
supported by the Cox charge.
Additionally, some of the 8(a)(1) allegations of the com-
plaints are supported by more than one charge. As well as being
supported by Cox’s charge, 8(a)(1) complaint allegations that
the alleged discriminatees were threatened because of, or inter-
rogated about, their protected activities are supported by the
indisputably timely filed charges that Respondent discriminated
against those employees in violation of Section 8(a)(3). For
example, the indisputably timely filed charge that alleges that
employee Barbara Marshall was discharged in violation of
Section 8(a)(3) supports the 8(a)(1) allegation of paragraph 20
of the second complaint that Marshall was threatened with dis-
charge because of her prounion sympathies. This is because the
allegation that Marshall was threatened with unlawful discharge
is obviously related closely to the timely filed charge that Mar-
shall was, in fact, discharged in violation of Section 8(a)(3);
therefore, the complaint’s allegation of the threat is supported
by the charge that Marshall was unlawfully discharged, even
though there is no charge which, in heac verba, alleges that
threat. Equally, the timely filed charge that alleges that em-
ployee Mark Cancienne was unlawfully transferred supports the
8(a)(1) allegation of paragraph 60 of the second complaint that
Cancienne was told that his transfer was caused by his support
of the Union. The other complaint paragraphs that are sup-
ported by indisputably timely filed charges of unlawful dis-
crimination, as well as Cox’s charge, are listed as the narrative
progresses. (The dates and numbers of the timely filed 8(a)(3)
charges that support the 8(a)(1) complaint allegations are en-
tered above in the listings of all of the charges that support the
allegations of the four complaints. In the narratives of the dis-
crimination cases, those dates and numbers are not repeated;
the relevant charge numbers and dates may be easily found by
reference to the names of the alleged discriminatees in the
above listings of all of the charges.)
2. Alleged threats and other coercive remarks in speeches
by Bossier
As the second complaint originally issued, paragraph 19 al-
leged:

About late April or early May 1993, on a date not
more precisely known to the General Counsel, Respon-
dent, by Al Bossier, at its facility, threatened its employees
with plant closure if they selected the Union as their bar-
gaining representative.

The General Counsel called three witnesses in support of the
original paragraph 19. Those three witnesses testified that dur-
ing one of the Bossier speeches that they attended, Bossier
made statements to the effect that the plant would be closed if
the Union were selected as the employees’ collective-
bargaining representative. These three witnesses placed the
Bossier speeches at some point between early March and May
25.
Respondent contends that Bossier spoke to the employees
only on five dates: May 24, June 1, 15, 21, and 23. In present-
ing its case, Respondent placed into evidence a copy of a tran-
scription of a tape recording of Bossier’s June 1 speech.34
Thereupon, the General Counsel moved to amend paragraph 19
so that the above-quoted original complaint language is now
subparagraph (a) of paragraph 19, and a second subparagraph is
now:

(b) About June 1, 1993, Respondent by Al Bossier at its facil-
ity:
(i) Disparaged, ridiculed and/or swore at its employees
because they aided or supported the Union by, inter alia,
referring to employees supporting the Union as whiners,
malcontents and slackers;
(ii) Characterized the activities by its employees in
support of the Union as disloyalty to Respondent;
(iii) Threatened its employees with plant closure
and/or job loss if they selected the Union as their bargain-
ing representative, and thereby informed its employees it
would be futile for them to support the Union;
(iv) Promised to consider [improving] the employees’
wage rates and the employees’ wage [scales if the employ-
ees] rejected the Union as their bargaining representative.

I shall consider the April-May allegations and the June 1
allegations separately.
a. Threat of plant closure by Bossier in the April or
May 1993 speeches
The first witness that the General Counsel called in support
of the allegation that Bossier threatened the employees with
plant closure in April or May was alleged discriminatee Phillip
Perera. Perera (vol. 10) testified that he attended three plant-
wide meetings conducted by Bossier. At one such meeting,
which he placed “in late March or early April, ‘93”:

Mr. Bossier stated that if the Union were to get in,
Avondale would not be able to stay competitive and get
any more contracts, and that they would probably have to
close down, and he referred to other unionized shipyards
that already closed down, such as NASCO in California.

The second witness that the General Counsel called in sup-
port of the April-May allegation was former employee George
Pecot. Pecot (vol. 56) testified that he attended Bossier meet-
ings that were conducted “during the month of April up until
about May 25.” Pecot was asked by the General Counsel, and
he testified:

34 The recording was surreptitiously made by an employee. Respon-
dent placed the transcription in evidence in an effort to discredit the
three witnesses whom the General Counsel called in support of par.
19(a). I have discredited those witnesses on other grounds, infra.
AVONDALE INDUSTRIES 1089
Q. [By Mr. Morgan] [for the General Counsel]: [D]id
you ever hear any member of supervision speak about the
Union?
A. Yes, sir. Al Bossier, the president of the Company.
Q. And where was this?
A. This was at a speech he was giving at the shot
house.
Q. Who else was present at these speeches?
A. Everybody in the yard. It was a command perform-
ance.
Q. Do you recall anything that Mr. Bossier said at any
of these speeches about the future of Avondale? . . .
THE WITNESS: All right. What he had told us during
one of his speeches is that, if the Union was voted in,
Avondale would not be able to compete with other ship-
yards, would be forced to shut down and he would lock
the gates.
MR. MORGAN: Okay. No further questions.

While Pecot was on cross-examination, counsel for the General
Counsel conceded that the phrase “lock the gates” was not in
Pecot’s pretrial affidavit.
The third witness that the General Counsel called in support
of the allegation that Bossier threatened the employees with
plant closure in April or May was current employee Clifford
Dumas.35 Dumas (vol. 58) testified that he attended a meeting
conducted by Bossier “in March or April, ‘93.” On direct ex-
amination Dumas was asked, and he testified:

Q. Did you ever hear Mr. Bossier say anything con-
cerning the future of Avondale?
A. Well, he spoke about if the Union would come into
the shipyard, that we would be like a shipyard down in
Mississippi—Ingalls, I think it was—that we would lose
contracts and they might have to lay off some people or
close the yard.

On cross-examination Dumas testified that he thought it was
more likely that the speech at which he heard this remark was
in March.
Bossier is Respondent’s chief executive; a plant-closure
threat by him would be among the strongest possible types of
evidence of antiunion animus.36 The credibility resolution on
this issue is, therefore, one of the most important in this case. I
discredit the General Counsel’s three witnesses and I credit
three of the witnesses who were called by Respondent on the
point.

35 In this decision, I used the term “current employee” to describe
witnesses who were employed by Respondent at the time that they
testified. Such employees are readily subject to recriminations (subtle
or otherwise) for false testimony against their employers, the sanctions
of Sec. 8(a)(4) notwithstanding. Therefore, while there is no presump-
tion of credibly that is afforded to current employees, their employment
status is a significant factor in assessing credibility because their testi-
mony “is likely to be particularly reliable because these witnesses are
testifying adversely to their pecuniary interests.” Flexsteel Industries,
316 NLRB 745 (1995), citing Gold Standard Enterprises, 234 NLRB
618, at 619 (1978); and Georgia Rug Mill, 131 NLRB 1304 fn. 2
(1961). However, on the basis of other factors that I have considered, I
discredit Dumas’ testimony. Elsewhere in this decision, I discredit
many other current employees, despite their employment status, be-
cause of their demeanor or other factors that I mention infra.
36 See Gissel Packing Co., 395 U.S. 575 (1969).
As Pecot stated, employee attendance at the Bossier meet-
ings was compulsory. The General Counsel called 169 wit-
nesses in the presentation of his case-in-chief. Of those wit-
nesses, 44 were employee-applicants (who had been denied
employment), or they were supervisors or other nonemployees.
Alleged discriminatee Donald Varnado was discharged on
April 7; therefore, he would not have heard any of the
speeches.37 And the General Counsel’s witness alleged dis-
criminatee Patrick Noah was discharged on June 10; therefore,
Noah would not have heard all of Bossier’s speeches. There-
fore, in addition to Perera, Pecot and Dumas, there were 120
witnesses who were called to testify by the General Counsel, all
of whom were employed continuously between March 2 and
the Board election of June 25. Because attendance was manda-
tory, all 120 of those witnesses would presumably have been
present at all of the Bossier meetings. Of those 120 witnesses
who could have been, but were not, asked about the Bossier
meetings, at least 50 were no longer employed by Respondent
at time of trial and had absolutely nothing to fear by giving
(more) testimony that was adverse to Respondent. That is, of
the 123 witnesses who presumably heard the speeches (50 of
whom certainly should have been asked about the Bossier
meetings), the General Counsel called only 3 witnesses in sup-
port of paragraph 19(a) of the second complaint: Perera, Pecot,
and Dumas. On many other issues the General Counsel offered
witnesses to the point of being cumulative. I draw an adverse
inference against the General Counsel for his failure to call, or
question, more witnesses in support of paragraph 19(a).
Moreover, instead of simply being asked, “What, if anything,
do you recall that Bossier said?,” Pecot and Dumas were di-
rectly led to the topic of the “future of Avondale.” This leading
was improper because the General Counsel did not first attempt
to exhaust the witnesses’ recollections about Bossier’s
speeches.38 Additionally, any lock-the-gates statement by Boss-
ier in his speeches would have produced a mind’s image not
likely to have been forgotten by any employee who heard it.
Yet, no employee, other than Pecot, testified that such a state-
ment was made by Bossier. Pecot, himself, also omitted the
statement from his pretrial affidavit; I was left with a most un-
favorable impression when that omission was left unexplained
during Pecot’s redirect examination. Again, a lock-the-gates
statement would have been so dramatic, and would have made
such an impression, that Pecot would not likely have left it out
of his affidavit if it had been made by Bossier. And, if it had
occurred, the lock-the-gates statement by Bossier would have
been mentioned during the testimony by other of the General
Counsel’s witnesses, especially Perera and Dumas. Finally,
Perera impressed me unfavorably as he testified in his case that
a doctor misdated an excuse that he submitted for an absence
three times, and that factor has a negative impact on his credi-
bility on this point.
In summary, I do not believe the testimonies of Pecot, Du-
mas, or Perera that Bossier told the employees in any of his
speeches (whether given in the March–April period or later)
that the plant would close if the Union were selected as the

37 When Varnado was on cross-examination, he acknowledged his
pretrial affidavit that stated that he attended a meeting held by Bossier;
it is apparent to me that Varnado had confused Bossier and Simpson
(who gave a speech on March 2).
38 I repeatedly warned all counsel against such leading, but it still
sometimes occurred. Where the leading turned out to be significant, I
have used it as a factor in determining credibility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1090
employees’ collective-bargaining representative. Conversely, I
did find credible the testimony of Simpson, Respondent’s vice
president for production, that Bossier gave speeches to the en-
tire yard only on May 24 and June 1, 15, and 23. I further found
credible the testimonies of Simpson, former Shipfitting De-
partment Supervisor Anthony Bishop (vol. 84), and carpenter
Andrew Barker (vol. 150) that Bossier made no such threats in
any of his speeches. Accordingly, I shall recommend dismissal
of paragraph 19(a) of the second complaint.
b. Threats and promises by Bossier in a June 1, 1993 speech
As noted, for proof of the allegations of paragraph 19(b) of
the second complaint, the General Counsel relies upon a tran-
scription of a tape recording of Bossier’s June 1 speech (which
transcription Respondent placed in evidence). The transcription
is eight pages long, double spaced. After the first line, there are
no paragraph breaks. For the part that I quote, I insert paragraph
breaks and I insert certain words, and certain grammatical
marks, in brackets. Notations of “(sp?)” and underlines are in
the original of the transcription.39 In the speech, Bossier men-
tions: Philip Miller, the chief organizer for the Union; NASCO,
another American shipbuilder; and Texaco, a customer of
NASCO. The transcription of Bossier’s speech begins:

[A]n incident recently happened that could have affected our
ability to get future [N]avy work [,] possibly even future
commercial work. I need to tell you about that incident. But
before I do that I want to bring you up to date on the current
state of the ship building industry in the United States and I
would also like to tell you how I see it[,] the way Avondale
fits in that industry[,] not only now but the next five years.

The next four pages of the transcription contain Bossier’s de-
scription of industry competition and the necessity for good
production. Bossier thereafter continued:

Now you have to believe that a union at Avondale will
increase our cost to do work. I certainly believe that. Go
look at Nasco (sp?) on the west coast, our prime competi-
tor. That it can even cost you [a shipyard] actually getting
the [contract for a] job due to the action that a union will
take against the Company if it doesn’t get what it wants.

Bossier then read portions of a letter from a union representa-
tive of employees at NASCO to Texaco; then Bossier stated
that, after the representative of the union at NASCO sent the
letter to Texaco, NASCO was thereafter prohibited from bid-
ding by Texaco; Bossier continued:

Now I believe the Union is trying to do the same thing
here at Avondale that they were trying to do at NASCO
and I’m gonna tell you why. On May 3 of this year Phil
Miller, the Union boss, the one that is the head of this
campaign, decided to belly ache to Captain Donohue. He
is our chief Navy customer. He is in charge of all the work
that is out here. I want to quote you from the letter that the
Union boss wrote to Captain Donohue at the Naval Station
about us. Here is what he said[:]

Bossier then read from a copy of a letter from Miller to the
Navy. In the letter Miller complained that Avondale had
charged the Navy for time that the employees had spent attend-
ing employer campaign meetings. Bossier continued:

39 I do not use “[sic]” in this quotation of the transcription; there
would be so many that it would be unreadable.

[U]nquote, signed Philip Miller, Organizer, New Orleans
Metal Trades Council.
What do you think about a low down lie like that[?]
He’s got more man hours charged to any Navy contract.
All of the time its charged to account number 828–19940
as it should have been. . . . This guy Miller[,] the Union
boss[,] could have cost us the LSD C 52 job what we need
badly. He could have cost us the ice breaker job. He could
have cost us the [S]ealift conversions. He could have dis-
qualified Avondale for bidding on the 12 new [S]ealift
ships that are vital to our long term future.
Now let me tell y[‘]all something[.] [T]hose of you
who signed union authorization cards I want to ask you [:]
[I]s that the kind of representation you want[?] Do you
want the Union boss Miller, that you signed your authori-
zation card for, to represent you in trying to get Avondale
in trouble with its best, largest and only customer right
now[,] the U.S. Navy[,] and have possibly caused us to be
disbarred and disqualified from getting any future work
just [like] they [the Union at NASCO] tried to do at
NASCO with the Texaco job[?] God I can’t, I just can’t
believe this. . . .
You know Miller’s efforts to bash Avondale didn’t
work this time. But we certainly don’t need any more of
this. Let me tell you[,] look what the Union’s just done in
this short period of time. They have slandered Avondale
with its biggest customer. I think they are trying to put us
out of business. I still wonder why they came from Ingles
[another Gulf Coast shipbuilder] over here. As we told you
earlier in this campaign. You know[,] those of [you] who
are for Avondale already understand how serious this is.
Those of you who are undecided need to think[,] and
really think[,] about what this union is doing to Avondale.
I tell you what this shows me. It shows me they want their
dues money and if they can’t get it they don’t give a damn
what happens to Avondale.
Now those of you who are for this union I can only
conclude that you hate this company so much you don’t
give a damn if the Union takes actions to destroy us. And
this letter show[s] me this is what they are trying to do. If
you really want to destroy Avondale you oughta go sup-
port and vote for the damn union. You know[,] those of
you who don’t want to destroy Avondale[,] you better
make sure these whiners, malcontents and slackers don’t
even come close to winning this election.
You know[,] to get future [contracts] we are going to
have show our customers, both the Navy and commercial
ones[,] that we are reliable shipbuilders so that they will
want a contract with us in the future. Don’t let the Union
put a cloud over Avondale’s future. Secure your future by
rejecting this union and its bosses. Now lets all go back to
work and help secure Avondale’s future. Thank you very
much.

The transcription ends at this point.
Bossier’s June 1, 1993 Speech—Conclusions
In his June 1 speech, Bossier said that a successful organiza-
tional attempt “will increase our cost to do work.” Bossier fur-

40 Actually, this should have been “82A0199,” a job account number
that was designated for the employees’ time that was not billed to the
Navy.
AVONDALE INDUSTRIES 1091
ther accused the Union of trying to harm Respondent, just as
another union had tried to harm another employer, NASCO.
And Bossier said that Respondent may be harmed by what
Miller had done. Nowhere, however, did Bossier state that Re-
spondent was, or would be, harmed by what Miller had done. In
fact, Bossier told the employees that what Miller had done,
“didn’t work this time.” Bossier assuredly did not say that Re-
spondent would close its plant because of what the Union,
through Miller, had done. Nor did Bossier say that what some
employees were doing (organizing, and potentially increasing
costs) would cause the plant to close. Nor did Bossier in haec
verba characterize the prounion employees’ conduct as “disloy-
alty.” And nowhere in the speech did Bossier promise changes
in wages or wage rates if the employees reject the Union. I
shall, therefore, recommend dismissal of the last three subpara-
graphs of paragraph 19(b) of the second complaint.
I find, moreover that the allegations of the first subparagraph
of 19(b) are not proved by the text of the June 1 speech. It is
true that Bossier called prounion employees “whiners, malcon-
tents and slackers,” but, nevertheless this appears to have been
only simple name calling. There was no threat in these words or
any other part of the speech. I shall therefore recommend that
all of paragraph 19(b) be dismissed. (As discussed below in the
Section 8(a)(3) cases, however, I do find Bossier’s June 1
speech contained evidence of animus toward the protected ac-
tivities of the alleged discriminatees and other employees.)
3. Gerdes’ threat of more strict enforcement of work—rules
Gerald (Jerry) Gerdes is classified as a general foreman in
the electrical department, but actually he functions as an assis-
tant superintendent to Robert Terry who is the superintendent
of the department. Gerdes has over 350 individuals reporting to
him, including several general foremen and many more line
foremen. Gerdes is the alter ego of Terry when Terry is absent
for any reason. His office is adjacent to Terry’s, and Terry has
Gerdes present for important conferences that Terry conducts
with others. Terry (vol. 93) admitted that he considered Gerdes
his “senior general foreman.”
Alleged discriminatee Chad Durocher (vol. 9) worked in the
electrical department at the time of the June 25, 1993 Board
election. Durocher testified that on June 28, the first workday
after the election, he was standing on one side of an open
doorway on a ship when he overheard parts of a conversation
between Gerdes, General Foreman Mark Poche, and Foreman
Jerry Kaywood. Durocher testified:

Q. What was Gerdes saying?
A. Gerdes said, “Yes, we are going to put a stop to all
this good time they have been having; we are going to
crack down—yes. We are going to put a stop to all this
good time they have been having; we are going to crack
down on them; and we are going to force time limits on
them going to the bathroom; and we are going to post
watches on the workers to make sure that they don’t have
a chance to have a break.”
And I saw somebody was coming towards the door,
and I left.
Q. Do you recall anything else that was said?
A. No. I left.
Q. Do you recall anything being said by Gerdes about
the Union?
A. He said he had an idea who the union supporters
were, that they were going to crack down on the good
times they had been having.

Based on this testimony by Durocher, paragraph 58 of the sec-
ond complaint alleges that Gerdes unlawfully threatened Re-
spondent’s employees with more strict enforcement of work
rules.
When called by Respondent, Gerdes (vol. 122) was asked
and he testified:

Q. [By Mr. Hymowitz]: I want to recall your attention
to June 28, 1993, which is the Monday following the elec-
tion. Okay?
A. Yes, sir.
Q. Did you have any kind of meeting in—with any of
your foremen on that day, specifically Mark Poche, Jerry
Kaywood, and several other foremen on board one of the
ships in an electrical shop on the ship, in which you told
those individuals—
JUDGE EVANS: Wait a minute.
MR. HYMOWITZ: Yes.
JUDGE EVANS: Did you have such a meeting?
THE WITNESS: Yes, sir, I did. . . .
Q. [By Mr. Hymowitz]: Did you tell those individuals,
We are going to have to—we are going to put a stop to all
this good time they have been having. We are going to
crack down. We are going to put a—we are going to force
time on them going to the bathroom. We are going to post
watches on workers to make sure they don’t have a chance
to have a break, and that you had an idea of who the union
supporters were, and you were going to crack down on the
good times they were having. Did you ever say anything
like that?
A. No, sir. . . .
Q. Okay. What was the subject of discussion of that
meeting?
A. There were several. . . .
Q. [By Mr. Hymowitz]: Well, let’s hear what the sev-
eral were.
A. First of all, we had lost the election. Well, we didn’t
lose it, but we didn’t win it, but it was business as usual.
. . . And then we did go into other issues, such as com-
partment completion, testing, cable-pulling, which we nor-
mally do.
Q. Was anything discussed on that occasion concern-
ing employees being in the bathroom between 3:20 and
3:30 p.m.?
A. No, sir.
Q. Was anything discussed on that occasion concern-
ing putting time limits on employees in the bathroom?
A. No.

Poche testified for Respondent (vol. 77), but he was not asked
about any discussions that he had with Gerdes during the week
in question; specifically he was not asked if he discussed disci-
plinary rules with Gerdes on the first workday following the
Board election. Respondent did not call Kaywood to testify.
I had repeatedly warned all counsel against leading where
matters were important and likely to be disputed, and where
they were not just preliminary. For example, on day 50 of trial,
well before Gerdes testified, I ruled on an objection by Respon-
dent:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1092
Q. [By counsel for the General Counsel] All right. To
what extent, if any, did either Mr. Pertuit or Mr. Foret, Sr.
explain to you that answering the question was voluntary?
A. They didn’t.
MR. HYMOWITZ: Objection, Your Honor. That is a
leading question.
JUDGE EVANS: Yes, it is. And we are getting now to
matters that [are] going to apply to many other allegations.
Let’s ask the witness in completely non-leading form first,
and get—exhaust his [recollection]. All right.
MR. HYMOWITZ: Move to strike that testimony, that
question and the response, Your Honor.

I granted Respondent’s motion to strike, but, of course the
damage had been done.
In making the instant credibility resolution, it is to be noted
that there are only two witnesses who testified on this most
important allegation, Durocher and Gerdes. It is to be noted that
the General Counsel first asked Durocher what was said; after
exhausting his recollection, the General Counsel then led Duro-
cher only to a general topic, mention of the Union. Conversely,
despite repeated warnings with other witnesses, despite the fact
that I stopped the testimony in an obvious attempt to get Re-
spondent’s counsel not to lead the testimony beyond the fact
that Gerdes attended such a meeting, and despite the fact that
Gerdes was claiming at least some memory of what had been
said, Respondent led Gerdes directly to the gravamen of the
allegation to elicit a denial. Only after that leading did counsel
ask Gerdes what had been said during the conversation that
Durocher had overheard. This factor of the leading of Gerdes,
coupled with the failure of Respondent to ask Poche about the
incident and Respondent’s failure to call Kaywood, is decidedly
a factor in my discrediting Gerdes. (Also, Gerdes was most
unconvincing in his “business-as-usual” testimony.) Moreover,
I found Durocher credible in his testimony. Although Durocher
required being led to the general topic of “the Union,” he was
not led to the “idea-who-the-union-supporters-were” testimony.
Also, after being led to the general topic of “the Union,” Duro-
cher’s response was immediate, and he sounded convincing.
Finally, although Durocher is an alleged discriminatee, his
testimony that Gerdes had threatened more strict standards of
rules-enforcement (including, specifically restroom time rules’
enforcement) would not tend to help his case. Durocher was
discharged for allegedly threatening a supervisor; he was not
discharged for violation of the comparatively minor conduct
rules to which Gerdes referred.
I find that Gerdes spoke to others in circumstances where an
employee could hear, and Gerdes said that Respondent was
going to retaliate against employees because of Respondent’s
nonvictory (if not a loss) in the June 25 Board election. Gerdes
specifically threatened retaliation against those whom Respon-
dent knew or suspected of being “union supporters.” (Terry
admitted (vol. 42) that, during the last weeks before the Board
election, he maintained a list of “prounion supporters.”) The
form of retaliation that Gerdes announced was the application
of more strict standards of rules enforcement.
I therefore conclude that, in violation of Section 8(a)(1), Re-
spondent, by Gerdes, on June 28, 1993, threatened its employ-
ees with more strict enforcement of work rules because they
had aided or supported the Union or because Respondent sus-
pected them of having aided or supported the Union.
4. Threats by DeNicola
a. DeNicola’s threat of plant closure
The second complaint, at paragraph 43, alleges that on two
occasions during the week of June 14, 1993, Respondent, by
Sheet Metal Department Foreman Joe DeNicola, threatened
employees with plant closure in violation of Section 8(a)(1).
The General Counsel called two witnesses in support of this
allegation, alleged discriminatee Peter Legaux and current em-
ployee Junius Duplantis. Legaux testified to one such occasion
during the week of June 14, when Duplantis was not present;
that testimony is considered in the discussion of Legaux’s dis-
charge, infra. Duplantis testified to another such occasion dur-
ing the week of June 14, when Legaux was not present. I ad-
dress that testimony by Duplantis in this section.
According to Duplantis (vol. 29), during the 2 weeks before
the Board election, he and Robert St. Pe, a helper,41 were work-
ing when they were approached by DeNicola, and:

Joe DeNicola had told us that if the Union got in Al
Bossier was going to close the yard down, put a lock on
the gate, and shut it down, or just let the work run out at
the yard and let the yard close up.
Duplantis testified that he did not respond to DeNicola. St.
Pe was not called by either side.
On direct examination, DeNicola (vol. 119) was asked about
the TIPS instructions that he had received; then DeNicola was
asked about Duplantis and he testified:

Q. Now, Mr. DeNicola, I am going to ask you some
questions and I need you to answer them for me. Did you
ever have a conversation with Mr. Duplantis in his work
area or anywhere in which you told him that, if the Union
gets in—or got in, Al Bossier was going to close the yard
down, put a lock on the gate, and shut it down, or just let
the work run out at the yard and let the yard close up?
A. No, never have.
Q. Did you ever say anything like that to Mr. Duplan-
tis?
A. Never have.
Q. Is there any reason why you wouldn’t have used a
statement like that?
MR. LURYE: Objection.
JUDGE EVANS: Overruled.42
Q. [By Mr. Hymowitz]: Go ahead.
A. Yes. It doesn’t make any sense. How can Joe DeNi-
cola say that Al Bossier is going to close the yard down?
And . . . another thing, too, I would be intimidating myself
or whatever. No, I wouldn’t say nothing like that. I didn’t
say that. I did not say that.

Duplantis is a current employee who was testifying against
the interests of his employer. As noted above, witnesses in that
position who testify with nothing apparent to gain have much to

41 Vol. 29 of the transcript, where it states that the helper’s name is
“St. Pete,” is corrected.
42 During the hearing, I permitted questions on direct examination of
why the witnesses did, or did not do, certain things. Over consistent
objections by the Union, I further allowed Respondent’s witnesses to
testify about why they would have said, or would not have said, certain
things.
AVONDALE INDUSTRIES 1093
lose, the existence of Section 8(a)(4) notwithstanding.43 In
Flexsteel, supra, 316 NLRB 745, the Board held that, although
there is no presumption of credibility that is to be afforded to
the testimony of current employees, such status is a factor that
the trier of fact may weigh in assessing credibility. I give con-
siderable weight to the factor, although I have discredited many
current employees in this decision on the basis of other factors
that I indicate as the narrative progresses. I do credit Duplantis
who had a more credible demeanor than DeNicola, as well as
being a current employee.
It does not matter that DeNicola was a first-level supervisor
and felt that he could not speak for Bossier. In the case of
NLRB v. Champion Laboratories, 99 F.3d 223 (7th Cir. 1996),
a supervisor named Tate was alleged to have made threats that
the employer would close if an organizational attempt was suc-
cessful. The court held:

Champion also contests the NLRB’s conclusion that
supervisor Tate violated the NLRA when she commented,
“I hope you guys are ready to pack up and move to Mex-
ico.” According to Champion, the NLRB’s conclusion that
Tate’s remark constituted a threat of plant closure was un-
reasonable because Tate lacked decision-making power,
and none of the workers could reasonably believe either
that she could carry out the threat, or that it was made on
behalf of the Company. Moreover, Champion argues,
there is no indication that Tate’s comments intimidated or
coerced anyone.
Our case law makes clear that Champion cannot suc-
ceed on these arguments, which confuse the standards ap-
plicable to threats with those applicable to coercive inter-
rogation[s]. Guardian Industries [Corp. v. NLRB], 49 F.3d
[317] at 322. Unlike an interrogation, which is coercive
only if a reasonable employee would perceive it as such, a
threat of plant closure is per se a violation of Section
8(a)(1). NLRB v. Electro-Voice, Inc., 83 F.3d 1559, 1570
(7th Cir. 1991). The rationale behind this difference in
treatment is that any threat of plant closure “reasonably
tend[s] to coerce employees in the exercise of their rights.”
Northern Wire Corp. v. NLRB, 887 F.2d 1313, 1317 (7th
Cir. 1989); Electro-Voice, 83 F.3d at 1570.

Like DeNicola, Tate was at the lowest level of the Employer’s
supervisory structure. Nevertheless, Champion makes clear that
a threat of plant closure is a per se violation of the Act.
I conclude that Respondent, in violation of Section 8(a)(1),
by DeNicola, about June 14, 1993, threatened its employees
with plant closure if they selected the Union as their collective-
bargaining representative.
b. DeNicola’s threats of more strict enforcement of work rules
Duplantis further testified that on June 28, the first workday
after the June 25 Board election, DeNicola addressed his crew.
According to Duplantis:

Joe had told us after the first whistle had blown to be
careful, don’t get caught walking around too much, pick-
ing up [stopping work] before the whistle. Don’t go to the
bathroom a lot because there would be supervisors walk-
ing around in the area to take down badge numbers off of

43 Arguments to the contrary under estimate the subtleties of the
workplace, and they over estimate the effectiveness of the administra-
tion of Sec. 8(a)(4).
your hardhats and keep track of how many times you went
to the restroom. They are looking to get rid of the dead
heads.

Duplantis further testified that he had not previously been told
that there would be a limit on the number of times that employ-
ees could use the restrooms, and employees had gone whenever
they needed to. Alleged discriminatee Legaux (vols. 7, 8) also
testified about DeNicola’s June 28 meeting with the crew. Ac-
cording to Legaux:

I remember right after the whistle blew, he [DeNicola]
told us to hold on, he wanted to have a little meeting with
us, and he said that, “You are going to have a lot of rumors
around this yard and we have a lot of people getting fired,
a lot of people get written up, because Avondale is taking
charge.”
And he said, “People going to the bathroom too many
times and people hanging around, walking around, people
picking up early, and people hanging around the bath-
rooms [are] going to start getting fired and start getting
written up.”

Based on this testimony by Duplantis and Legaux, paragraph
55 of the second complaint alleges that DeNicola unlawfully
threatened Respondent’s employees with more strict enforce-
ment of work rules. DeNicola denied the testimony, but I found
Duplantis and Legaux more credible, and I do credit their tes-
timony.
Like Gerdes who, on the same day, made essentially the
same remark that was overheard by Durocher, DeNicola did not
mention the results of the immediately preceding Board elec-
tion or the prounion sympathies that so many employees (if not
an unquestioned majority) had expressed in that election. Like
the timing of Gerdes’ remarks, the timing of DeNicola’s re-
marks made the objects of the threat clear, as any reasonable
employee would understand.
I therefore conclude that, in violation of Section 8(a)(1), Re-
spondent, by DeNicola, on June 28, 1993, threatened its em-
ployees with more strict enforcement of work rules because
they had aided or supported the Union or because Respondent
suspected them of having aided or supported the Union.
c. DeNicola’s threat against wearing union insignia
Duplantis further testified that about a month after the June
25 Board election, when he and mechanic Edward Eugene were
working together, DeNicola approached. According to Duplan-
tis:

Joe had mentioned that the guys walking around with
stickers and shirts on better hope that the Union gets in be-
cause if it don’t, they are gone.

At the time, some employees were wearing prounion T-shirts or
prounion stickers on their clothing. Based on this testimony by
Duplantis, paragraph 65 of the second complaint alleges that
DeNicola threatened Respondent’s employees with discipline
for wearing union insignia.
DeNicola denied this testimony by Duplantis; however,
again, I found Duplantis to be credible. To be “gone,” of
course, means discharged, and that is what DeNicola told
Duplantis the wearers of prounion insignia would be. I there-
fore conclude that Respondent, in violation of Section 8(a)(1),
by DeNicola, in late July 1993, threatened its employees with
discharge because they had worn prounion insignia.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1094
5. Torres’ threat against serving as election observer
for the Union
A third allegedly violative incident that occurred on June 28,
1993 (again, the first workday after the Board election), was
raised in Respondent’s case. Michael Torres is a general fore-
man over the inside sheet metal shop at the plant; that shop has
about 135–150 employees. Current employee Michael James
Boudreaux44 was an observer for the Union at the June 25
Board election. Early in the hearing, the General Counsel called
Boudreaux to testify, inter alia, about certain remarks made by
Torres. The General Counsel offered Boudreaux’s testimony
only as evidence of animus, not as evidence of a violative
threat. In its case, Respondent called Torres, inter alia, to deny
the remarks attributed to him by Boudreaux. On direct exami-
nation Torres (vol. 118) further testified:

I walked up to him [Boudreaux] one morning—I think
it was the day after the election—and we greeted each
other and I said, “You took part in the poll watching?”
And he said, “Yes, I felt like I had to.”

Torres testified that he then told Boudreaux that it was too
noisy to talk in the shop, and he asked Boudreaux to come into
his office. When they got there, further according to Torres:

I said, “I didn’t have no idea you was going to do that
[be an observer for the Union].”
And he said, “Well, I made up my mind that morning
that I was going to be a poll watcher and I decided to go
the Union’s way.”
And I said, “I didn’t have any idea, Mike.”
And he said, “No, I just did this the day before the
election.”
I said, “Well, it is your privilege. I don’t have any
problem with it. You know, you and I are friends and if
you felt that way, it wouldn’t have made any difference
anyway.”
He said, “No, I know that; I could have talked to you,
but I just really made up my mind that morning.”
I said, “Okay, that is fine.”
He said, “Do you have any problem?”
I said, “No, the only problem I had, Mike, was that you
pointed out your fellow employees and you challenged
your fellow employees; how you could do that?”
And he said, “I had to do what I had to do.” . . .
[H]e asked me: “Are we still friends?”
And I said, “Well, you know how I feel; I am on
Avondale’s side and, of course, you took sides with the
Union, but, hey, I mean, you have got to do what you have
got to do, and I have got to do what I have got to do.”
[A]nd I said, “No problem.”
And we both put our hands out over the table, shook
hands, and I said, “Just keep doing me a good job.”
He said, “No problem with that, Mike.” . . .
He walked out [of the office].

Upon the conclusion of this part of Torres’ testimony, the Gen-
eral Counsel moved to amend the second complaint to include
an allegation, as paragraph 35(b), that Respondent, by Torres,
“[t]hreatened an employee concerning his participation in a
Board-conducted election.”

44 This is not the alleged discriminatee Michael James Boudreaux.
After the motion was granted, Respondent’s counsel further
asked Torres, and he testified:

Q. Now, what did you tell Mr. Boudreaux once you
got to the office?
A. I said I didn’t know he felt that way about the Un-
ion—and of course, that is when I just found out the day
before—and the only other big question was why he chal-
lenged his fellow employees.

Once in the office, Torres told Boudreaux that the “only
problem” with his acting as observer lay in the “big question”:
how could he have challenged his “fellow employees?” A ques-
tion of “how could you have—” is a statement that the ad-
dressee has done something wrong. Wrongs are punished, as
any child knows. Torres also told Boudreaux that there was “no
problem” in his acting as an observer for the Union, but if Tor-
res had really wanted Boudreaux to believe that, he would not
have brought up the matter, much less bring Boudreaux into the
office, the locus of managerial authority, to bring up the sub-
ject. Whether it was noisy in the shop or not, the coercive at-
mosphere of the office remained; in the office the supervisor
and the employee were on even less of an equal footing than
they had been on the factory floor.
When Boudreaux told Torres that he felt that he had to chal-
lenge some employees, and asked if the two were still friends,
Torres replied that he was on Respondent’s “side,” and he
would have to do what he had to as a response. To emphasize
that he meant that he would do what he had to as a supervisor,
Torres additionally told Boudreaux to be sure that he always
did a good job. This conduct by Torres would reasonably tend
to cause an employee to fear that his job tenure was in peril
because he had engaged in the protected concerted activity, and
the union activity, of acting as observer in a Board election.
I conclude that in violation of Section 8(a)(1) Respondent,
by Torres, on June 28, 1993, threatened an employee with un-
specified reprisals because of his participation in a Board-
conducted election.
6. Autin’s threat against wearing union insignia
Adeline Plaisance (vol. 51) had been employed by Respon-
dent for 20 years when she retired in June 1994. Plaissance was
a mechanic in the inside shop of the sheet metal department.
Plaissance testified that during an afternoon in April or May
1994, she placed two small union stickers on her hardhat.
Foreman Cliff Autin, who reports to Torres, came to Plai-
sance’s work area to get coffee from a pot that is maintained
there. According to Plaisance:

Mr. Autin came over and got some coffee. And while
he was by the coffee pot, he looked over toward me. He
says, “I don’t believe you would do something like this.”
And I looked over towards him, and I says, “What are
you talking about?”
And he says, “Well, the stickers on your hat.” And he
walked over by me.
And he turned around and says, “If the wrong people
got ahold of it, it could hurt you.”
And I said, “Well, it is just a bad joke.”And I took the
stickers off.
And then I turned around, and he said, “I am just tell-
ing you this for your own good.”

Based on this testimony by Plaisance, paragraph 12 of the
fourth complaint alleges that Autin threatened employees with
AVONDALE INDUSTRIES 1095
unspecified reprisals if they “continued to wear clothing bear-
ing the Union’s insignia.”
Autin did not testify. I found Plaisance credible, and I do
credit her testimony. I conclude that, as alleged, Respondent, in
violation of Section 8(a)(1), by Autin, in April or May 1994,
threatened its employees with unspecified reprisals because
they had worn prounion insignia.
Another such threat by Autin was attested to by current em-
ployee Michael James Boudreaux who testified (vol. 46) that 2
weeks before the June 25 Board election he was in the work
area when he spoke to Autin. Boudreaux was asked and he
testified:

Q.[ By Mr. Bensinger]: Could you tell us what was
said, please?
A. I asked Mr. Autin if [I] put a “Union Yes” sticker
on my hat, would I be fired.
Q. What, if any, response did he make?
A. He stated, “Not right away.”

There is no complaint allegation based on Boudreaux’s testi-
mony, but the testimony is further evidence of Respondent’s
animosity toward those employees who would wear prounion
insignia. The undenied testimony by Boudreaux further shows
that this specific vein of union animosity existed a long time
before Autin’s 1994 threat to Plaisance, and it fortifies my deci-
sion to credit Plaisance.
7. Fedrick’s threat of plant closure
Tyrone Brousseau (vol. 42), a former fitter in Respondent’s
pipe department, testified that he began wearing “Union-Yes”
stickers on his hardhat from the inception of the organizational
attempt. Brousseau testified that in May 1993, he and his
helper, “Kirt” (whose last name Brousseau did not know), were
in the field office of General Foreman William Fedrick to get
supplies that were stored there. According to Brousseau:

Well, he [Fedrick] was asking us what we was doing in
the shack together because normally you wouldn’t have a
helper and a fitter come to the shack at the same time. . . .
I was telling him that we hadn’t just come down just to
get material, we had to get some pipe too on the outside of
the shack. . . .
Well, he say, “What you doing with those stickers on
your hardhat because you know there ain’t no union com-
ing in this yard. Before they would let a union come in
they would close the yard down.” . . .
Well, me and my helper, we left to go on the outside of
the shack to get the pipe.

Kirt was not called to testify. Based on this testimony by
Brousseau, paragraph 23 of the second complaint alleges that
Fedrick unlawfully threatened Respondent’s employees with
plant closure. Fedrick (vol. 77) denied that he made any such
statement to Brousseau or any other employee.45 Brousseau
had been discharged by Respondent at the time that he testified,
but I detected in him no hostility toward Respondent, certainly
none that would rise to the level of that which would cause him
to commit perjury. Brousseau had a favorable demeanor, and I
do credit his testimony.
I conclude that Respondent, in violation of Section 8(a)(1),
by Fedrick, in May 1993, threatened its employees with plant

45 Vol. 77 of the transcript refers to Brousseau as “Rousseau”; it is
accordingly corrected.
closure if they selected the Union as their collective-bargaining
representative.
8. Falgout’s threat against wearing union insignia
Richard Bell (vol. 36), a current employee, worked under
Shipfitting Department Foreman Walter (Coonie) Falgout in
October 1993. Bell testified that during October, he wore a
“Union-Yes” sticker on his hardhat. Bell further testified that
on October 22, Falgout told Bell to stop working and come into
Falgout’s office. When he and Falgout were alone, Falgout
hesitated at first; then:

After he got in there he start—he asked me did I like
working for him, and I told him yes. . . .
I told him to just come out and say what he had to say.
He said, “Well, can we have a confidential conversa-
tion?”
And I told him, “Go ahead on and say what you got to
say.”
He asked me did I like working for him, and I told him
yes.
He said, “Well, if you like working for me and I was
you I would take that sticker off your hat because if you-
know-who found out, he would have a fit about the
sticker.”

Bell testified that Falgout did not say who “you-know-who”
was. Based on this testimony, paragraph 76 of the second com-
plaint alleges Falgout threatened employees because they wore
prounion insignia.
As Respondent’s counsel did with all of the General Coun-
sel’s witnesses, she asked Bell on cross-examination to whom
he had ever spoken about his testimony. Bell acknowledged
that he had discussed his testimony with a union representative.
Bell was then asked and he testified:

Q. Do you recall when you discussed it with the Union
agent?
A. Approximately—had to be around about the second
day.
Q. Around approximately what?
A. The second day after that—no, excuse me. I am
wrong. It was the same day I received that write up.
Q. Was it after work the day—I am sorry. It was the
same day as what?
A. It was the same day I got told.
Q. It was the same day as your conversation with Mr.
Falgout?
A. Right.
Q. So it was on October 22?
A. Right.
Q. Was it after work that day?
A. It was after work.

(Bell further testified that when he talked to the union represen-
tative, the union representative told him that, in view of what
had happened, it would be best if he took off his “Union-Yes”
sticker.)
The “writeup,” or warning notice, to which Bell referred had
not been shown to him, and it was never placed in evidence. On
brief, without any support in the record, Respondent states that
Bell received a warning notice (for “intentional negligence”) on
October 15; also without support in the record, Respondent
states that Bell was not working on Falgout’s crew when he
received that warning notice. From these two unsupported fac-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1096
tual assertions, Respondent argues that Bell must have been
lying about being threatened by Falgout. Respondent states on
brief:

Mr. Bell said he discussed this purported statement by
Coonie Falgout with a union representative “the same day
I received that write up,” the October 15, 1993 citation for
intentional negligence. Thus, as noted above, Mr. Bell
contended that he received a citation which was the sub-
ject of an unfair labor practice charge on the same day as
the purported statement about his union sticker was made
to him at 9:00 a.m. Not only did Mr. Bell not work for
foreman Falgout at the time he received the citation, but
Mr Bell testified that when he talked to the union repre-
sentative the day he received the citation he was advised
by the union representative to take the union sticker off his
hardhat and did so.46

To make this argument, as well as relying on two unsupported
factual assertions, Respondent relies on Bell’s testimony that he
had immediately corrected. That is, as quoted above, Bell first
testified that he spoke to the union representative on the day
that he received a warning notice, but then he immediately
corrected himself and testified: “It was on the same day I got
told” about his prounion insignia by Falgout. There was no
question that Bell had corrected himself; as also quoted above,
in her next two questions to Bell, counsel additionally con-
firmed that Bell was testifying that his discussion with the un-
ion representative occurred “on October 22,” the same day that
he “got told” by Falgout that he should not wear prounion in-
signia.
Obviously, Bell had not, at first, remembered the date that he
talked to the union representative. This is not surprising; the
date was probably not too important to him. But for Respondent
to attempt to get the Board to make a factual finding based on a
witness’ statement that was immediately corrected is nothing
short of a misrepresentation of the record. If that were not rep-
rehensible enough, Respondent’s counsel compounds her mis-
conduct by adding two factual assertions that are not supported
by the record (that Bell received a warning notice on October
15, and that Bell was not working for Falgout on that date).
Respondent’s counsel is severely admonished for this con-
duct.47
Also to be noted is another statement that is made by Re-
spondent’s counsel on brief. As well as Falgout, Respondent
called employee Hashem Salomon, who was a leadman for
Falgout. Counsel asked both if they had seen Bell wear proun-
ion insignia. Falgout (vol. 95) was asked about Bell and he
testified:

Q. Do you recall whether or not he wore a union
sticker or union insignia?
A. No, ma’am. I can’t say.

Salomon was asked about Bell and he testified:

Q. Do you remember whether or not he wore union
stickers or T-shirts or anything like that?

46 R. Br. p. “Shipfitting-8.”
47 Respondent further asserts on brief that I prevented her from ex-
amining a union custodian of records about the search for the notes that
the union representative may have made when talking to Bell. The only
such examination that I prevented was one that was requested over a
year after production had been made; I felt that counsel was guilty of
laches in her request.
A. Not really. I didn’t pay that much attention to it.
Q. Do you remember seeing if he had any or not? . . .
A. He might have had one or two.

On brief, however, counsel states in argument that Bell never
wore prounion insignia:

To the contrary, not only Coonie Falgout, the foreman
alleged to have made a remark about the statement (sic:
“sticker”?), but also hourly employee Hashem Salomon
who worked on the same crew as Mr. Bell at the time of
the purported statement, both testified they had never seen
any union sticker or other union insignia worn by Mr.
Bell.48

This statement is false. As the above-quoted testimony reflects,
neither Falgout nor Salomon testified that he had not seen
prounion insignia on Bell. Falgout said that he did not remem-
ber, and Salomon testified that Bell “might have had one or
two” prounion stickers on his wearing apparel. Respondent’s
counsel is further admonished against making misrepresenta-
tions of the record.
Salomon testified that he did not hear Falgout mention union
stickers to Bell, but, again, Bell testified that he and Falgout
were alone in the office when the alleged threat was made.
Falgout denied calling Bell into his office on October 22, but he
did not deny speaking to Bell in the office that day; Falgout
was further asked on direct examination and he testified:

Q. Did you have a conversation with Mr. Bell in your
office that day that you recall?
A. Not that I can recall.
Q. On October 22 of 1993, did you tell Mr. Bell that if
he liked working for you, “if I were you, I would take that
sticker off your hat, because if you-know-who found out,
he would have a fit about that sticker.” Did you say that?
A. No, ma’am.
Q. Did you say that to Mr. Bell at any time he worked
for you?
A. No, ma’am.
Q. Did you say something to that effect to Mr. Bell
even if you didn’t use those exact words?
A. No, ma’am.

It is to be noted that counsel led Falgout by reading Bell’s tes-
timony to him and asking for a denial. Of course, counsel could
have led Falgout with a question that incorporated a noncritical
part of Bell’s testimony (such as, “Did you have a conversation
with Bell in which you asked if he liked working for you?”).
Instead, Falgout was led directly to the answer; then he was
asked to, in effect, confirm the testimony of counsel, again.
I found current employee Bell quite impressive, and Falgout
was quite the opposite. I do credit Bell’s testimony. I conclude
that, in violation of Section 8(a)(1), Respondent, by Falgout, on
October 22, 1993, threatened its employees with unspecified
reprisals because they had worn prounion insignia.
9. Terry’s threat against filing unfair labor practice charges
Donald Lund (vol. 44) is a 5-year employee of the electrical
department. In July 1993, he reported to Foreman Kenny We-
bre.49 Dennis Foret is another electrical department foreman.

48 R. Br. p. “Shipfitting-21.”
49 This is a stipulated spelling of Webre’s name, and the transcript is
accordingly corrected where it differs.
AVONDALE INDUSTRIES 1097
Lund, a known prounion employee,50 testified that, on a day in
July 1993, he confronted Webre about something that happened
earlier in the day. (That earlier event had something to do with
Webre’s speaking to Lund while Lund was in a line.) Accord-
ing to Lund:

I saw Kenny Webre standing outside of Mr. Foret’s of-
fice. And when I approached him, I told him he might
want a witness for what I was about to tell him. And he
did want a witness, so we stepped inside Mr. Foret’s of-
fice.

. . . .

[With Foret present] I said, “Kenny, I am afraid I am
going to have to file an unfair labor practice charge against
you with the NLRB for the incident that happened an hour
ago. It [an unfair labor practice charge] is kind of like the
citations [warning notices] that you all issue around here,
except possibly a bit more serious in that you and I will
have to go to NLRB court and explain what happened.”
And he said innocently, “What happened?”
And I said, “I feel that you harassed me unfairly in that
you singled me out in the line that I was standing in and
told me to, ‘Get your materials and get to work,’ and you
didn’t tell that to any of the other people who were stand-
ing in line.” And I [told Webre that I] felt intimidated and
harassed.

. . . .

[Webre] said, “I don’t want to hear any of that crap.
Just get back to work.”
And I said, “Fine.”

Lund testified that somewhat later in the morning he was
stopped by Electrical Department Superintendent Terry in a
work area and:

And when he [Terry] saw me, he said, “Don, come
here a minute; I need talk with you.” And Dennis Foret
and a foreman named Darrell Hall also happened to be
standing in the area close to Bob, and he called them over.

. . . .

He said, “Don, I am here to tell you right now that you
are here to work for us; We are not here to work for you; I
am not going to tolerate any attempts on your part to in-
timidate any of my foremen.”
He said, “If I ever hear of an incident like this happen-
ing again, I want you to know that you will be history.”
And he was yelling quite emphatically right in my face
at that time.
He continued: “Now, I just am giving you a final
warning in front of two witnesses who will swear in court
that you have just been given a final warning; Do you un-
derstand everything that I have just said?”
And I said, “Yes, but.” I wanted to speak, but he didn’t
allow it. He cut me short, and he said, “Now get back to
work,” again, yelling. And I did; I went back to work, and
that was the end of that incident.

50 When asked on direct examination what he knew of Lund’s proun-
ion sympathies, Department Superintendent Terry testified: “Only that
Mr. Lund outwardly was wearing union paraphernalia and that it was
logical for me to assume he was supporting the Union.”
Based on this testimony by Lund, paragraph 63 of the second
complaint alleges that Terry threatened an employee with dis-
charge because of his intent to file an unfair labor practice
charge.
Respondent did not call Webre or Foret to testify. Terry (vol.
90) testified that Webre telephoned him and reported his ex-
change with Lund. Terry went to the area and spoke to Lund.
Terry testified that Gerdes was present; he did not deny that he
called Foremen Hall and Foret to step near so that they could
also be witnesses to what he was going to say to Lund. Terry
testified that, in calm fashion, he told Lund that he was there to
do his job and not intimidate any foremen such as Webre. Terry
generally denied telling Lund that he would be discharged, and
he denied telling Lund that he was getting a final warning, but
he did not deny telling Lund that he “would be history” if he
again threatened to file unfair labor practice charges. Gerdes
testified consistently with Terry, and Gerdes did not deny that
Terry told Webre that he would be “history” if again he threat-
ened to file unfair labor practice charges. Respondent did call
Hall (vol. 148), but did not ask him about the confrontation
between Terry and Lund. (On cross-examination, Hall ac-
knowledged that Terry had stopped him and asked him to be a
witness to what he was going to say to Lund. Hall was not
asked on cross-examination, or redirect examination, what
Terry said.)
To secure the denial that he told Lund that he was getting a
“final” warning, Terry was asked on direct examination and he
testified:

Q. Did you ever tell Mr. Lund that, “I am giving you a
final warning in front of witnesses who will swear in court
that you have just been given a final warning”?
A. I did not.

It is to be noted that, for this denial, Respondent’s counsel read
to Terry a portion of Lund’s testimony as quoted above. This
was a technique that Respondent used when counsel apparently
felt more confident in the denial that was forthcoming. (And,
indeed, Lund had acknowledged on cross-examination that
Terry had not expressly stated that he was giving Lund a “final”
warning.) Whether Terry expressly used the term “final,” how-
ever, is not the ultimate factual issue. The ultimate factual issue
is whether Terry told Lund, as Lund testified: “If I ever hear of
an incident like this happening again, I want you to know that
you will be history.” Such a statement could only have been
comprehended by the employee as a final warning, even if the
word “final” was not used.
Terry did not deny telling Lund that he would be “history” if
he again threatened to file unfair labor practice charges against
a supervisor. To the extent the testimonies of Terry and Gerdes
can arguably be said to contain such a denial, I discredit it
against the unequivocal testimony of Lund who is a current
employee and who had a convincing demeanor. I further credit
Lund’s testimony that Terry “was yelling quite emphatically
right in my face at that time,” and I credit Lund’s testimony
about all other aspects of the exchange between him and
Terry.51

51 As will be seen, Terry’s willingness to lie under oath was demon-
strated in the case of alleged discriminatee Michael Molaison. Terry
was willing to testify that he accepted a confession of misconduct from
Molaison, and that he discharged Molaison for that misconduct, on a
day that Terry was not even at the plant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1098
Terry’s testimony is that he spoke to Lund because Lund had
“distracted” his supervisor and said that he “wanted” the super-
visor to stand before witnesses. Even as Terry related what he
had been told by Webre, however, the “distraction” to Webre
was necessarily minimal; even according to Terry, Webre was
asked, and only asked, to come outside his office. Moreover,
according to Lund’s uncontradicted testimony, Webre was
standing outside Foret’s office, not sitting in his own office,
when he was approached by Lund. Webre first agreed to go
into Foret’s office so that Foret could be a witness to what
Lund was going to say to Webre. Webre withdrew from this
agreement when Lund mentioned the NLRB. Then Webre told
Lund to go back to work, and then Webre called Terry.
Terry’s statement to Lund that he would be “history” was
prompted by Lund’s statement to Webre that Lund intended to
file charges under the Act. To tell an employee that he will be
“history” is to tell him that he will not be seen in the work place
any longer. As such, the statement is a threat of discharge that
would reasonably have the tendency to coerce any employee in
the exercise of his Section 7 right to file charges under the Act.
I conclude that, in violation of Section 8(a)(1), Respondent, by
Terry, in July 1993, threatened its employees with discharge if
they filed charges under the Act.
10. Fruchtnicht’s threat against filing charges and impression
of surveillance
In May and June 1994 current employee Roger McGee
worked in the paint department under Foreman Robert Frucht-
nicht. In early June, McGee filed an unfair labor practice
charge against Respondent. (That charge, which is not before
me, involved an assignment that Fruchtnicht had given
McGee.) McGee (vol. 53) testified that during the week follow-
ing the filing of that unfair labor practice charge he was in
Fruchtnicht’s office, asking about some vacation-leave credit.
Then, according to McGee:

[Fruchtnicht] told me that I had filed a grievance
against him and that he didn’t appreciate it and that he
hadn’t did anything to anybody in the shipyard. . . .
He told me that he knew that I was affiliated with the
Union and that he didn’t know what those people over
there were telling me. . . .
And I said, “Yes, I am a union supporter, and it is for
the protection of my job, and what was did was nothing
personal.”

. . . .

He informed me that he was taking it personally and
that he had to do whatever he had to do.

Based on this testimony by McGee, paragraphs 19(a) and (b),
respectively, allege that Fruchtnicht created an impression of
surveillance and threatened an employee with unspecified re-
prisals.
On direct examination Fruchtnicht (vol. 83) testified:

I think there was a discrepancy or a problem with a va-
cation day, and he came in my office to talk to me about it,
and while we were in there discussing that, I brought up
that I was not satisfied because he filed a complaint
against me.

. . . .

[I said] that I took it as a personal insult that he would
file it against me, because I thought we were friends, you
know.
[McGee] said, “Well, I did what I had to do.”
And I said, “Well, that is exactly what I got to do; I got
to do what I got to do.” . . .
I said, “I have done nothing to hurt you; I have always
tried to help you. I can’t understand why you are doing
this.”
And he said that, “Don’t take it personally.”
I said, “Well, I am.”

Fruchtnicht did not deny stating to McGee that he knew that
McGee “was affiliated with the Union.” Fruchtnicht testified
that he knew that McGee was in favor of the Union because
McGee had worn union T-shirts several times. On cross-
examination, Fruchtnicht testified that, previous to the ex-
change in question, he had twice caused McGee to be trans-
ferred to get him out of work that would irritate a lung condi-
tion that McGee had developed. Fruchtnicht acknowledged
that, at the time that he testified, he was still angry with McGee
“a bit” over the charge that McGee had filed. Cross-
examination further made clear that the “complaint” or “griev-
ance” that Fruchtnicht was speaking about in the exchange with
McGee was an unfair labor practice charge.
In summary, Fruchtnicht had previously afforded McGee fa-
vors in the form of job transfers. When Fruchtnicht learned that
McGee had filed unfair labor practice charges, he became an-
gry, and Fruchtnicht remained angry “a bit” continuing through
the date that he testified. In expressing his anger over the em-
ployee’s protected concerted activity of filing unfair labor prac-
tice charges, Fruchtnicht told McGee that he was taking the
matter “personally,” and he would do, thereafter, what he had
to do, obviously in the form of retribution. Given the history
behind his statement, Fruchtnicht was, at minimum, threatening
that he would no longer afford McGee transfers because he had
filed unfair labor practice charges.52
I conclude that in violation of Section 8(a)(1), Respondent,
by Fruchtnicht, in early June 1994, threatened its employees
with unspecified reprisals if they filed charges under the Act.
McGee regularly wore union T-shirts, and, given such cir-
cumstance, no reasonable employee would feel coerced by a
statement that a supervisor knew that the employee was “affili-
ated” with a union. I shall recommend dismissal of the allega-
tion that by Fruchtnicht’s remark Respondent conveyed the
impression of unlawful surveillance to employees.
11. Interrogations by Reeves
The first complaint, at paragraph 11, alleges that on various
occasions in March or April 1993, Respondent, by Daniel J.
Reeves, interrogated its employees. The only witness called by
the General Counsel to testify about this allegation was Reeves,
himself. Reeves was employed by Respondent in the electrical
department for 13 years, the last 2 or 3 of which were as a
foreman. As a foreman, Reeves reported to General Foreman
James Kelly who, in turn, reported to senior General Foreman
Jerry Gerdes and Superintendent Robert Terry. Reeves was
friendly with alleged discriminatee James Cox; Reeves partici-

52 On brief, Respondent’s counsel describes McGee as Fruchtnicht’s
“quisling friend.” Apparently Fruchtnicht felt the same way, but only
after McGee exercised his statutorily protected right to file unfair labor
practice charges.
AVONDALE INDUSTRIES 1099
pated in some of Cox’s protected concerted activities; and
Reeves was discharged on May 17, the day after Cox was dis-
charged. (Reeves’ discharge is not alleged as a violation under
any theory of Section 8(a)(1); ultimately herein, I find that
Cox’s discharge was not violative of Section 8(a)(3).)
Reeves testified (vol. 46) that in a meeting in March or April
1993, Kelly told all of the foremen under him that he had re-
ceived instructions from Terry to meet with employees indi-
vidually and read a letter from Respondent that stated argu-
ments against the Union’s organizational attempt. Reeves did
not retain a copy of the letter; he described it: “It is Avondale’s
viewpoint on the Union, you know, how the Union would be
bad for Avondale and that we don’t need a union, that sort of
thing.” According to Reeves:

We were told to take a letter they had given us giving
Avondale’s view of the Union to our employees, each em-
ployee individually, and read them to them, and then ask
their opinion whether they agree with Avondale, disagreed
or had no comment. . . .
And then we were supposed to report back numbers
only to James Kelly of how many agreed, how many dis-
agreed and how many had no comment. . . .
I asked him [Kelly] if he was sure that was legal to do
because we had been informed by the lawyer that we
weren’t supposed to ask that kind of questions. But he told
me because we were just asking for numbers and not
names, that we could go ahead and do it.

Reeves testified that, the same day, he did as he was told and
met with 17 or 18 electricians. He reported the numerical re-
sults to Kelly. He testified that he told Kelly that he thought
that any “no comment” should be considered prounion, and
Kelly agreed.
Kelly testified (vol. 136) that in March, before he attended a
TIPS meeting, he was asked by someone to tell his foremen to
observe their crews and report back to him how many were for
or against the Union. Kelly did this; his foremen reported num-
bers (but not names) of employees who favored (or did not
favor) the Union. He reported the results to Gerdes. He testified
that he had never before, or since, been asked to have his fore-
men make such observations. Nevertheless, Kelly testified that
he could not recall who asked him to have the survey conducted
in the first place. I found incredible Kelly’s testimony that he
could not recall who asked him to make his one-and-only as-
sessment of the Union’s strength among his employees, even
though he did remember to whom he reported the results,
Gerdes. (This early survey is not alleged as an interrogation;
however, the evidence of it shows Respondent’s disposition for
systematic inquiries about the employees’ prounion sympathies,
and Kelly’s testimonial forgetfulness reflects his indisposition
to tell the truth, a factor to be considered in comparing his
credibility with that of Reeves.)
Kelly testified that he gave copies of Respondent’s campaign
letters to his foremen and told them to read the letters to em-
ployees; he denied that he told his foremen to solicit the em-
ployees’ opinions of the contents of the letters. Kelly testified
that he learned not to do such things in the TIPS meeting that
counsel and Simpson conducted. Kelly testified that counsel
read the TIPS card and gave examples of what the supervisors
could not do. Kelly was not asked to repeat any of counsel’s
examples of what supervisors could not do, and Kelly did not
testify that he heard Simpson or counsel say in the TIPS meet-
ing that supervisors should not interrogate employees. (It is to
be noted that the acronym of the TIPS card does not use the “I”
for “interrogate.” The TIPS card uses the “I” for “intimidate,” a
factually vague term, at best. The “Foreman’s Guide to a union-
free Policy for Avondale” warns against interrogating employ-
ees, but Kelly testified that he never received that document.)
In summary, Kelly was an unimpressive witness. I have con-
sidered the fact that Reeves had been discharged by Respondent
by the time he testified, and Reeves clearly felt that his dis-
charge was unfair. Nevertheless, I felt that Reeves was testify-
ing truthfully on this issue, and I do credit his testimony. Spe-
cifically, I credit Reeves’ testimony that he was told by Kelly to
solicit and record the opinions of the employees about the or-
ganizational attempt. I further credit Reeves’ testimony that
when he reported back to Kelly, he and Kelly agreed that the
employees who gave noncommittal answers should be counted
as prounion.
That Reeves and Kelly did not record the names of the ques-
tioned employees is not a controlling consideration. In the first
place, according to this record, the employees were given no
assurances that their names were not being recorded along with
their answers. Even if such assurances had been given, every
questioned employee would know that his name could be re-
membered, even if it was not written down at the time. Addi-
tionally, the questioning was done systematically; most assur-
edly, it “lacked the casual, amiable character which frequently
typifies innocuous union-related conversations in the work-
place,” as phrased by UARCO, Inc., 286 NLRB 55 (1987),
which is cited by Respondent on brief. Whether Reeves talked
to the employees in private or not, the employees must have
known that their opinions, collectively as well as individually,
were being counted. Finally, the totality of the circumstances
surrounding the interrogations included a background of multi-
tudinous violations, including violative discharges; therefore,
under the tests of Sunnyvale Medical Clinic, 277 NLRB 1217
(1985); and Rossmore House, 269 NLRB 1176 (1984), it must
be held that the questioning itself was coercive. Also see
Reeves Bros., 320 NLRB 1082 (1996), where an unlawful inter-
rogation was found where an employer’s agent showed an em-
ployee a business letter and asked him how he stood on the
employer’s position that was consistent with the letter.
I find that the systematic interrogations of employees by
Reeves, conducted in a background of violative discharges,
constituted conduct likely to coerce employees in their Section
7 rights. I therefore conclude that, in violation of Section
8(a)(1), Respondent, by Reeves, in March or April 1993, inter-
rogated its employees about their union membership, activities,
or desires.
12. Interrogation by Foret
Lester Friloux was employed by Respondent in the shipfit-
ting department as a fitter during the first 6 months of 1993. He
was discharged on June 15, 1993, but that discharge is not al-
leged to be violative. His immediate foreman was Ray Raffey;
Raffey reported to General Foreman Emil Foret Jr. Friloux
testified that about June 1, he was approached in his work area
by Foret; no one else was present. According to Friloux:

He said, “I heard you was getting Union pamphlets at
the gate and talking to the Union people.”
I said, “Yes. Everybody else did it. So, you know, I got
my pamphlet.”
He said, “I heard you was for the Union.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1100
I said, “Well, you know, I am neutral.”

Friloux testified that nothing else was said between Foret and
him at the time. Based on this testimony by Friloux, paragraph
20 of the first complaint alleges that Foret unlawfully interro-
gated Respondent’s employees.
Foret did not testify. I credit Friloux’s testimony. I conclude
that, in violation of Section 8(a)(1), Respondent by Emil Foret
Jr., about June 1, 1993, interrogated its employees about their
union membership, activities, or desires.
13. Minchew’s interrogation by offering a “Vote-No” stencil
Before he was discharged in July 1993, Barry Ross was em-
ployed as a shipfitter under Foreman James Minchew. (Ross’
discharge is not a subject of the complaint.) Ross testified (vol.
36) that for a few weeks before the June 25 Board election, he
wore two “Union-Yes” stickers on his hardhat. During the
week before the election, according to Ross, “[e]veryone had to
get them [their hardhats] spray-painted, whether they wanted or
not.” According to Ross, when Minchew approached him with
the spray-paint, he took the two “Union-Yes” stickers off his
hardhat. Later in the day, Minchew approached Ross with a
“Vote-No” stencil. Minchew asked Ross if he wanted “Vote-
No” painted on his hardhat. Ross testified that replied that he
did not; Minchew said nothing in reply. Based on this testi-
mony, paragraph 44 of the second complaint alleges that
Minchew unlawfully interrogated Ross.
Minchew (vol. 99) testified that he may have painted Ross’
hardhat in “early June,” but he denied offering Ross a “Vote-
No” stencil. Minchew testified that he was absent from work on
vacation and military leave from June 11 through 25, and he
identified documentary evidence to show that this testimony
was true. Ross was credible in his testimony that Minchew
offered him a “Vote-No” stencil, and it is apparent to me that
he was mistaken only about the date.
Offering employees “Vote-No” stickers to wear has been
held to be a method of interrogating employees because the
practice requires employees to declare whether they favor a
union. In this case, however, the employee had just peeled his
prounion stickers from his hardhat in front of the supervisor.
Ross’ sympathies were clear; he had been, until the moment,
declaring his sympathies to the supervisor involved (and any-
one else who ever got close enough to see the stickers).
According to this record, no other employee was offered “Vote-
No” stencils at the time; therefore, the interrogation, if any, was
hardly systematic. Also, Ross was not threatened in any way.
Finally, there is no other factor that implies a coercive element
to Minchew’s offer to Ross of the “Vote-No” stencil. For these
reasons, I shall recommend dismissal of this allegation of the
complaint.
14. Toledono’s threat of unspecified reprisals
Johnny Burton is a current employee of Respondent’s Clean-
up During Construction Department (CDC). Burton testified
(vol. 52) that in May 1994 he had an exchange with Foreman
Roy Toledono:

[Toledono] asked, “What are you going to do if the
Union don’t get in here?”
I said, “Well, God makes a way for everybody. I mean,
I believe that He would make a way for me to get another
job because I believe in the Union, now. I have been in it
before.”

Based on this testimony, paragraph 14 of the fourth complaint
alleges that Toledono unlawfully threatened an employee with
unspecified reprisals.
Toledono did not testify. I found Burton credible, and I do
credit his testimony. I do not, however, find any threat or other
coercive remark to be contained in that testimony. Toledono
did not tell Burton that he would be subject to any adverse con-
sequences if the Union was, or was not, ultimately successful in
the organizational attempt. Burton may have guessed that Tole-
dono was implying that he would have to seek work elsewhere
if the Union was successful, but he did not do so on any ra-
tional basis that appears in the record. Therefore, I shall rec-
ommend dismissal of this allegation of the complaint.
15. Clement’s threat to deny a transfer
As it was originally issued, the second complaint, at para-
graph 74, alleged a threat by Glen Clement, a general foreman
in Respondent’s paint department. The General Counsel called
former employee Reynard Smith (vol. 23) to testify in support
of that allegation. Cross-examination of Smith went beyond the
direct examination. On the basis of the testimony that went
beyond the direct examination, the General Counsel moved at
trial to amend paragraph 74 to allege additional violations of
Section 8(a)(1). I granted the motions. Paragraph 74, as origi-
nally issued, is now paragraph 74(a). An allegation that Fore-
man Carl Mott Jr., unlawfully warned the employees that their
collective-bargaining efforts would be futile is now paragraph
74(b). An allegation that Paint Department Superintendent
Charlie Bourg Sr. unlawfully interrogated employees, solicited
their grievances, and impliedly promised to remedy those
grievances, is now paragraph 75(c).
Smith was employed in the paint department from 1982 to
July 1993, at which time he was discharged. The Union filed a
charge over the July discharge, and Smith was re-hired (or pos-
sibly reinstated) in August. Smith was then placed in the sheet
metal department where he was working when he was again
discharged in November 1993. The stated bases for both dis-
charges was absenteeism. (There is no allegation in this case
that either of Smith’s discharges was violative.)
The second complaint, at paragraph 74(a), alleges:

About late September 1993, on a date not more pre-
cisely known to the General Counsel, Respondent, by
Glenn Clement at its facility, advised its employees that an
employee was not wanted back in the Paint Department
because the employee [had] complained to the Union and
was named as a discriminatee in an unfair labor practice
charge filed with the Board.

In support of this allegation, Smith testified that during his
tenure in the sheet metal department, he approached Clement
and:

Well, I asked Mr. Clement if he would consider having
me work back in his department. . . .
And he told me he didn’t want me back . . . because I
had went and filed a complaint with the Union, and which
caused him to go and have to give a statement, and so he
didn’t want me back. . . .
I just walked away.

On direct examination, Clement, was asked about the ex-
change with Smith, and Clement testified (vol. 86):

AVONDALE INDUSTRIES 1101
He wanted to know if he could come back into the
Paint Department because he wasn’t making overtime with
Sheetmetal. . . .
I told him he blew his chance with the Paint Depart-
ment by missing too much time [before Smith’s July dis-
charge for absenteeism]. . . .
I told him it was nice to see him, because we were
friends when he was working for us. And basically, that
was it.

After that testimony about what had been said between him and
Smith, Clement was (properly) led to the following denials:

Q. Did you give a statement on Reynard Smith to any-
one?
A. No, ma’am.
Q. In the conversation you described, did either you or
Mr. Smith say anything about giving a statement concern-
ing his termination?
A. No, ma’am.
Q. Did either you or Reynard Smith say anything
about giving a statement to the Labor Board on any sub-
ject?
A. No, ma’am.

Of course, the reference to an unfair labor practice charge
(complaint), not some “statement,” was the specific subject of
paragraph 74(a) of the complaint, and it was the ultimately
important element of Smith’s testimony about Clement’s con-
duct. Clement was not, however, asked to deny that, during the
exchange with Smith, he had referred to an unfair labor practice
charge, or a “complaint,” as Smith had testified. To the extent
that Clement’s testimony could possibly be construed to consti-
tute a denial of Smith’s testimony about Clement’s reference to,
and expressed resentment of, an unfair labor practice charge
having been filed on Smith’s behalf, I discredit it. Smith was
the more believable witness on the issue of what was said in the
exchange in question, and I do credit Smith’s testimony. I con-
clude that, in violation of Section 8(a)(1), Respondent, by
Clement, in late September 1993, threatened an employee that
it would deny him a transfer because an unfair labor practice
charge had been filed on behalf of that employee.
16. Mott’s threat of futility
When Smith was asked during cross-examination about other
statements by other supervisors that he had witnessed, Smith
testified that during his first tenure with Respondent, Paint
Department Foreman Carl Mott Jr. addressed his crew at an
employer campaign meeting. Smith testified:

I remember that he spoke against the Union coming
into Avondale. And he advised us to use our heads and our
judgment in voting, and stuff like that, saying that the Un-
ion—voting for the Union is not going to help us. I recall
that conversation. . . . Just basically, you know, “Hey, we
don’t want to be having a union at Avondale.” You know,
basically, that was it.

It was on the basis of this testimony that the General Counsel
moved to include in the second complaint, as paragraph 74(b),
the allegation that:

[A]bout a date between March 1, 1993 and June 25,
1993, on a date not more precisely known to the General
Counsel, Respondent, by Carl Mott, Jr., at its facility
threatened its employees that their selection of the Union
as their bargaining representative and/or their union or
protected concerted activities was futile.

Mott testified for Respondent, but he did not deny that he made
such statements to a group of employees during the preelection
period.
Smith’s testimony goes no further than that Mott told the
employees “stuff like” voting for the Union was not going to
help the employees. Smith did not say that Mott said this. As it
appears in print, and as his demeanor indicated, Smith was
summarizing Mott, or expressing his opinion of Mott’s words,
but not necessarily what Mott had said. At any rate, Smith was
not testifying that Mott had used words that would reasonably
cause an employee to conclude that the organizational effort
would be futile because of anything that Respondent might
unlawfully do. For this reason, I shall recommend that this
allegation of the complaint be dismissed.
17. Bourg’s interrogation, solicitation of grievances, and
promise of remedy
Counsel for Respondent also elicited from Smith testimony
about another employer campaign meeting that was held during
Smith’s tenure in the paint department during the spring of
1993. To place Smith’s testimony in context, it is here noted
that the production and maintenance employees had received
annual, unit-wide, wage increases for several years through
January 1990; however, in 1991, 1992, and 1993, no such in-
creases were given. According to Smith, after several supervi-
sors spoke against the organizational attempt during the em-
ployer campaign meeting, Superintendent Charles Bourg Sr.
spoke. Smith testified:

[Bourg] asked the employees what is the best—what
was their thoughts of the Union coming in and why
weren’t the employees happy at Avondale.

. . . .

Well, I told him one of, some of, the reasons why we
weren’t happy was because of our wages and how, they
was not—we wasn’t getting no annual raises in years—
hadn’t been given raises in years, and how he [had, on a
previous occasion] lied and told us that we all was going
to be given a raise on this particular job that they had in
the dry dock.
And [I said that] he [had, on that prior occasion] said
that, “Yes; Well, all you guys is going to get a raise, [n]o
matter what, [if] you all get this job out in time.” And we
did get the [dry dock] job out ahead of time. And I said,
“You didn’t give us no raise; you didn’t give us nothing.”
And [Bourg then replied that] it was [now] out of his
hands to give us a raise and he couldn’t do nothing for us.
So that was it.

It was on the basis of this testimony that the General Counsel
moved to include in the second complaint, as paragraph 74(c):

About a date between March 1, 1993 and June 25,
1993, on a date not more precisely known to the General
Counsel, Respondent, by Charlie Bourg, Sr., interrogated
its employees and solicited their grievances and thereby
implied[ly] promise[d] to address their respective griev-
ances if they did not select the Union as their bargaining
representative and did not engage in union or protected
concerted activities.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1102
Additionally, the General Counsel relies on certain testimony
given by Clement during his cross-examination as support for
this allegation. Clement testified that during some employer
campaign meetings at which Bourg spoke:

Basically, he [Bourg] was saying if anybody had any
kind of safety problems, bring them up to their supervi-
sors. If their supervisors didn’t take action on them, come
to him. That is what he [Bourg] was there for.

. . . .

Equipment problems. The same thing. If anybody had
problems with equipment, you know, he was—in other
words, we was out there to solve the problems that [em-
ployees] had because it was a hot topic at the time. . . .
You know, we touched on contracts we were bidding
that was future contracts coming up. That was another hot
topic, that we weren’t getting any work. We touched on
that. He [Bourg] touched on the safety program. He
touched on equipment being used by the Paint Depart-
ment, and that if anybody had any problems, he was there
to help. We were there to help.

On direct examination Bourg testified that Production Vice
President Simpson had issued “questionnaires” to superinten-
dents that contained topics to talk about during employer cam-
paign meetings. Bourg was asked, and he testified:

Q. [By Ms. Canny]: Aside from what you told Mike
Simpson afterwards about the meeting, what did you tell
employees or ask employees in terms of what their prob-
lems were?
A. I didn’t ask anyone personally their problems; only
what was outlined on the questionnaire.
Q. What, to the best you recall, did you ask or say to
the group of employees that were at the meeting concern-
ing what their problems might be?
A. Again, I didn’t ask them personally; only what was
the topic and then what they said about the topic. And we
wrote down their comments on the form that was pre-
sented to us.
Q. Did you ever say or ask employees to tell you in a
group what problems they had with Avondale or some-
thing like that?
A. Not to say—you know, we asked them what their
problems were, you know. We wanted to know, we
wanted to find out if they had [problems] with working at
Avondale, and what the problems were.
Q. And what do you recall, if anything, employees said
in response?
A. I can’t recall exactly what they said, because there
was different things that they said. And what was said, you
know, I can’t remember exactly what was said.
Q. Did you tell them anything in response, that you
would fix those problems or anything to that effect?
A. I couldn’t . . . promise anything.
JUDGE EVANS: Did you respond at all?
THE WITNESS: I didn’t respond. All I did, I wrote—I
just made note of it and turned it in.
Q. [By Ms. Canny]: And what kind of a note did you
make?
A. It was just on the forms that was presented to us to
write down and turn in to Mike Simpson.
Q. Did you make note of the names of any employees?
A. No, we did not.
Q. And what did you turn in to Mr. Simpson, that you
recall?
A. Only what was said, that their grievance was or
what they thought should be done.

In Uarco, Inc., 216 NLRB 1–2 (1974), the Board stated:

[T]he solicitation of grievances at pre-election meetings car-
ries with it an inference that an employer is implicitly promis-
ing to correct those inequities it discovers as a result of its in-
quiries. Thus, the Board had found unlawful interference with
employee rights by an employer’s solicitation of grievances
during an organizational campaign although the employer
merely stated it would look into or review the problem but did
not commit itself to specific corrective action; the Board rea-
soned that employees would tend to anticipate improved con-
ditions of employment which might make union representa-
tion unnecessary. However, it is not the solicitation of griev-
ances itself that is coercive and violative of Section 8(a)(1),
but the promise to correct grievances or a concurrent interro-
gation or polling about union sympathies that is unlawful; the
solicitation of grievances merely raises an inference that the
employer is making such a promise, which inference is rebut-
table by the employer.

In Uarco, the Board found no violation because the employer
rebutted the inference by repeatedly informing the employees
that it could make no promises regarding the grievances that
had been raised. Additionally, the Board found the record de-
void of any showing of union animus or concurrent unfair labor
practices on the part of the employer. This case is different.
Bourg testified that he could not promise the employees any-
thing, but he did not testify that he told the employees that he
could not promise them anything. (Indeed, Bourg testified that
he did not respond at all.) Smith testified that Bourg told the
employees that he could do nothing about wage increases, but
Smith did not testify that Bourg told the employees that he
could not do anything about the other things that might be caus-
ing the employees not to be “happy” and causing the attempt of
“the Union coming in.” Moreover, Clement’s testimony was
clear that Bourg was promising “to help” and remedy safety
and equipment problems immediately, if the employees would
just tell Bourg what the problems were. That is, rather than
telling the employees that he could make no promises, Bourg
left open the hope that the expressed grievances would receive
remedy.53 At minimum, this was an implied promise of bene-
fits to make the employees “happy,” and keep the Union out.
Finally, even if there was no express promise to remedy griev-
ances that Bourg solicited, the solicitation of the grievances
during an employer campaign meeting, and asking employees
“what they thought should be done,” implies a promise to rem-
edy the employees’ grievances. This is especially true when, as
here, the solicitation is made in a context of antiunion animus.
I conclude that, as alleged, Respondent, in violation of Sec-
tion 8(a)(1), by Bourg Sr., in the spring of 1993, solicited its
employees’ grievances and promised to remedy them in order
to discourage prounion sympathies.
I do not find in any of the testimony, however, an interroga-
tion by Borg about the employees’ union activities, member-
ships or sympathies; accordingly, I shall recommend dismissal
of this allegation of the complaint.

53 Although Smith did not use the word “grievance,” Bourg did.
AVONDALE INDUSTRIES 1103
18. Benoit’s threat to withhold a wage increase
Betty Dumas is an employee of the pipe department who
works immediately under Foreman Timmy Benoit. Dumas
testified (vol. 52) that for most of 1994 she essentially covered
her hardhat with “Union-Yes” stickers. At trial, Dumas dis-
played her hardhat that had about 10 “Union-Yes” stickers on
each side. Also she has worn prounion buttons and T-shirts to
the plant.
Sometime during the spring of 1994, Benoit recommended
Dumas for an upgrade (and wage increase) from third-class to
second-class fitter. By June 9, Dumas had not received the
upgrade or the wage increase. Dumas testified that on June 9,
she went to Department Superintendent Frank Fradella and
asked some questions about employee pay raises. After that,
she approached Benoit and:

I told Timmy, “I just finished talking to Frank about a
raise.”
He say, “You keep pushing the issue, you ain’t going
to never get a raise like that. Look what you are wearing.”

. . . .

I say, “I can’t help it.”

At the time, Dumas was wearing a union T-shirt, and her hard-
hat was covered with the “Union-Yes” stickers as described
above. She also had one safety sticker on the hardhat. Based on
this testimony, paragraph 18 of the fourth complaint alleges
that Benoit unlawfully threatened to withhold a wage increase
from Dumas.
Benoit (vol. 80) flatly denied making any such statement to
Dumas, but he did not deny that her hardhat was covered with
prounion stickers in early June. I credit Dumas who had a more
credible demeanor and who was testifying against her immedi-
ate superior. On brief, Respondent argues that, even if Dumas is
credited, her testimony is ambiguous because Benoit could
have been referring to the safety sticker that was on Dumas’
hardhat. While the safety sticker was large, the “Union-Yes”
stickers plainly were the most salient aspect of Dumas’ cloth-
ing. Moreover, Benoit did not qualify his threat to the safety
sticker; his reference was to all of Dumas’ clothing, and the
insignia on it. In this circumstance, any reasonable employee
would feel that Benoit was referring to the prounion insignia as
well as the safety insignia (if the safety insignia was being re-
ferred to at all).
I find and conclude that, in violation of Section 8(a)(1), Re-
spondent, by Benoit, on June 9, 1994, threatened to withhold
wage increases from an employee because that employee had
been wearing prounion insignia.
19. Interrogations of employees in preparation for—litigation
In Johnnie’s Poultry Co., 146 NLRB 770 (1964), the Board
enumerated certain safeguards that must be afforded employees
when agents of an employer interrogate them in preparation for
litigation. The safeguards (which include, inter alia, telling the
employees the purpose of the inquiries and telling them that
their participation in interviews is voluntary) are “designed to
minimize the coercive impact of otherwise unlawful employer
interrogation into the concerted protected and union activities
of its employees.” Holyoke Visiting Nurses Assn., 313 NLRB
1040 (1994).
The third complaint, at paragraph 7, alleges:

About June 29, 1993; about the last week of July 1993,
a more precise date being unknown to the General Coun-
sel; about mid-October 1993, a more precise date being
unknown to the General Counsel; and about December 3,
1993, Respondent, by an unnamed agent or agents, at its
facility, interrogated its employees about their union
membership, activities and sympathies and the Union
membership, activities and sympathies of other employ-
ees.

As made clear by counsel for the General Counsel at trial, this
is an allegation that an attorney for Respondent interrogated an
employee without affording him the safeguards of Johnnie’s
Poultry.
As it was originally issued, the third complaint also included,
as paragraph 8, an allegation that an attorney for Respondent
had, in a telephone interview, interrogated an employee, with-
out affording that employee the Johnnie’s Poultry safeguards.
At trial, the General Counsel moved to renumber paragraph 8
as paragraph 8(a) and add two other subsections. Paragraph
8(b) of the third complaint is now an allegation that Supervisors
Ernest Foret Sr. and Norris Pertuit interrogated an employee on
February 22 or 24, 1994, without affording that employee the
Johnnie’s Poultry safeguards. Paragraph 8(c) is now an allega-
tion that an attorney for Respondent interrogated an employee
on February 28, 1994, without affording that employee the
Johnnie’s Poultry safeguards.
In support of paragraph 7, the General Counsel called Don-
ald Huber (vol. 60). The General Counsel contends that an
attorney for Respondent unlawfully interrogated Huber on the
dates mentioned in the complaint because the attorney asked
Huber some questions about the conduct of the June 25 Board
election without assuring him that he need not talk to the attor-
ney. Huber, however, verified his signatures on three separate
documents in which Huber acknowledged receipt of the
Johnnie’s Poultry safeguards.54 Moreover, the questioning, as
described by Huber, did not involve his, or other employees,
protected concerted activities, or union activities. Therefore, the
Johnnie’s Poultry safeguards were not required. I shall, there-
fore, recommend dismissal of paragraph 7 of the third com-
plaint.
At trial, I dismissed paragraph 8(a) on grounds which the
General Counsel does not question on brief. In support of para-
graph 8(b), the General Counsel called current employee Law-
rence Arabie who testified (vol. 50) that on February 22 or 23,
he was ordered to the office of Welding Department Superin-
tendent Norris Pertuit. There, Pertuit and General Foreman
Ernest Foret Sr. asked Arabie to look at three pieces of paper,
and they asked him if he had seen them before. Arabie could
not read the words on the papers because he was not then wear-
ing his glasses. He could tell that two of the papers were car-
toons; one of the cartoons showed bags of money, but he could
testify to nothing more about them. Arabie told the supervisors
that he believed that he had seen the cartoons on a soap dish in
the restroom. Pertuit began reading the third document; accord-
ing to Arabie, Pertuit indicated that it was a letter from some-
one who predicted an ultimate union victory in the Board elec-
tion (apparently after the then-pending objections and chal-
lenges were resolved) and the author of the letter said that the
supervisors let him down. Arabie interrupted the reading and

54 I discredit Huber’s testimony that he did not remember signing the
documents.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1104
asked if that was a letter that had been signed by Bossier, Re-
spondent’s president. Pertuit replied that the letter purported to
be from Bossier, but Bossier had not signed it.55 Arabie told
Pertuit that another employee had shown him a copy of such a
letter, but he did not know anything else about it. Pertuit told
Arabie to go back to work. According to Arabie’s testimony,
neither Pertuit nor Foret told him the purpose of the inquiry,
and they did not tell him that his participation was voluntary.
In support of paragraph 8(c), Arabie further testified that on
February 28 his supervisor ordered him to go to Simpson’s
office suite. There he was met by a woman who represented
herself to be one of Respondent’s attorneys. The attorney
showed Arabie some papers but, again, he was not wearing his
glasses. The attorney asked Arabie if he could tell if he had
seen the papers before and if he knew anyone who could tell
her the source of the papers. Arabie told the attorney that, if
they were the same papers that Pertuit and Foret had previously
shown him, he could not. The attorney then asked Arabie if he
would sign a paper that indicated that his participation in the
interview was voluntary; Arabie replied that he would not sign
the paper because his supervisor had ordered him to be there.
Arabie then left the office and went back to work.
While the interrogators of Arabie did not give Arabie the
Johnnie’s Poultry assurances, neither did they ask him about
his union or protected concerted activities or the protected con-
certed activities of other employees. Therefore, the Johnnie’s
Poultry safeguards were not required. I shall, therefore, also
recommend dismissal of paragraphs 8(b) and (c) of the third
complaint.
B. The 8(a)(3) Allegations and the Remaining
8(a)(1) Allegations
As mentioned above, there are 136 8(a)(3) allegations de-
cided herein. Of those, 113 are allegations of unlawfully im-
posed discipline (such as warning notices and discharges) and
allegations of unlawful transfers and onerous work assign-
ments. (For convenience, I refer to these as the “disciplinary
allegations” or “disciplinary cases,” although, strictly speaking,
the transfers and assignments were not imposed as discipline.)
The remaining 23 8(a)(3) allegations are refusal-to-hire allega-
tions. The disciplinary allegations will be decided first.
I have divided all disciplinary allegations into 65 cases.
There are 61 disciplinary cases involving separate alleged dis-
criminatees. There are four cases involving more than one al-
leged discriminatee; these include allegations for alleged dis-
criminatees: (1) Cornelius King and Leroy Jackson who re-
ceived warning notices together; (2) Marty Bourgeois, Dwayne
Braud, and Glen Zeringue who were discharged together; (3)
Archieve Triggs and Gerald Leban who were issued warning
notices and allegedly harassed together; and (4) seven other
employees who were denied compensation for appearing as
witnesses for Respondent in the postelection hearing on objec-
tions and challenges in the representation case. I have arranged
the disciplinary allegations according to the types of miscon-
duct that Respondent attributes to the alleged discriminatees.
Each of the disciplinary cases is introduced by a syllabus that
contains a summary of the allegations of the complaint, the
contentions of the parties, and my ultimate findings and conclu-

55 Arabie never possessed the letter, and he could not identify a
document that the General Counsel offered as a copy of the letter that
Pertuit had read to him; therefore, no such letter is in evidence. It was
not established at the hearing that Bossier ever signed such a letter.
sions for the 8(a)(3) allegations of that case. (The syllabuses do
not include recitations of my ultimate conclusions for the
8(a)(1) allegations that are discussed in the discrimination
cases.) These syllabuses are designed only to assist the re-
viewer, and they are couched in most general terms. The full
and precise statements of the positions of the parties, and the
full and precise statements of my reasons for my findings and
conclusions, are contained in the texts that follow the sylla-
buses. (For the sake of brevity, I do not recite in each syllabus
the finding of a prima facie case; I do, of course, mention in the
syllabuses any failure of the General Counsel to present a prima
facie case.)
The law that determines the dispositions of the 8(a)(3) alle-
gations is stated in Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). The General Counsel has the initial burden of
establishing a prima facie case sufficient to support an infer-
ence that union or concerted activity that is protected by the Act
was a motivating factor in an employer’s action that is alleged
to constitute discrimination in violation of Section 8(a)(1) or
(3). Once this is established, the burden shifts to Respondent to
demonstrate that the alleged discriminatory conduct “would
have taken place even in the absence of the protected conduct.”
Wright Line, supra at 1089. To meet its burden under Wright
Line it is not enough for an employer to show that an employee
engaged in misconduct for which the employee could have
been discharged or otherwise disciplined. As the Board has
emphasized, the employer must demonstrate that it “would
have” discharged, or otherwise disciplined, the employee for
the misconduct in question. Structural Composites Industries,
304 NLRB 729, 730 (1991); the emphasis is the Board’s. Such
evidentiary demonstration must be by a preponderance of the
evidence,56 and, if it is not, a violation will be found.
Respondent’s animus came from the top of its organization.
In his June 1 speech to all employees and supervisors, Bossier
accused the Union of trying to harm Respondent, just as an-
other union had tried to harm another employer, PASCO. Boss-
ier further called all prounion employees “whiners, malcontents
and slackers,” and he told all employees and supervisors that
such employees “want to destroy Avondale,” simply because
they do support the Union. Although Bossier did not threaten
the employees with discharge or plant closure in all of this,
such a diatribe toward prounion employees, because they are
prounion employees, is raw evidence of animus toward the
employees’ protected activities.57 Supervisory presence for
Bossier’s June 1 speech was mandatory. Bossier’s diatribe of
that date was unlikely to have been forgotten by any supervisor
who was thereafter presented with an actual, or only putative,
disciplinary situation. Bossier’s June 1 speech, therefore, is
evidence of the animus with which the supervisors would have
approached disciplinary issues.
For all alleged discriminatees, the prima facie element of
animus is further proven in this case by the multitude of 8(a)(1)

56 Wright Line, supra at 1087; Roure Bertrand Dupont, Inc., 271
NLRB 443 (1984).
57 See, for example, Ready Mixed Concrete Co., 81 F.3d 1546, 1552
(10th Cir. 1992), as cited by Respondent on brief at page “Applicable
Legal Standards-51,” where a supervisor stated that union adherents
were “those scum-sucking, lazy, sorry-ass son of a bitches.” The court
concluded: “These statements alone sufficiently indicate antiunion
animus.”
AVONDALE INDUSTRIES 1105
violations that I find herein. In Monroe Mfg., Inc., 323 NLRB
24 (1997), the Board found animus sufficient to support an
inference of unlawful discrimination in the great number of
violations that “cover almost every type of unfair labor practice
that an employer may commit.” Such is the case here.58 Also,
there is undenied evidence that Respondent’s animus rises to
the level of that which would cause its supervisors to discharge
any employee who supported a union. Alleged discriminatee
Ramona Edwards testified that in November 1992, about 5
months before the Union’s organizational attempt had its overt
beginning, she delivered some papers to the office of then Pipe
Department Superintendent Ken Genter. While she was there,
Edwards asked Genter about a complaint that she had previ-
ously made. According to Edwards (vol. 17):

I said, “Well, you haven’t done anything about the
situation.”
He said, “Well, you might as well just leave matters
alone.”
I said, “Well, this is why I really feel Avondale needs
the Union, because you are just handling things unfair.”
And he told me, “I am going to ignore that remark. Do
you know that you can be fired immediately for that?”
I said, “No, sir, I did not.” And after that conversation
ended; that was it.

Genter was not called to deny this testimony by Edwards, and I
found the testimony credible. In Respondent’s supervisory
hierarchy, a departmental superintendent is just below the level
of a vice president. (Indeed, according to the testimony of cur-
rent Pipe Department Superintendent Frank Fradella, Genter
became a vice president on April 1, 1993.) This statement by
Genter, therefore, was about as strong a statement of animus as
Respondent could have made, and it was made by one of its
highest officials.
The categorical threat of discharge that Genter made to Ed-
wards was not made the subject of any allegation of the com-
plaint. (It occurred more than 6 months before the filing of any
of the charges.) There were, however, many other undenied
supervisory threats that were made subjects of 8(a)(1) allega-
tions of the complaints; those upon which I have found 8(a)(1)
violations are: (1) Alleged discriminatee Ancar testified, with-
out contradiction, that Paint Department Foreman Jay Pertuit
told him that employees who sign union authorization cards
“could get fired.” (2) Alleged discriminatee Andre Duhon testi-
fied, without contradiction, that Outside Machine Shop Fore-
man Jesus Rammel told him that, in the words of Duhon: “He
would bring me back to the night shift because I was a pretty
good worker, but I talked too much ‘union shit.’ If I would stop
talking union, he would bring me back to the night shift.” (3)
Alleged discriminatee Ronald Johnson testified, without con-
tradiction, that Sheet Metal Department Foreman Jesse Caston
told employees that their collective-bargaining efforts would be
futile because, even if they did select the Union as their repre-
sentative, they would be forced to strike and would be replaced.
(4) Alleged discriminatee Charles Bennett, current employee
James Lanham and former employee Donald McGee testified,
without contradiction, that Paint Department General Foreman
Tommy Bourgeois told employees that if the Union were se-
lected as their collective-bargaining representative the business

58 As noted in fn. 8, in a collateral proceeding, the Board has found
that Respondent has violated Sec. 8(a)(5).
would close. (5) As is undisputed, and as found above, Inside
Machine Shop Foreman Clifford Autin told retired employee
Adeline Plaissance that if the “wrong people” knew that she
was wearing prounion insignia it could “hurt” her; Autin further
told Plaisance that he was telling her this for her “own good.”
(6) Alleged discriminatee Michael Molaison testified, without
contradiction, that Electrical Department Foreman A. S. Russell
instructed him not to wear prounion insignia. (7) Alleged dis-
criminatee Barbara Marshall testified, without contradiction,
that Bourgeois told a group of paint department employees
during the preelection period that “if we get caught wearing the
[Union] sticker on our hardhat, that we would be fired.” I have
found infra that by each of these threats Respondent violated
Section 8(a)(1).
Of these seven undenied, violative threats to employees, it is
to be noted that the last three were premised on the employees’
wearing prounion insignia.59 The wearing of prounion insignia
was a common thread among many of the cases, and I have
found infra that there were, in fact, many other threats against
employees for wearing prounion insignia in addition to those
that went undenied.60 Therefore, as I will state many times,
Respondent’s animus toward employees who desired represen-
tation by the Union, and specifically Respondent’s animus
against employees who displayed prounion insignia, is estab-
lished throughout this decision.
Although not made the subjects of specific 8(a)(1) allega-
tions of the complaints, there is much other undenied testimo-
nial evidence of Respondent’s animus toward its employees
protected activities; to wit: (1) Employee Lawrence Arabie
testified, without contradiction, that Welding Department
Foreman Joe Alvarez told him that: (a) Respondent had a list of
employees who had signed union authorization cards and those
employees “will probably lose their jobs”; (b) two employees,
including alleged discriminatee Mark Cancienne, were support-
ing the Union and Alvarez had orders to “put pressure on
them”; (c) Arabie could lose his job for being friendly with
Cancienne; and (d) Cancienne was being transferred to the crew
of Welding Department Foreman Robert Ramirez because
General Foreman Ernest Foret Sr. wanted Ramirez to “wring
him out because of his union activities.” (2) Ramirez, himself,
admitted at trial that he told Arabie that: “They [unidentified]
stuck him [Cancienne] with my ass, wanting me to burn his ass,
and I never did.” (3) It is undenied that Electrical Department
General Foreman Kenny Danos told alleged discriminatee
Richard St. Blanc that “I am not trying to tell you what to do,
but I want you to know that word of you wearing this button
has reached Jerry Gerdes [the assistant superintendent of the
department].” (4) It is undenied that in the spring of 1994, Elec-
trical Department Foreman John Crutchfield admitted to current
employee Romalis Martin that he (Crutchfield) had removed a
“Union-Yes” sticker from Martin’s hardhat because “some

59 Also, as noted above, although not made subject of a specific
complaint allegation, current employee Boudreaux testified, without
contradiction, that Autin told him that he would be discharged for wear-
ing prounion insignia, albeit “[n]ot right away.”
60 A summary of findings to come is: Foremen Joseph DeNicola,
Walter Falgout, and Lonnie Sanchez, threatened employees with dis-
charge because they had worn prounion insignia; Foremen Timmy
Benoit and Nathan Howard threatened employees with losses of wage
increases because they had worn prounion insignia; and Foremen Jim
Grimes and Keith Folse threatened employees with unspecified repri-
sals because they wore prounion insignia.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1106
superintendents were asking who were wearing stickers and
who weren’t.”
Finally, although they were all contradicted by supervisory
testimony, I have found a host of other threats that were alleged
as 8(a)(1) violations in the four complaints. Therefore, there is
abundant evidence of Respondent’s animus against the pro-
tected activities of its employees.
In its arguments on brief that there is insufficient evidence of
animus sufficient to support any inferences of unlawful dis-
crimination, Respondent repeatedly cites Asarco, Inc. v. NLRB,
86 F.3d 1401, 1408 (5th Cir. 1996). In Asarco, the Fifth Circuit
refused to enforce a decision by the Board that the discharge of
one Halford was caused by antiunion animus. The court viewed
the Board’s decision as finding antiunion animus only in evi-
dence of disparate treatment of Halford. The court disagreed
with the Board’s finding of disparate treatment, and it refused
to enforce the Board’s order. Aside from the fact that I am im-
mediately bound by the Board’s decision in Asarco, there is in
this case, again, abundant evidence of antiunion animus that
exists independently from the evidence of disparate treatment
of some of the alleged discriminatees. Asarco, therefore, is not
controlling authority for disposition of the 8(a)(3) cases now
before the Board.
The prima facie element of knowledge of prounion sympa-
thies is denied in most of the disciplinary cases. In this deci-
sion, where I find that alleged discriminatees openly wore
prounion insignia at work during a given period of time, I con-
clude that supervisors who would have seen them at work dur-
ing those periods also would have seen the displayed prounion
insignia.
1. Employees discharged for multiple disciplinary offenses
a. Barbara Marshall
Barbara Marshall (vol. 17), a painter’s helper, was issued a
warning notice on October 1, and she was discharged on Octo-
ber 27, 1993.61 The second complaint, at paragraphs 124 and
130, respectively, alleges that by warning and discharging Mar-
shall, Respondent violated Section 8(a)(3). The General Coun-
sel contends that Respondent warned and discharged Marshall
because of her known union activities and expressions of sym-
pathy which included wearing a prounion sticker on her tote
bag, speaking up for the Union at one employer campaign
meeting, and refusing to give a negative response to a violative
interrogation. The complaint further alleges that, in violation of
Section 8(a)(1), Marshall was threatened, interrogated, and
instructed not to wear prounion insignia. Respondent denies
that the threat, interrogation, or instruction occurred. Respon-
dent further denies that its supervisors had knowledge of any
prounion sympathies that Marshall may have held at any rele-
vant time. Respondent further answers that Marshall was dis-
charged solely because she committed three disciplinary of-
fenses in a 12-month period including: (1) an offense of loafing
on April 22; (2) being out of her work area on October 1; and
(3) again being away from her work area when she should have
been working on October 27. The General Counsel does not
dispute the validity of the April 22 warning notice. The General
Counsel disputes the validity of the second warning notice by
contending that Marshall was not out of her work area on either
October 1 or 27, and the General Counsel contends that the

61 Unless otherwise indicated, all dates mentioned hereafter are in
1993.
accusations are pretexts for her discharge. Alternatively, the
General Counsel replies that, even given the fact that Marshall
had validly been issued one warning notice on April 22, and
even assuming the validity of the October 1 warning notice, and
even further assuming that Marshall engaged in another disci-
plinary offense on October 27, Marshall was nevertheless
treated disparately because other employees received three or
more warning notices in 12-month periods without being dis-
charged. Ultimately, I find that Marshall engaged in the disci-
plinary offenses of being out of her work area (loafing) on Oc-
tober 1 and 27, and I find and conclude that the issuance of the
warning notice of October 1 did not violate Section 8(a)(3). I
further find, however, that a significant number of other em-
ployees had been allowed to commit, within 12-month periods,
three or more disciplinary offenses without being discharged. I
therefore find and conclude that Marshall was treated dispar-
ately and that Marshall was discharged in violation of Section
8(a)(3).
As a painter’s helper, Marshall was directly supervised by
various line foremen including Charles Bourg Jr., Randall La-
borde, Eldon Pierre, Larry Danos, and Carl Mott Jr. All of these
foremen reported to General Foreman Tommy Bourgeois.
There is an issue of who made the decision to discharge Mar-
shall; ultimately, I agree with the General Counsel that it was
Bourgeois.
Marshall testified62 that beginning in April or May, and con-
tinuing through the date of her discharge, she maintained a
“Union-Yes” sticker on her tote bag that she took to work and
to each assignment. She attended several employer campaign
meetings, and she asked a question at one. Marshall testified
that in an employer campaign meeting Bourgeois predicted a
“landslide” vote against the Union; he further exhorted the
employees to “do the right thing.” According to Marshall, I
asked him, “Why is we meeting now; why is Al Bossier meet-
ing with us now and he never did before?” And he said that Al
Bossier was a busy man.”
The General Counsel offered this testimony as evidence of
knowledge of Marshall’s prounion sympathies by all supervi-
sors, including particularly Bourgeois, the supervisor who ulti-
mately made the decision to discharge Marshall. Bourgeois
(vol. 132) generally denied ever hearing Marshall make a
statement in favor of the Union, but he did not deny that Mar-
shall asked during one of his employer campaign meetings why
Bossier was then meeting with the employees. I found Mar-
shall’s testimony on the point credible.
Paragraphs 13 and 22 of the second complaint allege that
Respondent, by Bourg Jr., threatened employees with dis-
charge, solicited them to campaign against the Union, and in-

62 Respondent did not cross-examine Marshall after she had testified
for the General Counsel, and Respondent advanced no reason for not
doing so. In its case, however, Respondent attempted to cross-examine
Marshall’s direct testimony by calling her as its witness. A petition to
revoke Respondent’s subpoena to Marshall was duly filed by the
Charging Party. I ruled that, when it did not cross-examine Marshall
after she gave her direct testimony Respondent waived its right to later
cross-examine her on that testimony. Allowing Respondent to re-call
Marshall for cross-examination would have opened the door to re-call
of the over 300 other witnesses for the same purpose (or for “further”
cross-examination). I further agreed with the Charging Party’s conten-
tions that the other matters that Respondent advanced as reasons for
enforcing the subpoena to Marshall were irrelevant and unduly burden-
some to the record. I therefore revoked Respondent’s subpoena to Mar-
shall, and she did not testify again.
AVONDALE INDUSTRIES 1107
structed them not to wear prounion insignia.63 Marshall testified
that Bourg did such things, but Bourg credibly denied that tes-
timony. After Bourg testified (vol. 101), the General Counsel
moved to amend the complaint to allege, alternatively, that it
was (sometimes-supervisor) Scott Sutherland who committed
the violations specified in paragraphs 13 and 22. Sutherland is a
first cousin to Bourg, and the two men have similar physical
features. Marshall did not testify, however, that it was Suther-
land who made the remarks to her, and there is no basis, other
than speculation, for concluding that it was Sutherland (if any-
one) who made the remarks. I shall recommend dismissal of
paragraphs 13 and 22 of the second complaint.
Marshall further testified that, in an April or May employer
campaign meeting, Bourgeois told the employees of the paint
department

that the Union was giving us our union stickers and paper, and
if we get caught wearing the sticker on our hardhat, that we
would be fired, and if we get caught reading the paper, that
we was going to get fired.

Based on this testimony by Marshall, paragraph 20 of the sec-
ond complaint alleges that Bourgeois unlawfully threatened
employees with discharge.64 Bourgeois did not deny this testi-
mony by Marshall,65 and I found the testimony credible. I find
and conclude that Respondent, in violation of Section 8(a)(1),
by Bourgeois, in April or May 1993, threatened its employees
with discharge if they wore prounion insignia or were seen
reading prounion literature.
Marshall further testified that in April or May she was ap-
proached by Foreman Eldon Pierre at her work station. Accord-
ing to Marshall:

He asked me how I felt about the Union, and I told
him, “No comment.”
And he said, “You have nothing to say about it[?]”
And I told him, “No comment.”

Based on this testimony by Marshall, paragraph 21 of the sec-
ond complaint alleges that Pierre unlawfully interrogated an
employee.66 Pierre denied the testimony, but I found Marshall
credible on the point. I find and conclude that Respondent, in
violation of Section 8(a)(1), by Pierre, in April or May 1993,
interrogated its employees about their union membership, ac-
tivities, or desires.
(1) Marshall’s warning notice for loafing in restroom
Background
As noted, Marshall received a warning notice on April 22,
and the issuance of that warning notice is not alleged as a viola-
tion or otherwise contested by the General Counsel. Marshall’s
April 22 warning notice was initiated because Pierre witnessed
Marshall and another employee loafing when they should have
been cleaning their work areas between 3:20 and 3:30 p.m.

63 Respondent contends that these 8(a)(1) allegations are not sup-
ported by timely filed charges. For the reasons stated above in sec.
IV(A)(1) of this decision, I find and conclude that the allegations are
supported by the timely filed charge of discrimination against Marshall,
as well as the charge in Case 15–CA–12171–1.
64 Id.
65 Respondent’s statement on brief that Bourgeois did not make the
threat is not supported by the record.
66 See fn. 63.
Supervisors Bourgeois, Mott, and Pierre testified to an event
that is further relevant background to Marshall’s case: In Sep-
tember, when Marshall had been working on a ship, Mott and
Pierre stood at the railing of the ship and observed Marshall and
employee Martha Cox remaining in the area of the women’s
restroom on the ground, immediately below the ship, for about
45 minutes. Mott and Pierre decided to issue Cox and Marshall
warning notices, and they told Cox and Marshall of their deci-
sion as the two employees came up the gangway to the ship
after leaving the restroom area. Marshall and Cox protested that
they had been detained because they needed to investigate the
fact that a hole had been cut in the wall between the men’s side
and the women’s side of the restroom building. Pierre and Mott
reported the incident to General Foreman Bourgeois. The mat-
ter was investigated, and the hole was indeed found. Bourgeois
reversed the decision by Mott and Pierre to issue warning no-
tices to Cox and Marshall. Cox was not called by either party.
Although, on direct examination, Marshall generally denied
having been previously spoken to about spending excessive
amounts of time in the restroom, she was not called in rebuttal
to deny Respondent’s specific testimony about this September
event. I found the testimony of Mott, Pierre, and Bourgeois
credible on the point.
Marshall’s Conduct and the Issuance of the Warning
On October 1, Marshall worked on an LSD under Foreman
Randall Laborde. Marshall first testified that during the morn-
ing:

I asked Randall, could I go to the restroom. And he
had told me when I finished my work, that I could go at
11:00 o’clock.

Later in her direct examination, however, Marshall was asked
and she testified:

Q. [T]he October 1 write-up, when you got it, when
you spoke to Mr. Randall [Laborde] before leaving your
area, what exactly did you tell Mr. Randall?
A. I asked Randall if I could go to the bathroom at
11:00 o’clock when I finished my work.
Q. And what did Randall say?
A. He had told me yes.
Q. Was anything else said?
A. No.

Marshall testified that at 11 p.m., she left the ship and went to a
restroom on the ground. When she finished, she returned to the
ship by going up the gangway. As she did so, Marshall testi-
fied, Mott and Pierre were coming down. According to Mar-
shall:

[A]s I was coming up on the ship, they was coming down,
and Pierre asked me what I was doing, “playing in the rest-
room?.” And I . . . told him I wasn’t playing in the restroom,
and I was trying to explain to him what was going on, and he
said he was going to write me up for wasting time. And I told
him that I had got permission from Randall to go to the rest-
room.

Marshall testified that during the next day Bourgeois called her
into his office and asked her for her account of what had hap-
pened. She told Bourgeois that Laborde had given her permis-
sion to go to the restroom. Nevertheless, Marshall testified,
Bourgeois gave her a warning notice. As were all other Paint
Department warning notices that were received in evidence, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1108
warning notice that was issued to Marshall was drafted by a
clerical who entered the signature of Bourg as the “Department
Head.” Mott signed as the “Witness,” a circumstance that will
be explained below. The warning notice has checked the square
for notation of General Offense-4 of the Avondale Employees’
Guide (“Wasting time, loitering or leaving the working place
without permission”); the warning notice cites as the time and
date of the offense October 1 at “10:00 a.m. to 10:45 a.m.” The
“Reason for Warning” space was completed by entry of: “You
are hereby notified that you were wasting time, loitering or
leaving the working place without permission. Should you con-
tinue to do this, immediate disciplinary action will be taken.”
Marshall refused to sign the warning notice.
According to Marshall, after Bourgeois gave her the warning
notice, “[H]e just told me, write my comment over again on
another piece of paper, the reason.” (The reason for Marshall’s
words “over again” was made out in Respondent’s case, as
discussed, infra.) On direct examination Marshall was asked
and she testified:

Q. How long were you gone to the bathroom that day?
A. I was gone for at least ten minutes.

Marshall was not asked for how much longer than 10 minutes
she stayed away from her work area. Marshall acknowledged
that, when employees leave their working areas to go to the
restroom they are not supposed to be gone longer than 10 min-
utes.
Marshall’s Warning Notice—Respondent’s Evidence
Laborde (vol. 124) testified that during the morning of Octo-
ber 1, he walked through an area that was in sight of restrooms
that were on the helicopter deck of the LSD (as opposed to the
restrooms that were on the ground). He was stopped by Fore-
man Pierre who had been watching the helicopter deck rest-
rooms. Pierre told him that Marshall and Cox had been in the
helicopter deck women’s restroom for 20 minutes. Laborde
further testified that he stayed to watch the restroom, and it was
20 more minutes before Marshall and Cox came out together.
(Laborde testified that he could not remember if Pierre stayed
with him; Marshall was working under Laborde that day, not
Pierre.) Laborde testified that he confronted Marshall and Cox
and, “I told them they would be getting a citation for spending
40, 45 minutes in the bathroom.”
October 1 was a Friday. Laborde testified that at the end of
the day on October 4, he gave warning notices to Marshall and
Cox. (As explained infra, these were not the warning notices
that were ultimately received in evidence; the ones that Laborde
issued were destroyed before the hearing; I shall refer to the
warning notices that Laborde issued as the “original” warning
notices.) Both Marshall and Cox wrote comments in the space
provided on the original warning notices. Without Laborde’s
noticing it, both Marshall and Cox extended their comments on
the backs of the third copy of the triplicate, carbon, forms. La-
borde testified that he observed that the comments of Cox and
Marshall were “very similar,” although he could not remember
what they were. On October 5, Laborde presented the original
forms to Bourgeois and Mott (Laborde’s lead foreman). Bour-
geois said that the warning notices had been ruined by the em-
ployees’ having written on the backs of the third copies and that
they would have to be reissued.
Mott (vols. 126, 127) testified that he and Bourgeois agreed
that the original warning notices had to be reissued, not only
because Marshall and Cox had written on the backs of the third
(carbon) copies, but because the employees had written their
comments “word for word” the same. Mott testified that he and
Bourgeois called Marshall and Cox into Bourgeois’ office sepa-
rately and gave them the opportunity to rewrite their (own)
comments, and they did so. Mott then signed as the “Witness”
because Laborde was not present when the warning notices
were reissued.
Bourgeois also testified that Marshall and Cox had originally
written identical statements in the “Employee Comment”
spaces of the original warning notices. Bourgeois testified that
both of the original statements claimed that Marshall and Cox
were delayed at the restroom area by someone throwing water
on them from the men’s side of the restroom building. Bour-
geois testified that he did not believe this excuse because it was
too similar to the excuse that Marshall and Cox had offered in
September (when they had said that they had stayed in the rest-
room area for an extended amount of time because of the hole
that they found in the wall). When he gave Marshall and Cox
the opportunity to re-draft their comments, Cox essentially
repeated her original statement which was quite lengthy. (Cox’s
statement was received in evidence.) Marshall, however, en-
tered four conclusion-filled sentences that said nothing about
water being thrown.
Cox and Marshall were issued, and reissued, identical warn-
ing notices. The warning to Cox is not alleged as a violation.
There is no evidence that Respondent’s supervisors suspected
Cox of being a union supporter, and, according to this record,
no charge was filed on her behalf.
Marshall’s Warning Notice—Conclusions
The first issue is whether the General Counsel has presented
prima facie cases that Marshall’s warning notices and discharge
were imposed unlawfully. I find and conclude that, by the time
of the alleged discrimination against her, Respondent’s supervi-
sors had knowledge of Marshall’s prounion sympathies. All of
those who ever supervised Marshall in 1993 (Mott, Danos,
Laborde, Bourg, Pierre, and Bourgeois) testified that they had
no knowledge of any prounion sympathies that Marshall might
have held. All of those supervisors denied seeing Marshall
“wear” a “Union-Yes” sticker, but none was asked if they saw
one on her tote bag, as Marshall had testified. To the extent that
the supervisors’ testimony can be construed as denying having
seen the prounion sticker on her tote bag, I discredit it. I find
that Marshall openly displayed prounion insignia on her tote
bag as she worked. From this factor, alone, I conclude that all
supervisors who worked around Marshall knew of her prounion
sympathies, the supervisory denials notwithstanding. Also,
Marshall’s “no comment” response to Mott’s unlawful interro-
gation was obviously not the response that the supervisor
sought, and it necessarily constituted a declaration of, if not
prounion sympathies, at least a resistance to Respondent’s
countercampaign against the Union. (The response was further
made to one of the supervisors who participated in her ultimate
discharge.) Finally on this point, Marshall spoke up at an em-
ployer campaign meeting and asked Bourgeois, the supervisor
who made the decision to discharge her, why Bossier was then
making his above-discussed speeches. This was an expression
of cynicism revealing that Marshall thought Bossier would not
care about the employees if the Union were not then undertak-
ing an organizational attempt. This was a “point” that was made
in favor of the organizational attempt which Bossier was so
AVONDALE INDUSTRIES 1109
vehemently opposing. Such statements have been recognized
by the Board as expressions of prounion sympathies, even if the
employee’s comment did not expressly encourage support for a
union.67
Respondent’s animus toward the organizational attempt in
general, and Respondent’s animus toward those who wore
prounion insignia, in particular, is found throughout this deci-
sion. Respondent’s animus was made clear in the June 1 speech
by Respondent’s chief executive, Bossier, who labeled such
prounion employees as Marshall “whiners, malcontents and
slackers” who “want to destroy Avondale,” solely because they
did support the Union. Moreover, such prounion insignia as that
which Marshall displayed were often made the objects of
threats to employees, as I have found above, or as I do find
infra; to wit: (1) Sheet Metal Department Foreman Clifford
Autin told employee Adeline Plaisance that he could not be-
lieve that she would wear prounion insignia because, “Well, the
stickers on your hat. . . . If the wrong people got ahold of it, it
could hurt you. . . . I am just telling you this for your own
good.” (2) Sheet Metal Department Foreman Joe DeNicola told
employee Junius Duplantis that: “the guys walking around with
stickers and shirts on better hope that the Union gets in because
if it don’t, they are gone.” (3) Shipfitting Department Foreman
Walter Falgout told employee Richard Bell that, “Well, if you
like working for me and I was you I would take that sticker off
your hat because if you-know-who found out, he would have a
fit about the sticker.” (4) Electrical Department Foreman A. S.
Russell told alleged discriminatee Michael Molaison, who was
wearing a “Union-Yes” sticker on his hardhat, that “we wasn’t
supposed to have anything on our hardhats except the numeral
that represented what department we was in, our badge number
and our name on our hardhat.” (5) As is undenied, as late as the
spring of 1994, Electrical Department Foreman John Crutch-
field told employee Romalis Martin that he had removed the
“Union-Yes” sticker from the hardhat of Martin “because some
superintendents were asking who were wearing stickers and
who weren’t.” (6) As mentioned before, it is undenied that
Electrical Department General Foreman Kenny Danos told
alleged discriminatee Richard St. Blanc that “I am not trying to
tell you what to do, but I want you to know that word of you
wearing this button has reached Jerry Gerdes [the assistant
superintendent of the department].” (7) Electrical Department
Foreman James Grimes told alleged discriminatee Richard St.
Blanc that he was “fucking up” by wearing a union button. (8)
Shipfitting Department Foreman Keith Folse threatened alleged
discriminatee Robert Ruiz with unspecified reprisals because he
was wearing prounion insignia. (9) Sheetmetal Department
Foreman Nathan Howard, on May 13, 1994, instructed alleged
discriminatee Kenneth Patterson and another employee to re-
move union insignia from their clothing. (10) Howard further
told Patterson on May 18, 1994, that he would not receive a
wage increase because he had been seen wearing prounion
insignia. (11) Finally (and again), one of the undenied expres-
sions of such specific animus was made by Bourgeois, the su-
pervisor who made the decision to discharge Marshall; Bour-
geois told his employees that they would be discharged if they
were caught “wearing” a prounion sticker, which was a logical

67 See Neff-Perkins Co., 315 NLRB 1229 fn. 1 (1994), where the
Board states: “[W]e note that employee questions and comments con-
cerning working conditions raised at a group meeting called by an
employer come within the definition of concerted activity under Board
precedent.”
reason for Marshall’s placing her “Union-Yes” sticker on her
tote bag rather than “wearing” it. Therefore, the General Coun-
sel has presented prima facie cases that Marshall’s October 1
warning notice and her October 27 discharge were unlawfully
motivated, and the burden shifts to Respondent to demonstrate
by a preponderance of the evidence that it would have taken the
same action against Marshall even in the absence of her known
protected activities. Respondent’s defenses must therefore be
examined.
Marshall did much, too much, to establish that she was at her
work station at the times indicated by the October 1 warning
notice, 10 to 10:45 .a.m. First Marshall testified that Laborde
told her she could not go to the restroom until 11 a.m.; then she
testified that she asked if she could go to the restroom at
11a.m.. I do not believe either account. Moreover, Marshall did
not claim in her “Employee Comment” that she had received
permission from Laborde to be out of her work area in the first
place, a core element of the General Counsel’s theory of what
happened. (Marshall is not very articulate, but, if she really had
been given permission to leave her work area, and especially if
she had been given permission to leave precisely at 11 a.m., she
would have entered something to that effect in her comment.) I
believe that Marshall’s account of her being told to wait until
11 a.m. to leave the work area, and her account of having asked
to leave the work area at 11, both were fabrications designed
simply to defeat her warning notice’s designation of “10:00
a.m. to 10:45” as the time of the offense.
Marshall acknowledged that she stayed away for her work
area for “at least ten minutes.” I find that it was a great deal
more than 10 minutes, and Marshall acknowledged that stays
for more than 10 minutes were excessive. Moreover, although
Pierre did not testify about how long, if any, he watched Mar-
shall (or Cox, or Marshall and Cox) at the helicopter deck rest-
room, Laborde was credible in his testimony that he observed
their failure to come out of the helicopter deck restroom for
about 20 minutes. I credit Bourgeois’ testimony that Marshall
(along with Cox) offered the water-throwing excuse for being
in the restroom an excessive amount of time; as she did so,
Marshall necessarily acknowledged that she had stayed away
from her work for an excessive amount of time. I further find
that Bourgeois rejected the water-throwing excuse for Mar-
shall’s delay for a logical, legitimate reason: essentially the
same excuse had successfully been used for restroom dawdling
in September, and it was unbelievable in October.
On the basis of my credibility resolutions as entered above, I
shall recommend dismissal of paragraph 124 of the second
complaint.
(2) Marshall’s discharge for being absent from work area and
having prior warning notices
Marshall testified that at 2:05 p.m. on October 27, she left
her work area to empty trash and get some supplies; she also
went to the restroom. She returned to her work station, she
testified, at 2:20. She was met by Foreman Larry Danos who
accused her of being out of her work area for more than 40
minutes. Marshall explained what she had been doing and that
she could not have been gone that long. Danos told her to go
back to work.
Later in the afternoon, Danos and Mott (lead foreman over
Danos and several other line foremen who reported to Bour-
geois) approached Marshall and told her that she was dis-
charged. According to Marshall:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1110
[Danos] asked me to give me [him] my badge, asked
for my badge, and I asked him, “For what?”
And he said, “Because you are fired.”
And I asked him, “Why? What am I fired for?”
And he said, “Because you was out of your work
area.”

. . . .

I said, “Well, why are you coming at this time of day,
a whole hour after to fire me. You should have fired me on
the spot.”

Mott said that the reason why he took so long to fire—
to come back to fire me, [was] because Danos [had been]
looking for him [Mott] earlier and he [Danos] couldn’t
find him [Mott], and when he [finally] did find Mott, Da-
nos had told Mott what had happened, and then [Mott and
Danos] went down to the ground to Bourgeois’ office and
told Bourgeois what had went on. And they [Mott and Da-
nos] said Bourgeois told them to fire me, because he had
looked into my record, my past record, the citation, saying
there was—Bourgeois was looking into my record, and so
he told them to fire me because I had two prior citations.
And that one they was going to give me, [what would have
been] the third citation, was going to cause me to get fired.

(In fact, Marshall did not receive another warning notice, which
warning notice would have been her third in 12 months.) Danos
took Marshall’s badge at that point. Marshall went to Bour-
geois’ office. Further according to Marshall:

I asked Bourgeois if he had knew what had happened,
that I got fired, and he said, yes, he had [known] what
happened.
And he said himself that the reason why I got fired,
because he had looked—they [Danos and Mott] came and
told him what happened, and he had looked in to my files,
and he [Bourgeois] seen I had two citations, prior cita-
tions, being warned about wasting time or whatever, leav-
ing out of my work area.
And I asked him to see my file, and he had refused.
And so I told him I want my citation right on the spot. And
I didn’t get a citation saying why I got fired or anything.

Marshall then left the premises.
Marshall’s Discharge—Respondent’s Evidence
Danos (vols. 88, 89) testified that he timed Marshall on Oc-
tober 27, and she was out of her work area for over 40 minutes.
That much of Danos’ testimony was credible. Danos also testi-
fied that he, alone, decided to discharge Marshall. That part of
Danos’ testimony was incredible.
Danos testified that, after he sent Marshall back to work, he
conferred with Mott. Mott made a telephone call and found out
that Marshall had some number of warning notices that Danos
could not recall.68 Upon hearing that (forgotten) number from
Mott, Danos testified, he decided to discharge Marshall. As he
was cross-examined about this portion of his testimony, Danos

68 As will be seen, Respondent’s supervisors frequently testified that
they could not recall how many warning notices the alleged discrimina-
tees had before they were discharged. This testimony was consistent
with Respondent’s theory of the autonomy of first-line supervisors,
which theory was offered in an attempt to defeat the General Counsel’s
disparate treatment contentions, but it was also incredible.
would not look at the General Counsel; he would not take his
eyes from Respondent’s counsel. (Of course, all Respondent’s
counsel could do was look down at her papers.) In so doing,
Danos presented a most unfavorable impression. Danos had
been a supervisor for less than 30 days. As he testified on the
point, I did not believe that he, an extremely timorous man as
well as a novice supervisor, took it upon himself to discharge
anyone on his own. I do not believe it now. As seen elsewhere
in this decision, no other line foreman took it upon himself to
fire anyone on the basis of what he observed (or discharged an
employee “on the spot”) without the approval of higher super-
vision, as Danos professed to have done.69
On direct examination Mott stated flatly that Danos made the
decision to terminate Marshall. As Mott admitted on cross-
examination, however, his pretrial affidavit70 states:

We [Mott and Danos] went to Tommy Bourgeois, who
called the office and asked how many warnings were in
Barbara Marshall’s file. I understood from him [Bour-
geois] that he was told she already had two written warn-
ings for wasting time, loitering or leaving the work area in
the past several months. . . . Because this would be her
third written warning for that type of offense, Tommy said
she should be terminated instead of given another citation.

This discrepancy between Mott’s affidavit and his trial testi-
mony is serious; the mendacity that it reflects further fortifies
my conclusion that Mott was not a truthful witness and should
not be credited in his denial of his interrogation of Marshall.
On direct examination Bourgeois testified that Mott in-
formed him that Danos wanted to issue Marshall a warning
notice but Mott had stopped the process because he knew that
Marshall had some prior warning notices that should be consid-
ered. After hearing this from Mott, Bourgeois called the main
Paint Department office and found that Marshall had received
two warning notices during the preceding 12 months. Bour-
geois testified that he called Mott back and “recommended”
that Marshall be discharged. He was asked on direct examina-
tion and he testified:

Q. [By Ms. Canny]: Why did you give Mr. Mott an
okay or recommend that she be terminated on that day?
THE WITNESS: After checking her files and knowing
what was in her files and the previous problems that I had
with her and the offense she did for that date is why I fired
her—I recommended she be fired.

I find that Bourgeois’ first answer (“I fired her”) was the truth,
but I do not rely on this apparent Freudian slip alone. Mott
swore in his affidavit that Bourgeois made the decision to dis-
charge Marshall and I credit that affidavit.71 The cross-
examination of Bourgeois further made it clear that he, not
First-Level Supervisor Danos (nor Second-Level Supervisor

69 Foreman Mott discharged alleged discriminatees Vincente Her-
nandez and Donald Varnado without consulting with Bourgeois or
other superiors, but Mott was a lead foreman (and, in effect, an assis-
tant general foreman to Bourgeois) to whom several other foremen
reported.
70 Pretrial affidavits of supervisors were secured by Respondent for
purposes of defending against a request by the General Counsel under
Sec. 10(j) of the Act. (The district court denied that request, but, con-
trary to the assertion of Respondent on brief, page “Paint-74,” its find-
ings and conclusions are not binding on the Board.)
71 See Alvin J. Bart & Co., 236 NLRB 242 (1978).
AVONDALE INDUSTRIES 1111
Mott), made the decision to discharge Marshall; Bourgeois was
asked and he testified:

Q. So you got the information from the paint office
[clerk], and then did you make a decision in your own
mind at that point?
A. Yes, I did.
Q. And what was that decision?
A. That she should be terminated.
Q. And what did you do then?
A. I called Carl Mott back and told him that in my de-
cision, she should be terminated.
Q. And what happened then?
A. They did what they had to do on the ship.

“On the ship,” of course, was where Marshall was still at work
and where she was first told that she was discharged.
I find that Danos, Mott and Bourgeois reasonably believed
that Marshall had, on October 27, been out of her work area for
an excessive amount of time. I further find that the decision to
discharge Marshall, rather than issue her another warning no-
tice, was made by Bourgeois.
Marshall’s Discharge—Conclusions
I have held above that the General Counsel has presented a
prima facie case of unlawful discrimination for Marshall’s dis-
charge as well as her October 1 warning notice. At this point,
the defense that Respondent has advanced for the discharge
must be examined. On brief, Respondent states, “Ms. Marshall
was terminated for wasting time, loitering and being out of her
work area without permission, because that was her third of-
fense in 12 months.” This statement is consistent with Mar-
shall’s testimony about what she was told by Mott and Bour-
geois.
At one point on direct examination Bourgeois was asked and
he testified:

Q. [By Ms. Canny]: Other than the offenses that you
mentioned where you think [immediate] termination is ap-
propriate, such as sleeping or theft, is there a number of ci-
tations, in your view, that an employee should have before
termination becomes appropriate or a possibility?
A. I usually go by three, but with two citations they
could be terminated.

That is, even though counsel suggested to the witness that there
was a number of warning notices at which employees “should”
be discharged, Bourgeois refused to so testify. Bourgeois testi-
fied that before he and his foreman issue warning notices they
call the main paint department office and ask what other warn-
ing notices an employee has received within 12 months. Bour-
geois was specifically asked on direct examination and he testi-
fied:

Q. What instructions or guidelines, if any, do you give
your foremen about what to do once they know some-
body’s record?
A. If their folder has, for instance, three citations in it,
I tell them to look at it real hard because that is a critical
path right there, I think.

That is, Bourgeois testified that an employee is not even on the
“critical path” until he commits an offense after having re-
ceived three warning notices that had already been placed in his
file. Bourgeois further testified that even if an employee had
been issued a final warning, he would not necessarily be dis-
charged upon his third offense. As he further testified on direct
examination:

Q. What is a final warning?
A. Usually they will put final warning on a citation and
you tell that person the next time they commit that offense,
it is a possibility they could be fired.

This is another admission that employees are not always fired
upon their third infraction within a 12-month period. Further on
examination Bourgeois was shown sets of three and four warn-
ing notices that different employees had received. On cross-
examination Bourgeois was asked and he testified:

Q. [By Mr. Bensinger]: Do you recall when Ms. Canny
had the citations in front of you, the four citations and the
three citations and you testified to the effect that the per-
son could be discharged?
A. Yes.
Q. You know there is a difference between the word,
could, and would?
A. Yes.
Q. And you chose your word correctly?
A. Yes.

That is, Bourgeois testified that, even after an expressed “final”
warning, and even after a fourth warning notice within 12
months, an employee is not necessarily discharged; Bourgeois
testified only that the employee could be discharged.
Although Respondent’s discussion on brief is quite lengthy,
it fails to address two critical factors: (1) Bourgeois, who made
the decision to discharge Marshall, stated repeatedly that em-
ployees “could” be terminated for three offenses within 12
months, but he never stated that employees are always, or even
usually, discharged for three offenses within 12 months; and
Bourgeois did not even testify that there was some sort of rule
or policy that employees “should” be discharged after their
third offense.72 (2) During the 5-year period, 1990 through
1994, a significant number of employees received three, or
more, warning notices within 12 months, and those employees
were not discharged.
In fact, there is a great deal of evidence that employees are
not necessarily discharged after their third warning notice
within a 12-month period.73 As noted in section III(C) of this
decision, Respondent maintains a personnel card for each em-
ployee. Office employees are supposed to enter on the person-
nel cards the dates of each warning notice that each employee
receives. Elaine Colligan is a paralegal employee in the law
firm of counsel for the Charging Party. Colligan was supplied

72 As quoted above, an attorney for Respondent stated in a February
4, 1994 letter to the Region that employees who had received three
warning notices in a 12-month period “should” be discharged, but
Bourgeois never testified to the existence of a mandatory policy. More-
over, as seen in the case of alleged discriminatee Vincente Hernandez,
Mott flatly testified that the policy is not mandatory. As Mott defined
the practice of discharging employees after a third warning notice, “[i]t
depends on the employee.” Again, Mott is, in effect, Bourgeois’ assis-
tant general foreman.
73 The nonmandatory nature of the three-warning-notice rule is what
undoubtedly forced Respondent into attempting to prove the palpably
false proposition that Danos, not Bourgeois, discharged Marshall. Re-
spondent’s theory essentially is that supervisors such as Danos are
autonomous; they do not always discharge for three warning notices
within 12-month periods, but they can, and Danos chose to do so. This
theory of the case was not supported by the evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1112
with the subpoenaed personnel cards of over 7000 of Respon-
dent’s production and maintenance employees who were em-
ployed between January 1, 1990, and December 31, 1994. Col-
ligan (vol. 63) testified that she reviewed those cards to see if
they reflected that some employees had received three or more
warning notices within any 12-month periods without their
being discharged. Colligan selected the personnel cards of those
employees who had been issued three or more warning notices
within a 12-month period; she eliminated those which also
showed that the employee was terminated within a few days
following the date of the last warning notice. The General
Counsel’s Exhibit 364 is a listing that Colligan made from this
search. The exhibit is a table that shows the names and badge
numbers of employees who received three or more warning
notices in 12-month periods, but who were not discharged. As
received, the document contained 817 entries. Respondent,
however, showed that the personnel cards that it had furnished
pursuant to the General Counsel’s subpoena duces tecum had
accidentally included a few (nonunit) guards. Respondent fur-
ther brought out that one entry on the General Counsel’s Ex-
hibit 364 went beyond a 12-month period; additionally, on one
entry the underlying personnel card was obliterated, so that it
was not clear that at least three warning notices had been issued
to the employee within only a 12-month period. The Charging
Party provided electronic (floppy disk) copies of General
Counsel’s Exhibit 364 to all parties and to me. The General
Counsel’s Exhibit 364, as received in evidence, was not sorted
in any discernable way. I have used the disk-copy of the Gen-
eral Counsel’s Exhibit 364 that was furnished to me to create
appendix B of this decision. Appendix B is a copy of the Gen-
eral Counsel’s Exhibit 364, with the erroneously included em-
ployees eliminated and the remainder sorted, in descending
order, according to the number of warning notices that the em-
ployees received within various 12-month periods; i.e., the one
employee who received 10 warning notices in 12 months with-
out being discharged is listed first; the five employees who
received nine warning notices in 12-month periods are listed
next, and so on, down through all of those who were issued 3
warning notices in 12-month periods without being dis-
charged.74 In order to display the count of the total number
employees who received three or more warning notices in 12-
month periods without being discharged, I have added a col-
umn designated “Tot.” for total. In order to display the count of
employees who received 10, or 9, or 8, etc., warning notices, I
have added another column designated “#” on appendix B.
As appendix B and Colligan’s testimony demonstrate, the
subpoenaed personnel cards reflect that during the 1990–1994
period, there were 802 times that production and maintenance
employees received 3 or more warning notices in 12-month
periods without being discharged: 451 employees received 3
warning notices; 208 employees received 4 warning notices; 79
employees received 5 warning notices; 39 employees received
6 warning notices; 15 employees received 7 warning notices; 4
employees received 8 warning notices; 5 employees received 9
warning notices; and 1 employee received 10 warning notices
(all within 12-month periods and all without being discharged).

74 Of course, the floppy disks are not in evidence, just the hard-copy
of the G.C. Exh. 364. I feel constrained, however, to state for the bene-
fit of the parties (in case they have not already noticed it) that the disk
file has two tables that are contiguous. I combined the two tables before
sorting them as described.
In addition to the employees listed in Exhibit 364, the Gen-
eral Counsel introduced additional documentary evidence that
during the 1990–1994 period additional employees received
three or more warning notices within 12-month periods without
being discharged. That is, although the General Counsel sub-
poenaed all personnel cards of all employees, either all person-
nel cards were not produced for Colligan’s examination or the
personnel cards did not reflect (as they should have) all warn-
ing notices that had been issued to all employees in the relevant
period. This additional documentary evidence was received as
the General Counsel’s Exhibits 760 and higher during the re-
buttal stage of the General Counsel’s case. Attached as Appen-
dix C is a table that I have created that displays the badge num-
bers of those additional employees who received three, or more,
warning notices within 12-month periods. Eighty-eight of those
additional employees are shown by the General Counsel’s Ex-
hibits 770 (and higher) to have received three warning notices
within 12-month periods, but I do not include them in my
analysis because it was not shown that they were not dis-
charged on receiving their third warning notices, as opposed to
the situation for the employees listed in the General Counsel’s
Exhibit 364.75 Although the General Counsel failed to establish
that the employees who, according to General Counsel’s Exhib-
its 760 and higher, received only three warning notices within
12-month periods were not discharged, those who received four
or more warning notices within 12-month periods assuredly
were not discharged on the occasion their third warning notice
within a 12-month period. As appendix C reflects, 27 employ-
ees (in addition to those who are included on the G.C. Exh.
364) received 4 warning notices; 27 also received 5 warning
notices; 12 received 6 warning notices; 3 received 7 warning
notices; 6 received 8 warning notices; 1 received 9 warning
notices; 3 received 10 warning notices; 1 received 12 warning
notices; and 1 received 14 warning notices, all within 12-month
periods during the 1990–1994 period.

75 My exclusion of these 88 employees is somewhat problematical,
and possibly prejudicial to the General Counsel. Of the 47 of the al-
leged discriminatees who were discharged in this case, only 13 received
a warning notice for their last offense. (These were: Edward Arm-
strong, Dwight Ballard, Vernon Charles, Leroy Clark (who received a
warning notice only after he was discharged), Carlos Henriquez, Eddie
Johnson, John Joseph, Charles Kent, Kevin Lockett, Aubrey May,
Joseph Melton, Molaison, and Cox.) Marshall, herself, was told by
Mott and Danos that Bourgeois had said that she could not be issued
another warning notice because she already had two warning notices in
her file. As Bourgeois had obviously recognized, it is seemingly incon-
sistent to “warn” an employee who is being discharged.
AVONDALE INDUSTRIES 1113

A combination of appendices B and C shows:
Numbers of Employees Receiving Three or More Warning Notices in 12-Month Periods Without Being Discharged (1990–1994)

Number 3 4 5 6 7 8 9 10 11 12 13 14 Totron
Appendix B 451 208 79 39 15 4 5 1 0 0 0 0 802
Appendix C 27 27 12 3 6 1 3 0 1 0 1 81
Totals 451 235 106 51 18 10 6 4 0 1 0 1 883
That is, it has been shown by documentary evidence that dur-
ing the 5-year period of 1990 through 1994, a total of 883 pro-
duction and maintenance employees received three or more
warning notices in 12-month periods without being discharged.
Even in a unit of up to 4100 employees, this is a significant
amount. It is also significant that employees received up to 13
warning notices without being discharged. (This last assertion
assumes that the employee who received 14 warning notices in
a 12-month period was discharged upon issuance of the last.)
Episodic though it may be, testimony by Michael Simpson,
Respondent’s vice president of production, further demon-
strates that there is no consistent practice of discharging em-
ployees who accumulate three warning notices in 12-month
periods. As discussed in detail in the case of alleged discrimina-
tee Edward Armstrong, infra, Simpson testified that on June 21,
1993, when he felt that Armstrong had been wasting time, he
ordered Armstrong’s supervisors to his office. Simpson then
reviewed Armstrong’s file, himself, and found four warning
notices that had been issued within the preceding 12 months.
Simpson did not order Armstrong’s discharge. Simpson testi-
fied that he instructed the supervisors to discharge Armstrong
on his next offense rather than issue any more warning notices
to Armstrong. On July 13, however, the supervisors issued to
Armstrong his fifth warning notice for the 12-month period.
When he found out about the fifth warning notice, Simpson did
nothing. That is, Simpson, the penultimate supervisor of 4000
production and maintenance employees, had personal knowl-
edge of five warning notices having been issued to an employee
in a 12-month period, and still he did not order a discharge. In
all of his testimony about Armstrong’s case, Simpson did not
testify that he even mentioned to his subordinate supervisors76
any policy that employees should be discharged if they receive
three warning notices (or four, or five) within a 12-month pe-
riod.
Bourgeois, who made the decision to discharge Marshall,
never testified that all employees who commit three discipli-
nary violations during 12-month periods should be discharged.
And, certainly, Bourgeois never testified that all employees
who received three warning notices during 12-month periods
were always, or even usually, discharged. Bourgeois testified
that employees who received three or more warning notices in
12-month periods could be discharged, and, for that reason, he
decided that Marshall should be discharged. The law, however,
is that Respondent does not meet its burden under Wright Line

76 Ken Genter, then a vice president who was subordinate to Simp-
son, ordered Armstrong’s fifth warning notice, and Genter had been
present when Simpson had previously ordered that Armstrong receive
no more warning notices but be discharged on his next offense.
merely by advancing a reason which could justify the dis-
charge,77 and this is all that Bourgeois’ testimony tended to
prove. To the extent that Bourgeois’ testimony could be argued
to support the conclusion that Respondent has a consistently
enforced policy that employees are always discharged if they
have committed three disciplinary offenses within a 12-month
period, it is belied by the evidence that a substantial number of
employees had been allowed to accumulate three or more warn-
ing notices in 12-month periods without being discharged.78
That is, to the extent that Respondent can be said to have
presented some evidence that it would have discharged Mar-
shall even absent her prounion sympathies, the General Counsel
has shown that Marshall was treated disparately in comparison
to the 883 other employees who were issued three or more
warning notices in 12-month periods without being discharged.
Respondent therefore has not demonstrated by a preponderance
of the evidence that it would have discharged Marshall even
absent her prounion sympathies. I therefore find and conclude
that, by discharging Marshall Respondent violated Section
8(a)(3) and (1) of the Act.
b. Vincente Hernandez’ discharge for loafing and having prior
warning notices
Vincente Hernandez (vols. 18, 19) was employed as a painter
until he was discharged on May 13, 1994.79 The second com-
plaint, at paragraph 148, alleges that by discharging Hernandez
Respondent violated Section 8(a)(3). The General Counsel
contends that Respondent discharged Hernandez because of his
known union activities and expressions of sympathy which
included his wearing three “Union-Yes” stickers on his hardhat.
The General Counsel further alleges that, in violation of Sec-
tion 8(a)(1), Hernandez was instructed to remove the “Union-
Yes” stickers from his hardhat. Respondent denies that the

77 Structural Composite Industries, supra.
78 At the hearing Respondent argued that interdepartmental transfers
were one reason that employees who are listed on G.C. Exh. 364 could
accumulate three warning notices without being discharged; Respon-
dent suggested that employees’ warning notices from other departments
might go unnoticed. Respondent adduced no evidence that any of the
employees listed in G.C. Exh. 364 escaped discharge because some of
their warning notices were issued in different departments. Moreover,
aside from this defense’s being purely theoretical (as opposed to being
supported by record evidence), it is to be noted that Respondent de-
fends the discharges of alleged discriminatees Edward Armstrong,
Vernon Charles, and Audra Scott partly on the basis that they were
issued warning notices in departments other than those in which they
were working at the times of their discharges.
79 Unless otherwise indicated, all dates mentioned in Hernandez’
case are in 1994.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1114
instruction was given. Respondent further answers that the
supervisors who discharged Hernandez had no knowledge of
any prounion sympathies that Hernandez may have held at any
relevant time. Respondent further contends that Hernandez was
discharged solely because he committed the disciplinary of-
fense of loafing on May 13, and that offense was his third
within a twelve-month period. The General Counsel replies that
the loafing defense is a pretext because Hernandez paused in
his work on May 13 only to take a short break, something that
employees were regularly allowed to do. Alternatively, the
General Counsel replies that, even given the fact that Hernan-
dez had validly been issued two warning notices during the 12
months prior to May 13, and even assuming that on May 13 he
committed another disciplinary offense, Hernandez was treated
disparately because: (1) another employee engaged in the same
conduct at the same time but was not disciplined, and (2) a
great number of other employees committed three or more dis-
ciplinary offenses in 12-month periods without being dis-
charged. Ultimately, I find and conclude that Hernandez did
some loafing on May 13 (though not as much as Respondent
attributes to him); however, I further find that a significant
number of other employees had been allowed to commit, within
12-month periods, three or more disciplinary offenses without
being discharged. I therefore find that Hernandez was treated
disparately, and I conclude that Hernandez was discharged in
violation of Section 8(a)(3).
In the spring of 1994, Hernandez worked on the crews of
various paint department foremen, all of whom reported to
Lead Foreman Carl Mott Jr. and General Foreman Tommy
Bourgeois. Hernandez testified that in April he placed three
“Union-Yes” stickers on his hardhat, and he continued to wear
those stickers through the day of his discharge. Current em-
ployee Leonard Watkins (vol. 44) fully corroborated this testi-
mony; specifically, Watkins testified that he saw Hernandez
immediately before he was discharged and Hernandez was then
wearing the stickers on his hardhat. I found this testimony by
Hernandez and Watkins to be credible.
That Hernandez had received two valid warning notices dur-
ing the 12 months before May 13 is not disputed. Hernandez
acknowledged that on April 11 Mott saw him leaving the ship
upon which he was working a few minutes before the 3:30
whistle blew. Mott told Hernandez to return to the ship. Her-
nandez refused and kept walking away from the ship. Mott told
Hernandez that he was going to cause a warning notice to be
issued to Hernandez. Hernandez responded, “Why don’t you
give me three instead.” On cross-examination, Hernandez ac-
knowledged that, by his remark, he was challenging Mott to
issue him a third warning notice and discharge him under the
progressive disciplinary system of the Avondale Employees’
Guide. Hernandez further acknowledged that he additionally
told Mott that he wanted to be fired because he “wanted to get a
grant to go back to school.” (How being discharged would have
helped Hernandez get some grant was, of course, never asked.)
On April 13 Mott caused a warning notice to be issued to Her-
nandez over the April 11 incident. The notice checks the box
for, and quotes, the Avondale Employees’ Guide’s General
Offense-4 (“Wasting time, loitering or leaving the working
place without permission”).
Hernandez’ second warning notice was also initiated by
Mott. The warning notice, dated April 20, checks and quotes
General Offense-5 (“Quitting work . . . before the specified
time”). Although the validity of this warning notice is also not
in issue, an 8(a)(1) complaint allegation is based on the circum-
stances surrounding its delivery to Hernandez. Hernandez testi-
fied that while his then-Foreman T.—C. Bunch was presenting
the warning notice to him, Foreman Lonnie Sanchez ap-
proached. Hernandez was asked, and he testified:

Q. And what if anything happened when Mr. Sanchez
approached?
A. He hit me over the head on the hat with a thick roll
of brown paper. . . .
Q. And how many times, if any, did he strike you?
A. About two, three times.
Q. And what if anything was said?
A. He said, “Man, get those things off your hat.”
Q. And what if anything was on your hardhat at the
time?
A. The three union stickers.

Based on this testimony by Hernandez, paragraph 79 of the
second complaint alleges that Sanchez, “told an employee to
remove union insignia from his hardhat and struck him on his
hardhat with rolled-up paper.”80 Bunch (vol. 103) testified that
Sanchez was not present when he presented the warning notice
to Hernandez; Bunch denied that any such incident occurred in
his presence. Sanchez (vol. 101) also denied the testimony by
Hernandez, but he admitted that in the past he had playfully
tapped Hernandez and other employees on the head with rolls
of paper that he routinely carries around as he works.
I found Hernandez credible that Sanchez hit Hernandez with
the paper and told him to get the prounion insignia off his hard-
hat. I further found credible Sanchez’ testimony that he often
tapped employees on the head, but in a friendly way. Therefore,
I find that an unlawful instruction was given to Hernandez by
Sanchez, but there was no sort of unlawful (under the Act)
assault or battery involved, and Sanchez’ striking Hernandez is
not something for which an order should be issued. I conclude
that Respondent, in violation of Section 8(a)(1), by Sanchez, on
or about April 20, 1994, instructed an employee to remove
prounion insignia from his clothing.
Hernandez’ Discharge
On May 13, Hernandez was assigned to the crew of Foreman
Randall Laborde. On that date, the crews of Laborde and Pierre,
and at least one Cleanup During Construction Department
(CDC) employee, were assigned to sweep and shovel blasting
sand that lay on a deck of the ship. (Sandblasting on a ship, as
opposed to sandblasting on a unit that is on the ground, is usu-
ally done at night; this “sand,” which is really graphite, appar-
ently was the residue from one such operation.) During the
sweeping operation, several of the employees took a morning
break. Laborde and Pierre acknowledged that, during the morn-
ings, they allow their employees to take “informal” breaks of
about 10 minutes, but they testified that Hernandez took a much
longer break on May 13, as described infra.
Hernandez testified that about 9:40 a.m. he saw a group of
four or five employees taking a break in a shaded area. Hernan-
dez walked over to the shade and began talking to CDC em-
ployee Scott Blanchard (who did not testify). Hernandez credi-

80 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against Sanchez, as well as the
charge in Case 15–CA–12171–1.
AVONDALE INDUSTRIES

1115
bly testified that Blanchard was not wearing any prounion in-
signia. Hernandez testified that “after about two minutes” the
other employees went back to work, but he and Blanchard con-
tinued talking in the shade. Hernandez testified that he and
Blanchard had stayed in the shade “for about five minutes,”
when they were approached by Pierre. (Therefore, Hernandez
estimated the duration of his not working when Pierre ap-
proached as seven minutes.) Hernandez testified that when
Pierre first approached him and Blanchard, Pierre told them
both to go to the paint department office that was on board the
ship. Hernandez did not testify that he or Blanchard were asked
why they were being instructed to go to the office.
Hernandez testified that he went to the office, but he was not
asked if Blanchard did so. Hernandez testified that he waited in
the office for a few minutes; then Mott and Pierre arrived. Ac-
cording to Hernandez, Pierre told Mott that Hernandez had
been taking “a 30-minute break” during which he was talking
to Blanchard. Hernandez testified that he replied, “Thirty min-
utes? I have been doing my job, and it wasn’t no 30 minutes.”
Further according to Hernandez, “Then Carl Mott said, ‘Just let
me tell you one thing, Vince; give me your ID card [i.e. badge];
you are fired.”’ Hernandez did not testify that, during the inter-
view, he told Mott how much of a break that he had taken. Af-
ter collecting the tools that he owned, Hernandez left the prem-
ises. Respondent’s counsel acknowledged (vol. 47) that
Blanchard received no discipline over the events of May 13. On
cross-examination Hernandez denied that Pierre told him and
Blanchard to get to work before he ordered them to the office.
Watkins testified that on May 13 he saw Hernandez and
Blanchard standing and talking for about 2 minutes. He walked
toward them, to join them, but, as Watkins put it, “Well, I was
going to stop, but I heard Pierre tell Vince and Scott to meet
him at the paint office. . . . I just kept going.” Watkins testified
that he did not know if either Hernandez or Blanchard actually
went to the office as instructed.
Hernandez’ Discharge—Respondent’s Evidence
Pierre (vol. 114) testified that he saw Hernandez and
Blanchard standing and talking instead of working. Pierre was
asked and he testified:

Q. Did you ever say anything to Mr. Hernandez or Mr.
Blanchard?
A. I did. . . . I gave them a verbal warning.81 I told
them to go back to work because they had been taking a
break for too long. I told them to go back to work.
Q. Approximately how long had they been taking a
break at the time you spoke to them?
A. About 30 minutes. . . .
Q. [By Ms. Canny]: What, if anything, did either Mr.
Blanchard or Mr. Hernandez do after that?
A. Blanchard went back to work. Hernandez . . . con-
tinued to talk to people.

(It is to be noted that Pierre testified that Hernandez and
Blanchard “had been taking a break for too long”; he did not
testify that the employees were violating some rule by taking at
least some break. This is consistent with the preponderance of
the evidence that, although Respondent had no established
breaks other than lunch, it allowed employees short breaks in
the mornings, and sometimes during the afternoons.) Pierre

81 Throughout the hearing, witnesses (and even the lawyers) used the
word “verbal,” when “oral” was obviously meant.
testified that he then asked Laborde to be a witness to “the fact
that he (Hernandez) wasn’t doing his job.” Pierre stepped over
to Hernandez, where Hernandez was still talking to other em-
ployees, and told him to go to the office. When he, Mott and
Hernandez were in the office, further according to Pierre:

I told [Mott that] me and Randall Laborde observed
him (Hernandez) up there doing nothing; I had verbally
warned him, and he continued it, so I didn’t need him up
there because he wasn’t doing nothing. . . . [Mott] just
took his badge and told him he was terminated.

Laborde (vol. 124) testified that after he gave Hernandez and
the rest of his crew assignments to sweep sand, he saw Hernan-
dez standing and talking to Blanchard. On direct examination
Laborde was asked and he testified:

Q. Approximately how long did you see him talk to
Scott Blanchard?
A. Twenty minutes.
Q. Did you do anything at any point when you ob-
served him speaking to Scott Blanchard?
A. I believe Pierre went over there and had told him to
break it up. . . .
Q. And what did you see Scott do after Mr. Pierre went
to speak to them?
A. He left the area.
Q. And what did you see Vincente Hernandez do at
that point?
A. He fiddled around a little while and then went back
to doing the same thing he was doing before.
Q. And what was that?
A. Nothing.

On cross-examination Laborde was asked and he testified:

Q. And when you saw the man [Hernandez] standing
around talking, did you at first think he was taking one of
those informal breaks?
A. At first, yes.
Q. And how long is a reasonable time for an informal
break?
A. Ten minutes or so.
Q. And how long did you watch the man take an in-
formal break?
A. Approximately a half hour.
Q. And what, if anything, was he doing during that 30
minutes?
A. Talking.
Q. And who was he talking to, sir?
A. Well, I remember one person was Scott [Blanchard]
with CDC. That is the only person that stands out in my
memory.
Q. How long did he talk to Scott in CDC?
A. About ten minutes.

Mott (vol. 126) testified on direct examination that in the of-
fice, Pierre reported that “he had had enough of Vince. He was
standing there talking, and he wasn’t doing his job.” Mott testi-
fied that immediately upon that report, “I told Vince he was
terminated, and I took his badge.” Mott testified that he would
not have terminated Hernandez were it not for Hernandez’
warning notices of April 13 and 20.
On direct examination Mott was asked if he had knowledge
of Hernandez’ prounion sympathies before Hernandez’ April
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1116
20 warning notice, but he was not asked on direct examination
if he became aware of Hernandez’ prounion sympathies after
April 20. When asked on cross-examination, however, Mott
denied that he “ever” knew that Hernandez was a union sup-
porter. Further on cross-examination Mott denied that Pierre
had given him an estimate of how long it was that Hernandez
had been loafing.
After Hernandez was discharged and had left the plant, Pi-
erre and Laborde signed a written memorandum to Hernandez’
personnel file. (This was not a warning notice.) The memoran-
dum states:

5–13–94. General Offense #4. Employee was in-
structed to remove sand from 06 level. He was observed
for 30 minutes wasting time and loitering, stopping other
employees from working. [9:30]-10:00

At trial, however, neither Laborde nor Pierre testified that they
saw Hernandez stopping other employees from working.
Hernandez’ Discharge—Credibility Resolutions
and Conclusions
The first issue is whether the General Counsel has presented
a prima facie case that Hernandez’ discharge was imposed
unlawfully. I have found that, from sometime in April through
his discharge on May 13, Hernandez openly displayed three
“Union-Yes” stickers on his hardhat as he worked. The super-
visors who worked around him during that period are thus
charged with knowledge of Hernandez’ prounion sympathies.82
There is further evidence that, despite his narrow denial on
direct examination and his broad denial on cross-examination,
Mott knew of Hernandez’ prounion sympathies. Respondent
has an employee stock-option plan (ESOP). On May 6, Re-
spondent conducted a shareholders’ meeting at its administra-
tion building. Several employee-shareholders, wearing union T-
shirts, signed out and attended the meeting; Hernandez was one
of them. Before he was discharged, the Union filed a charge on
Hernandez’ behalf alleging harassment. The harassment charge
is not before me, but in a position letter addressed to the Re-
gional Office dated May 12 Respondent’s counsel acknowl-
edges that Mott knew that Hernandez wore a union T-shirt to
the May 6 meeting; counsel further stated that, from that
knowledge, Mott had concluded that Hernandez had “union
affiliation.” Counsel would not have made this admission if it
were not true. Mott testified falsely on this point.83 Mott knew
of Hernandez’ prounion sympathies at the time of the dis-
charge. The prima facie element of knowledge has thus been
established for Hernandez’ case.
Animus, in general, has been established through the proof
of the numerous 8(a)(1) violations that I have found herein.
Specific animus against those who wore prounion insignia has
also been established by the numerous threats made to employ-
ees who wore such insignia. For Hernandez’ case, the most
important among these is, of course, the undenied threat of his
general foreman, Bourgeois. As discriminatee Marshall testi-
fied, Bourgeois told the paint department employees that any

82 Both Sanchez and Bunch testified that they could not remember if
Hernandez wore prounion insignia on his hardhat. These nondenials
were incredible, and they fortify my decision to credit Hernandez’
testimony about what Sanchez did in Bunch’s presence.
83 Again, as noted in the case of discriminatee Marshall, Mott’s will-
ingness to lie under oath was more than demonstrated by his contradic-
tions of his pretrial affidavit.
employee caught wearing prounion insignia “would be fired.”
Animus specifically directed against Hernandez’ display of
prounion insignia was established by proof of Sanchez’ viola-
tive instruction to Hernandez to remove the three “Union-Yes”
stickers from his hardhat. Additionally, on cross-examination
Sanchez was asked and he testified:

Q. And not to say anything about Mr. Bourgeois but
you knew that if Mr. Hernandez wanted to make a good
impression on Mr. Bourgeois, the best thing to do was not
to wear union stickers?
A. I guess if you want to make a good impression.

Sanchez had apparently understood Bourgeois’ attitude of ani-
mus toward those who wore prounion insignia. Presumably all
other supervisors under Bourgeois, including Midlevel Supervi-
sor Mott, had also understood Bourgeois’ animus. The prima
facie elements of knowledge and animus having been estab-
lished by the General Counsel, the burden shifts to Respondent
to demonstrate by a preponderance of the evidence that it
would have taken the same action against Hernandez even in
the absence of his known protected activities. Respondent’s
defenses must therefore be examined.
The memorandum that Pierre and Laborde signed after Her-
nandez’ discharge states that Hernandez had loitered for 30
minutes, and it states that Hernandez had stopped other em-
ployees from working. Pierre and Laborde have conceded the
appropriateness of at least 10 minutes of Hernandez’ “loiter-
ing,” therefore, the estimate of 30 minutes of loitering in the
memorandum is, at least, an exaggeration. The memorandum’s
statement that Hernandez stopped other employees from work-
ing was simply false; if there had been any truth in that asser-
tion, Laborde or Pierre would have so testified. Nevertheless,
the memorandum was drafted postdischarge, and, therefore,
Mott could not have relied on the exaggerated, and false, state-
ments in it. Mott discharged Hernandez upon receiving Pierre’s
oral report, and, although the memorandum is a demonstration
of the lack of credibility of Pierre and Laborde, the oral report
to Mott, and its basis, is that which must be examined to deter-
mine the merits of the allegations based on Hernandez’ dis-
charge.
Although Mott and Pierre denied that Pierre told Mott how
long it was that Hernandez had been loafing, Hernandez testi-
fied that Pierre told Mott only that he (Hernandez) had taken “a
30-minute break.” That testimony was credible. Moreover, I
cannot believe that Pierre did not volunteer, or Mott did not ask
for, an estimate of how long it was that Hernandez had been
loafing. The questions therefore become whether Hernandez
took a 30-minute break, and, even if he did not, did Mott rea-
sonably believe that Hernandez had done so.
To decide this issue, I first address the question of whether,
at any time before he ordered Hernandez to the office for dis-
charge, Pierre told Hernandez and Blanchard, jointly, to get to
work. I find that he did. Even according to Hernandez’ account,
neither he nor Blanchard asked Pierre why they were being sent
to the office. There is an obvious reason for this; I find that
Hernandez knew that he was being ordered to go to the office
because he had previously been told to get back to work, and he
had not done so.
I do find that Pierre told Hernandez, individually, to go to the
office. Hernandez and Watkins testified that Pierre told Her-
nandez and Blanchard to go to the office, jointly. If credited,
this testimony would tend to prove that Blanchard and Hernan-
AVONDALE INDUSTRIES

1117
dez loafed, instead of sweeping, for exactly the same amount of
time, and it would tend to prove that they were not previously
instructed to get back to work. I do not, however, believe that
testimony. If that had happened, there would have been some
explanation from Hernandez of what Blanchard did when Her-
nandez went to the office. It is undisputed that Hernandez met
Mott and Pierre alone in the office, so Blanchard did not go
there. If Hernandez’ account had been true, he would have
remembered the point at which he and Blanchard parted com-
pany, but Hernandez was not asked.
I find that Mott did approach Blanchard and Hernandez and
tell them to get to work. When Pierre turned his back, Blanch-
ard “left the area,” as Laborde testified. Hernandez, who had
previously invited his supervisors to discharge him, did more
loafing. Then Pierre returned to Hernandez and ordered him to
go to the office. The fact issue, however, remains: For what
period of time, if any, did Hernandez and Blanchard loaf before
they were approached by Pierre?
Pierre and Laborde testified that Hernandez and Blanchard
took a 30-minute break; then, after Mott spoke to them, Her-
nandez took even more time to loaf. In view of his bad attitude
(including specifically his request to be discharged), I am
strongly suspicious that Hernandez had stayed on break for
more than the 7 minutes that he admits. On the other hand, I do
not believe that the supervisors stood and watched Hernandez
and Blanchard take a 30-minute break before one of them
spoke to the employees.84 No half-diligent supervisor would
allow an employee to overstay a break 5 minutes, much less 20,
without saying something to the employee, such as “get to
work.” Therefore, I find that Hernandez and Blanchard had
loafed for no more than 5 minutes beyond the (informal) 10-
minute break period when Pierre approached them.
Although Pierre testified that Blanchard got to work when he
told Blanchard and Hernandez to do so, Laborde testified that,
after Pierre spoke to Hernandez and Blanchard, Blanchard left
the area. Laborde would not have so testified if it had not been
true. Therefore, both Hernandez and Blanchard ignored Mott’s
instruction to get to work; Hernandez did so by continuing to
loaf, and Blanchard did so by leaving the area. Blanchard’s act,
which could only be characterized as insubordination, was ig-
nored by Pierre. However, Pierre told Hernandez to go to the
office where, as he admitted on cross-examination, Pierre rec-
ommended the discharge of Hernandez. Therefore, Blanchard
and Hernandez engaged in equivalent conduct at the same time,
but they were treated differently. Mott did not testify that he
treated Hernandez and Blanchard differently because of Her-
nandez’ prior request that he be discharged. The only distin-
guishing factor that remained was that Hernandez had been
wearing prounion insignia, and Blanchard had not.
Hernandez had been told to get rid of the “Union-Yes” stick-
ers on his hardhat by Sanchez, but he had not done it. In fact, he
added the T-shirt to his regalia and wore it to the ESOP meet-
ing of May 6, as Respondent’s counsel admitted by letter.
There was no reason for Mott’s denying such knowledge, ex-
cept that Mott was attempting to hide the real reason for the
discharge which came exactly 1 week after the ESOP meeting.
Hernandez’ wearing of the T-shirt was simply too much for

84 The unreliable nature of the supervisory testimony is demonstrated
by Laborde’s first testifying that he saw Hernandez talking to Blanch-
ard for 20 minutes, and then his reduction of that estimate on cross-
examination to 10 minutes.
Mott, who discharged Hernandez for doing so, using as a puta-
tive basis the palpably incredible report of Pierre that he had
watched Hernandez take a 30-minute break. Therefore, a case
of disparate treatment is made out by comparing the treatment
of Hernandez with that of Blanchard, as the General Counsel
contends.
Moreover, Hernandez’ treatment is not to be measured only
against Blanchard’s. Mott testified that Hernandez was dis-
charged because his offense of May 13 was Hernandez’ third
within 12 months. However, Mott, like Bourgeois, also testified
that employees are not always discharged upon the commission
of their third offense within 12 months. Mott was asked on
direct examination and he testified:

Q. Is it mandatory to terminate an employee who
commits an offense and has two prior citations in the last
year?
A. No, it is not.
Q. What do you consider in terms of whether or not an
employee should be terminated in those circumstances,
where they have two prior written citations in the past
year, and they commit another offense?
A. It depends on the employee.

That is, as Bourgeois did in Marshall’s case, Mott testified only
that employees “could” be discharged upon their third offense.
He did not testify that there was an immutable rule, or even a
usual rule, that employees are to be discharged upon their third
offense under the Avondale Employees’ Guide within 12
months. Mott testified “[i]t depends on the employee.” More-
over, as held in Wright Line and Structural Composite Indus-
tries, supra, advancement of a reason for which an employee
“could” be discharged is not a defense to a prima facie case
such as that which was presented for Hernandez. Respondent
must have come forward with evidence that Hernandez “would
have” been discharged for his third offense within 12 months
even in the absence of his union activities. This evidence, of
course, was impossible to produce because, as was shown in
the case of discriminatee Marshall, during the 1990–1994 pe-
riod 883 other employees received three warning notices within
12-month periods without being discharged.85 I therefore find
and conclude that Hernandez was discharged in violation of
Section 8(a)(3).
c. Donald Varnado’s discharge for loafing and having prior
warning notices
Donald Varnado (vols. 15, 16, 128, 129, and 149) was em-
ployed as a painter until he was discharged on April 7, 1993.
The second complaint, at paragraph 82, alleges that by dis-
charging Varnado Respondent violated Section 8(a)(3). The
General Counsel contends that Respondent discharged Varnado
because of his known union activities and expressions of sym-
pathy which included his wearing prounion insignia, displaying
union authorization cards in the presence of supervisors, and
speaking up to supervisors on behalf of the Union at employer
campaign meetings. The General Counsel further alleges that,
in violation of Section 8(a)(1), Varnado was twice threatened
and once interrogated. Respondent denies that the threats and
interrogation occurred. Respondent further denies that its su-
pervisors had knowledge of any prounion sympathies that Var-

85 Knowledge of the existence of such evidence is undoubtedly why
Bourgeois and Mott did not testify that any employee who received
three warning notices within a 12-month period would be discharged.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1118
nado may have held at any relevant time. On brief, Respondent
further answers that Varnado was discharged solely because he
committed the Immediate Discharge Offense of “deliberate
loafing” under the Avondale Employees’ Guide. The testimony
of Respondent’s supervisors, however, was that Varnado was
discharged for committing three general offenses under the
Avondale Employees’ Guide. Although not disputing the valid-
ity of the two prior warning notices, the General Counsel con-
tends that Varnado was not loafing on April 7, and, to the ex-
tent Varnado was idle at any time on that date, his idleness was
attributable to medicine that Varnado had been given by the
Respondent’s medical department, as his supervisors knew
before Varnado was discharged. Alternatively, the General
Counsel answers that, even given the fact that Varnado had
validly been issued two warning notices during the 12 months
before April 7, and further assuming that he committed another
disciplinary offense on April 7, Varnado was treated disparately
because other employees had been issued three or more warn-
ing notices in 12-month periods and they were not discharged.
Ultimately, I find that Varnado committed the General Offense
of wasting time or loitering on April 7; however, I further find
that a significant number of other employees had been allowed
to commit, within 12-month periods, three or more disciplinary
offenses without being discharged. I therefore find that Var-
nado was treated disparately and that he was discharged in
violation of Section 8(a)(3).
Varnado testified that he began wearing two “Union-Yes”
stickers on his hardhat at the beginning of the organizational
attempt in March, and he testified that he continued to wear
those stickers through the date of his discharge. Current em-
ployee Lilly Dumas (vol. 44), former employee Donald McGee
(vol. 58), and alleged discriminatee Joe Simpson (vol. 18) cor-
roborated this testimony. I find that Varnado did wear the
prounion insignia as he testified.
Varnado, whose shop nickname was “Rambo,” testified that
during the week of March 8, Lead Foreman Carl Mott Jr. called
the members of his crew together and, from the group, Mott
singled out Varnado and asked him how he felt about the or-
ganizational attempt that had just begun. Varnado testified that
he told Mott that the Union would keep the employees from
being harassed and being issued warning notices and that the
Union would get the employees wage increases and do some-
thing about pay scales that some employees thought were ineq-
uitable. Further according to Varnado:

He said, Well, Rambo, I simply wouldn’t vote a union
in here because of—and lose—he said, Lose my job, my
home and my car because if the Union gets in here, that—
if we had no blasting to do, he would have to send us
home because the Union wouldn’t let us do any other
crafts’ work.

This is an exact reproduction of the transcript. As it seemed to
me at the time, and as it appears in print, Varnado was testify-
ing that Mott was saying that Mott would lose his (own) job,
home and car if the Union were selected as the employees’
collective-bargaining representative. Based on this testimony,
however, paragraphs 7(a) and (b) of the second complaint al-
lege that Respondent, by Mott, (a) interrogated its employees,
and (b) “threatened its employees with discharge and the loss of
their real or personal property if they selected the Union as their
bargaining representative.”86
Mott acknowledged that he once conducted an employer
campaign meeting at which Varnado spoke up and asked about
the two-tier wage system that Respondent then had in effect.
Mott denied, however, that Varnado stated that he favored the
Union, or that he asked Varnado how he felt about the Union,
or that he (Mott) stated in any meeting that, if the Union were
selected, he would lose his job, his house or, his car. In this last
denial Mott was not attempting to refute the allegation that he
threatened the employees with loss of their jobs. He was, how-
ever, properly addressing the testimony by Varnado. I believe
Mott’s testimony that he did not tell the employees that he
would lose his (own) job, house and car, and that is all that
Varnado’s testimony can reasonably be made out to suggest. I
further do not believe that Mott singled out Varnado from a
group to ask his opinion; Varnado did not sound believable at
the time he gave that testimony, and I remain in that view. I
shall recommend dismissal of these allegations of the com-
plaint.87
Varnado also testified that during a morning between March
8 and 11:

I check in and sign the MCR, and I was bending down
to get my tools and all. And as I was getting ready to walk
off, Carl Mott, Jr. asked me what I was going to do with
all those Union cards I had in my back pocket. . . . I
didn’t respond to his question. I just went on to my job
site.

The General Counsel relies on this testimony as further evi-
dence of Varnado’s prounion sympathies. Mott denied seeing
Varnado with union authorization cards or making any such
statement to Varnado, but I found Varnado credible on the
point.
Varnado further testified that on March 11, Paint Department
General Foreman Tommy Bourgeois conducted a meeting of
the crews of Foremen Mott and Randall Laborde. According to
Varnado:

This meeting started by Mr. Bourgeois passing out
these guarantee cards for the Union bosses to sign and
bring them back to him. . . . Well, he said to—when the
Union guys signed these cards, to bring them back to him.
And then he also stated that with the Union getting in here,
we would lose contracts and Texaco [a customer of Re-
spondent] would go elsewhere, and that if the Union was
in the yard and if they had no blasting to do, we couldn’t
do [the work of] any other crafts, and he would have to
send us home or lay us off.

As mentioned above in the discussions of paragraph 74 of the
second complaint, Reynard Smith was employed in the paint
department from 1982 to July 1993; he was twice discharged,
but neither discharge is alleged as violative. Smith testified
(vol. 48) consistently with Varnado about Bourgeois’ March 11

86 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against Varnado, as well as the
charge in Case 15–CA–12171–1.
87 No separate allegation is made over Mott’s (undenied) statement
that, if the Union were successful in the organizational attempt, em-
ployees would be sent home rather than given indoor work.
AVONDALE INDUSTRIES

1119
remarks. Varnado and Smith testified that, theretofore, when
work was slack, they would be given assignments in other areas
rather than be sent home. (On cross-examination, Bourgeois
agreed that such was Respondent’s practice.)
Based on this testimony by Varnado and Smith, paragraph 8
of the second complaint alleges that Respondent, by Bourgeois,
“threatened its employees with discharge and layoffs if they
selected the Union as their bargaining representative.”88 When
he testified (vol. 132), Bourgeois quibbled with the testimony
by Smith and Varnado about the setting of the employer cam-
paign meetings that he conducted, but he did not deny the tes-
timony by Varnado and Smith that he told employees that Re-
spondent would send employees home when work was slack if
the Union was selected. I found the employees’ testimony
credible. I conclude that, as alleged, Respondent, by Bourgeois,
on March 11, 1993, threatened its employees with layoffs (but
not discharge) if they selected the Union as their collective-
bargaining representative.89
Varnado testified that following the March 11 meeting, he
was approached by Bourgeois who told Varnado that he was to
transfer to the night shift. (Varnado protested, and, eventually,
he did not have to transfer.) Varnado testified that during his
March 11 exchange with Bourgeois:

Well, I told him okay; Well, if I did [transfer to the
night shift], from now on, I—when they hold meetings for
us to tell us not to vote for the Union, that I didn’t want to
hear it or attend any of them—any more of the meetings.

Smith testified that he overheard this exchange between Var-
nado and Bourgeois, including Varnado’s complaint about not
wanting to attend any more employer campaign meetings.
Bourgeois did not deny this testimony, and I found it credible.
Background of Varnado’s Discharge
That Varnado had received two valid warning notices in the
12-month period before April 7 is not disputed. On October 27,
1992, Varnado was issued a warning notice for, as it states:

Sleeping or deliberate loafing during hours of work.
Foreman (W401) [Luther Bishop] observed employee
sleeping on the job. No witnesses to verify employee’s ac-
tion. Verbal warning and written citation was given. Vio-
lation of any other Company rules or regulations will re-
sult in your termination.—Final Warning—

No general offense or major offense box numbers are checked
on the warning notice. “Sleeping or deliberate loafing” is Im-
mediate Discharge Offense-2 under the Avondale Employees’
Guide. Foreman Richard Sahuque testified (vol. 101) that he
issued this warning notice to Varnado on the report of Bishop.
Sahuque testified that Varnado was not discharged on October
27 solely because Bishop reported to him that Bishop could
find no other witnesses to Varnado’s sleeping. (The necessity
of a witness for discharges based on sleeping is discussed infra,
where other alleged discriminatees were discharged for that
offense.) Varnado was issued a second (valid) warning notice
on December 7, 1992. This second warning notice was for fail-

88 See fn. 86.
89 The fact that Mott told the employees the same thing fortifies my
conclusion that Varnado and Smith were testifying truthfully.
ing to report to work on a Sunday, a day that his foreman’s
crew was working an irregular workweek.90
Varnado testified that while working on March 22 or 23 he
injured his back. He went to the medical department where he
was given a supply of Parafon Forte, a muscle relaxant. Var-
nado was treated with ice packs, fitted with a back brace, and
sent back to work. Respondent’s in-house physician, Dr. Ma-
bey,91 told him to wear the brace at all times when working and
to begin coming for treatment the next day. Varnado returned to
his job which was, at the time, power-tooling. Power-tooling is
the operation of a power-chisel to remove rust and welding
detritus-hard, heavy work. Varnado complained to his foremen
that the job was aggravating his injury. Varnado went back to
the medical department where Dr. Mabey told him to go home
to rest. Varnado did not come to work again until April 6. Var-
nado testified that he lost the supply of Parafon Forte that he
had been furnished on March 22, and that he never took any of
it.
Varnado further testified that when he reported to work on
April 6, he was again assigned to the job of power-tooling.
Varnado asked if he could have a light-duty job, but Bourgeois,
and Laborde, told him that there were no light-duty jobs avail-
able.
On April 6, after first being denied light-duty work by Bour-
geois, Varnado went back to the medical department and com-
plained; he was then given a light-duty slip. Varnado testified
that the slip stated that he should be required to perform “No
lifting, climbing or bending.” All of Varnado’s records were
produced by Respondent pursuant to subpoena; no such light-
duty slip was offered by the General Counsel. An April 6 light-
duty slip for Varnado was produced in Respondent’s case; it
states only that, if possible, Varnado should be given jobs that
“restrict repetitive climbing.” When called by Respondent in its
case, Varnado denied that the light-duty slip that had been pro-
duced by Respondent was the one that he had received. I have
no reason, however, to believe that (1) copies of the light-duty
slip that was described by Varnado were withheld by Respon-
dent; or (2) the April 6 light-duty slip that was produced by
Respondent was a fabrication. I discredit Varnado’s testimony
that he was given a light-duty slip that prohibited “lifting,
climbing or bending.”
Varnado’s Discharge
On the morning of April 7, Varnado reported to the first aid
department for therapy, as had been scheduled. He testified that
he was again given a supply of the muscle relaxant Parafon
Forte. He took one immediately; then the nurse told him that he
was supposed to take it only with food. Varnado testified that
he had eaten nothing that morning. Although Parafon Forte
would make one drowsy, especially on an empty stomach, Var-
nado went back to his work area where Foreman Eldon Pierre
assigned him to sweeping duties. Varnado did not then tell
Pierre or any other of his supervisors that he had taken a drug
that could affect his performance.

90 Although the October 27, 1992 warning notice had been marked
as “Final,” and although it contained the categorical warning that viola-
tion of any other rules by Varnado would result in his termination,
Varnado was not discharged upon his December 7 offense. As will be
seen, the noneffectiveness of “Final” warning notices was quite com-
mon.
91 The transcript, where it spells Dr. Mabey’s name in various other
ways, is corrected.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1120
Varnado testified that he was sent to the main deck of a ship
and assigned to sweep “sand” (actually, graphite granules and
the detritus from sandblasting). Varnado was supposed to do
this with two other employees, Lilly Dumas, who testified, and
another woman whose name Varnado could not remember
(herein called Doe). Varnado testified that he, Dumas and Doe
were assigned to sweep an area on the main deck of a ship be-
low a point where other employees were sandblasting that day.
Varnado testified that he swept and the women carried off the
buckets of sand. Varnado testified that he did not carry off the
buckets because, “I had restricted duties when I was working
with the ladies.” As noted, Varnado’s restrictions actually did
not include one against lifting. Varnado testified that he, Dumas
and Doe were required to wait until the sandblasters above
them stopped to move their equipment before they could do any
sweeping. Between those times, the sweepers waited.
Varnado testified that twice that morning he was required to
leave the area to seek out a toilet; Varnado testified that he left
his work area a third time to go to a restroom “[b]ecause the
medication I had took, it started affecting me; light-headed and
wooziness.” Varnado acknowledged on direct examination that
for 10 minutes that morning, he conversed with passing em-
ployee Lumas Rose; Varnado denied, however, that he could
have been sweeping at that point because of the sandblasting
that was then being conducted.
Varnado testified that after his third trip to the restroom he
was approached by Lead Foreman Mott. According to Varnado,
Mott said: “Rambo, when are you going to finish this area; You
have been walking back and forth in this area all morning; I
think I am going to fire you; Give me your badge.” Varnado
was, in fact, discharged at that point. Varnado further testified
that, as he was leaving the plant, he saw General Foreman
Bourgeois; he appealed to Bourgeois to reinstate him, but
Bourgeois said that there was nothing that he could do.
In addition to testifying about Varnado’s wearing prounion
insignia, employee Dumas also testified about the work that
Varnado had done on April 7. Dumas testified that while she,
Varnado and Doe were sweeping there was “steady” sandblast-
ing going on. She also testified that Varnado was constantly
working that morning before Mott approached and discharged
Varnado.
Varnado’s Discharge—Respondent’s Evidence
Mott, Laborde, and Pierre testified that blasting was not be-
ing performed on April 7; the sand that Varnado was required
to sweep was left over from blasting done the night before
(when blasting is usually done on the ships because of its obvi-
ous effects on other operations). Pierre testified (vol. 114) that
when he first assigned Varnado to sweep, Varnado stood
around and talked to passers-by, despite Pierre’s admonitions to
get to work. Pierre moved Varnado to another part of the deck.
Mott testified that, three times, he saw Varnado standing
around in the area of the deck to which Pierre had moved Var-
nado. Mott testified that he spoke to Varnado on the first two
occasions and told him to get to work. Then Pierre reported to
Mott that he had previously moved Varnado to the area in
which Mott had seen Varnado because Varnado had been loaf-
ing. Mott testified that, after that report from Pierre, he again
saw Varnado standing around a third time. At that point, Mott
testified, he decided to discharge Varnado. Mott testified that
he decided to discharge Varnado: “Because of his previous
record, and he wasn’t doing nothing that day.” By “his previous
record” Mott testified, he meant the warning notices that he
knew to have been in Varnado’s file. Mott testified that he was
not sure how many notices were in Varnado’s file, but he
thought that there were three.
Mott testified that, when he approached Varnado and told
him that he was discharged, Varnado “told me he couldn’t be
terminated, because he was on medication through First Aid.”
Mott called Bourgeois and reported to Bourgeois what Varnado
had said about medication. Bourgeois told Mott to call the secu-
rity department and have Varnado escorted from the premises.
Mott did so. Mott further testified that when Security personnel
came to get Varnado, Varnado then began to display the symp-
toms of light-headiness, but Varnado had not done so before.
Mott was asked on cross-examination and he testified:

Q. In regard to these three prior citations you are sure
at the time that you probably knew about them, do you
have any estimate as to how old you felt those citations
were when you fired Rambo?
A. They were less than a year old.
Q. How do you know that, sir?
A. Because I couldn’t have fired him if he didn’t have
two previous citations.
Q. When you say that you could not have fired Rambo
if he did not have two previous citations, why did you say
that?
A. Unless he—I didn’t mean that I couldn’t have fired
him. I needed to check his record, and as long as he has
two citations; on the third citation, you can be terminated.

Mott was further asked on cross-examination and he testified:

Q. You are aware that there are immediate discharge
offenses at the shipyard?
A. Yes, I am.
Q. Was Rambo engaged in an immediate discharge of-
fense on the day he was fired?
A. No.
Q. Are you aware that there is under the general of-
fense category a rule about wasting time?
A. Yes, I am.
Q. Is that what Rambo was doing on the day he was
fired, wasting time, under general offense 4?
A. Yes, if he was caught doing nothing, yes.

On cross-examination, Bourgeois was asked why, when Var-
nado appealed to be reinstated, he had not revoked Mott’s deci-
sion; Bourgeois replied: “The previous problems he had and
citations he had, and the offense he committed that day.”
Varnado’s Discharge—Credibility Resolutions
and Conclusions
The first issue is whether the General Counsel has presented
a prima facie case that Varnado’s discharge was imposed
unlawfully. I credit the corroborated testimony of Varnado that
he continuously wore prounion insignia on his hardhat from the
start of the organizational attempt until he was discharged; I
further credit his testimony that he once told Bourgeois that he
did not wish to attend any more employer campaign meetings. I
further have found that Mott once asked Varnado what he was
going to do with the union authorization cards that he had in his
back pocket. In summary, I find that Respondent’s supervisors
had knowledge of Varnado’s prounion sympathies at the time
of his discharge. Animus toward those employees who sup-
ported the Union, and specific animus toward those who wore
AVONDALE INDUSTRIES

1121
prounion insignia, is established throughout this decision. (To
be remembered especially is the undenied testimony of dis-
criminatee Marshall that Bourgeois, Mott’s general foreman,
told her group that those employees who wore prounion insig-
nia would be discharged.) I therefore find that a prima facie
unlawful case of discrimination against Varnado has been es-
tablished by the General Counsel, and the burden shifts to Re-
spondent to demonstrate by a preponderance of the evidence
that it would have taken the same action against Varnado even
in the absence of his known protected activities. Respondent’s
defenses must therefore be examined.
I credit the testimony of Mott, Laborde, and Pierre that sand-
blasting was not being conducted at the same time that the em-
ployees were sweeping. Aside from the logical inconsistency of
a requirement that sweeping be done while the sanding detritus
was still being generated, I believe that Varnado created the
testimony of the spasmodic sweeping to fit into his three-fold
theory of why he was working lethargically on April 7: (1) the
effect of the Parafon Forte, (2) the required pauses between
blasts, and (3) his required waiting while the women carried off
the buckets of sand—an activity from which he was not actu-
ally exempted by the Medical Department, contrary to Var-
nado’s testimony.92 Also, Dumas was incredible in her testi-
mony that there was “steady” sandblasting when Mott ap-
proached to discharge Varnado, and she was incredible in her
testimony that Varnado worked continuously without talking to
other employees—two things to which Varnado did not testify
himself. Realizing that I have discredited Mott (severely) else-
where, I nevertheless do credit testimony of Mott and Pierre
that during the morning of April 7, Varnado was observed by
the supervisors standing around, at least three times, loafing.
I do not believe that the Parafon Forte caused Varnado’s
lethargy. Parafon Forte, it is undisputed, will make a new user
drowsy. I do not, however, believe Varnado’s self-serving tes-
timony that he had lost the bottle of Parafon Forte that he had
been given the week before; that is, I do not believe that he was
a new user. I discredit Varnado’s testimony that he took the
drug on an empty stomach, and that made him drowsy, and that
caused his lethargic performance. At any rate, at the time that
he discharged Varnado, Mott did not know that Varnado was
drowsy or that Varnado was taking medicine that might make
him drowsy (if, indeed, Varnado was drowsy).
On brief, Respondent states, “Mr. Donald Varnado was ter-
minated on commission of the immediate discharge offense of
deliberate loafing during hours of work.” While counsel charac-
terizes Varnado’s conduct as that which would require no prior
offenses to warrant discharge under the literal terms of the
Avondale Employees’ Guide, Mott, the supervisor who dis-
charged Varnado, did not. As quoted above, Mott firmly denied
that Varnado had done anything more than waste time under
General Offense-4. Further, Mott clearly testified that he dis-
charged Varnado because Varnado’s offense of April 7 was his
third within 12 months; moreover, Bourgeois testified that he
declined to reverse Mott’s decision because of Varnado’s “pre-
vious” problems and warning notices coupled with Varnado’s
conduct of April 7. That is, the lawyer’s post hoc theory of the
case notwithstanding, Varnado was not discharged because he

92 At his unemployment compensation hearing Varnado offered a
fourth reason for his halting performance on April 7; in that hearing
Varnado testified that he was stopped by passers—by who inquired
about his health.
had committed an immediate discharge offense under the
Avondale Employees’ Guide.
Again, as stated in the cases of discriminatees Marshall and
Hernandez, Mott testified that he discharged Varnado because
employees “can,” or “could,” be terminated upon their third
disciplinary offense within 12 months; Mott did not, however,
testify that there was any rule of practice that employees were,
or should be, discharged upon their third disciplinary offense
within 12 months.93 Moreover, as further demonstrated above,
during the 1990–1994 period Respondent allowed 883 employ-
ees to accumulate three, or more, warning notices without dis-
charging them. At most, therefore, Respondent has shown only
that employees such as Varnado “could” be discharged on their
third offense within 12 months; it has not demonstrated that
Varnado “would” have been discharged for his third offense
within 12 months even in the absence of his expressions of
prounion sympathies. That is, Respondent has not come for-
ward with a defense under Wright Line; to the extent that it can
be said to have come forward with any defense, the General
Counsel has shown that Varnado was treated disparately. Ac-
cordingly, I find and conclude that Varnado was discharged in
violation of Section 8(a)(3).
d. Donald Thompson’s discharge for loafing and having prior
warning notices
Donald Thompson (vols. 29, 30) was employed as a welder
until he was discharged on July 16, 1993. The second com-
plaint, at paragraph 101, alleges that by discharging Thompson
Respondent violated Section 8(a)(3). The General Counsel
contends that Respondent discharged Thompson because of his
known union activities and expressions of sympathy which
included his wearing prounion insignia and his speaking fa-
vorably about the organizational attempt at an employer cam-
paign meeting. The General Counsel further alleges that
Thompson was unlawfully interrogated about his union activi-
ties and sympathies. Respondent denies that the interrogation
occurred. Respondent further denies that its supervisors had
knowledge of any union activities or sympathies of Thompson
at any relevant time. Respondent further answers that Thomp-
son was discharged solely because, on July 15, he committed
the disciplinary offense of quitting work before his shift ended
and, within the 12-month period prior to July 15, Thompson
had been issued two other warning notices. Although not dis-
puting the validity of the two prior warning notices, the General
Counsel replies that Thompson did not quit work early on July
15. Alternatively, the General Counsel replies that, even given
the fact that Thompson had been issued two valid warning no-
tices during the 12 months before July 15, and further assuming
that he committed another disciplinary offense on that date,
Thompson was treated disparately because other employees
received three or more warning notices in 12-month periods
without being discharged. Ultimately, I find that Thompson did
not quit work early on July 15, that the reason assigned for his
discharge is a pretext, and that his discharge violated Section
8(a)(3).
Thompson worked on the 3:30–to-midnight shift under
Foreman Charles Rotolo. Thompson testified that in May he
attended an employer campaign meeting conducted by Welding

93 As Mott defined the practice of discharging employees after a
third warning notice, “[i]t depends on the employee.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1122
Department Superintendent Norris (Black) Pertuit. According
to Thompson:

Well, Mr. “Black” Pertuit mentioned something about
the Union, and I told him, “Well Avondale does anything
they want to do, so I am going to vote for what is best for
me. And . . . maybe the Union could make a change for the
better in the yard.”

The General Counsel relies on this testimony as evidence of
knowledge of Thompson’s prounion sympathies, specifically
knowledge by Pertuit, who ultimately made the decision to
discharge Thompson. Pertuit denied recollection of any such
statement by Thompson at an employer campaign meeting. I do
not credit that disclaimer of recollection; I find Pertuit knew of
Thompson’s prounion sympathies at the time of Thompson’s
discharge.
Thompson further testified that about 2 weeks before the
June 25 Board election, when he and Rotolo were in a work
area where no one else was present:

Well, he [Rotolo] asked me how did I feel about the
Union, and I just told him, “Well, John [sic], Avondale has
been mistreating the employees anyway, so a man would
have to be crazy not to vote for the Union.”

Based on this testimony by Thompson, paragraph 40 of the
second complaint alleges that Respondent unlawfully interro-
gated its employees.94 Rotolo denied the interrogation, but,
when asked on direct examination if Thompson had ever told
him that an employee would have to be crazy not to vote for the
Union, Rotolo answered: “I don’t remember.”
Thompson testified that in his response to the interrogation
he called Rotolo “John,” although Rotolo’s given name is
Charles. This does cause me to wonder somewhat about the
testimony, but Thompson was not asked to explain why he
called Rotolo “John,” and I do not draw any conclusion from
this factor. I found Thompson credible in his testimony that
Rotolo asked him how he felt about the Union. I conclude that
Respondent, in violation of Section 8(a)(1), by Rotolo, in mid-
June 1993, interrogated its employees about their union mem-
bership, activities, or desires. Moreover, Rotolo’s testimony
that he did not remember if Thompson had told him that an
employee would have to be crazy not to vote for the Union was
less than a denial; I find Rotolo’s nondenial to be more evi-
dence that, at the time of his discharge, Respondent’s supervi-
sors knew of Thompson’s prounion sympathies.
Thompson testified that he began wearing a “Union-Yes”
sticker on his hardhat during the week before the June 25 Board
election, and he continued to wear it through the date of his
discharge. Rotolo denied remembering that Thompson ever
wore a “Union-Yes” sticker; Pertuit was not asked if he saw
Thompson wearing a “Union-Yes” sticker. I find that Thomp-
son wore a “Union-Yes” sticker, as he described, and this is
further support for the conclusion that Respondent’s supervi-
sors, specifically Pertuit, knew of Thompson’s prounion sym-
pathies at the time of Thompson’s discharge.

94 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against Thompson, as well as
the charge in Case 15–CA–12171–1.
Background of Thompson’s Discharge
On November 16, 1992, Thompson was issued a warning no-
tice. The supervisor checked the box for Major Offense-2 under
the Avondale Employees’ Guide; the stated reason for the
warning is: “Failure to do job assigned. . . . Unless you improve
this situation, you will be subject to immediate discharge.” On
March 30, 1993, Thompson was issued another warning notice;
no box for a general offense or major offense number is
checked; the foreman’s statement of the reason for the warning
is: “Failure to do job assigned. THIS IS YOUR FINAL
WARNING.”
Regarding the subject of Thompson’s alleged disciplinary of-
fense of July 15, Rotolo (vol. 99) was asked and he testified:

Q. What is the rule for the second shift employees re-
garding working—what is the rule, if any, regarding work-
ing between let’s say 11:00 and 12:00?
A. That all employees are supposed to work until ten
minutes till [midnight]. The Company allows them ten
minutes to roll up their equipment and go to the bathroom,
wash their hands or whatever they want.

To “roll up” or to “pick up” is to gather one’s tools and supplies
and place them where they belong. Rotolo further testified that
“several times” in the weeks before Thompson’s discharge he
warned his crew about their rolling up before 11:50 p.m. Rotolo
testified that he gave his crew, including Thompson: “A verbal
[oral] warning. I told them that they were rolling up too early
and that it was getting out of hand.” Rotolo further testified that
he told his crew that, if they continued to roll up early, “That I
would have to give them a citation.”
Thompson’s Discharge—General Counsel’s Evidence
Thompson testified that on July 15, about 8 p.m., he had
trouble with his welding machine. He and Rotolo tried to fix it,
but they were unable to do so. Someone was called from an-
other department, and that person was able to get the machine
to work again. The machine worked until about 11:30, when it
failed again. Thompson again reported the trouble to Rotolo.
Rotolo was not able to get the machine working again, and
Rotolo left Thompson’s work area. Thompson testified that he
continued working on the machine until less than five minutes
before midnight. At that point he started picking up his tools in
preparation for leaving. Thompson testified that his working
after 11:50 caused him to punch out after midnight.
When Thompson reported for work on July 16, he was met
by Rotolo. According to Thompson:

Well, Mr. Rotolo rode up to me on a bicycle and told
me that I was terminated.
I asked him why, and he said, “For picking up too
early.”
I said, “Well, why are you saying that now?”
And he said, “Well, a lot of them was”—that they
were standing at the restroom.
I said, “No, Charlie, it couldn’t have been me because
I had problems with my machine. I was still working on
my machine at the time.”

Thompson was discharged at that point. Thompson testified
that he did not go to the restroom during the last hour of work
on July 15. On cross-examination, Thompson further testified
that Rotolo also told him that he was being discharged because
he had “two previous warnings.”
AVONDALE INDUSTRIES

1123
Thompson’s Discharge—Respondent’s Evidence
Rotolo testified that when he issued assignments at the start
of the shift on July 15, he spoke to all of his crew and: “I told
them to make sure not to roll up early.” Rotolo testified that he
assigned Thompson to work at one end of a platen with Kevin
Pernell, Bobby Phelps, Manuel Penaranda, and Freeman Keel.
Rotolo testified that he made several rounds of the area that
night. On his first round, about 4:30 p.m., he stopped and
helped Thompson get his welding machine working, and
Rotolo testified that Thompson reported no other problems with
the machine during the shift. During a round that he made
about 10:30, Rotolo testified, he spoke to each member of his
crew and, “I told them make sure that they didn’t roll up too
early.”
Rotolo testified that “about 20 minutes to 12:00,” when he
went to the end of the platen where Thompson, Pernell, Phelps,
Penaranda, and Keel were working, he saw that all five em-
ployees: “already unplugged their hand lights and already was
rolled up.” Rotolo testified that some of the five employees
were standing near the restroom and some were standing on the
unit; both groups were doing nothing but standing around, loaf-
ing. Rotolo testified that “I don’t recall which ones” were
standing near the restroom. When asked where Thompson was
standing, Rotolo responded: “If I remember, he was up on the
unit.” Rotolo testified that he watched both groups for 10 min-
utes, “[b]ecause I wanted to see what they were going to do.”
According to Rotolo, he walked to the group in which Thomp-
son was standing, and he asked the men what they were doing;
Rotolo was asked and he testified:

Q. What, if anything, did Donald Thompson say?
A. I don’t recall offhand what he said.
Q. Did you get any response from anybody at that
time?
A. I don’t remember that they did. . . .
JUDGE EVANS: Can you recall anything that was said
out loud between you and the five employees?
THE WITNESS: Not offhand.

Rotolo testified that after he confronted the five employees, he
went to the office and left a note for the clerk to type out five
warning notices for the employees.
Rotolo testified that when he arrived at work the next day,
July 16, the clerk had typed out the five warning notices. He
was preparing to leave the office and issue the warning notices
when Pertuit commented that Thompson had been issued two
warning notices within the preceding 12 months; Rotolo replied
that he had forgotten about Thompson’s two prior warning
notices. Pertuit told Rotolo to terminate Thompson when
Thompson arrived at work.
Rotolo testified that he met Thompson when Thompson
came to the work area at 3:30. Rotolo disclaimed all memory of
what he said to Thompson, other than that he told Thompson
that he was discharged. Rotolo distributed the warning notices
to Pernell, Phelps, Penaranda, and Keel; Respondent placed
copies of those four warning notices in evidence.95
Pertuit (vol. 104) testified that on July 15, Rotolo reported to
him that he was having trouble with employees on rolling up

95 It is to be noted that, although the circumstances are similar, Re-
spondent did not offer copies of all of the warning notices that were
supposedly issued in the case of alleged discriminatee Vernon Charles,
as discussed infra.
early. Pertuit told Rotolo to give them oral warnings. On July
16, Pertuit further testified, Rotolo reported to him that, the
night before, five employees had rolled up early again, after
being orally warned against doing so. Rotolo told Pertuit that he
would like to issue warning notices to all of them. Pertuit told
Rotolo to do so. After that, the welding department clerk told
Pertuit that Thompson had two prior major offense warnings,
one of them “final.” Pertuit testified that he then decided to
discharge Thompson. Further on direct examination, Pertuit
was asked and he testified:

Q. In your department, Mr. Pertuit, what happens—
what can happen if an employee receives three warnings?
A. He could be terminated. It all depends on the warn-
ings, if it is serious warnings.
Q. Do you have any rule in your department regarding
three warnings?
A. Yes. We will write up a major offense most of the
time—what I call major—leaving [out a flow] meter
sometime which could kill people, failing to do your job,
failing to do poor [sic] work. You could get two of the
same, and on the second one you will get the final written
warning. And on the third one, if it is another major of-
fense that we feel it is a major offense, you could get ter-
minated with a 22 [ASI-22 Discharge] form.

On cross-examination, Pertuit testified that a third offense
(within 12 months) need not be a major offense under the
Avondale Employees’ Guide for an employee to be discharged;
it would only have to be a “serious” disciplinary violation. As
quoted above, Pertuit also testified that an offense might cause
discharge if it was a “major” offense, as he defined it. Pertuit
was further asked on cross-examination and he testified:

Q. And could you tell me for your own working pur-
poses what do you mean by a major offense—what things
come to your mind as a major offense category?
A. Refusing to do the job, job assignments, not doing
your job assignments, leaving flow meters out, things like
that. I call that major because you can kill people.
Q. All right. So major are things that result in some-
body’s death?
A. Correct.

Then, on redirect examination, Pertuit was led, and he testified:

Q. Under your work rules as Welding Department su-
perintendent, does a major offense have to be one that
would result in accident or death of a worker?
A. No, it could be failing to do job assignments. It
could be failing to—not listen to a foreman’s order.
Q. Do you consider rolling up early after an employee
has been warned to be a major offense? . . .
THE WITNESS: Yes, if he has been verbally warned and
he continued doing it. Yes.

Then, on recross-examination, Pertuit was asked and he testi-
fied:

Q. So to determine if the other citations made rolling
up early a major offense, what, if anything, are you look-
ing for in the earlier citations?
A. It could be any other major offense, flow meters,
job assignments, not listening to a foreman, too many
safety glasses—it could be a number of things—coming in
late too many times, he can maybe have been seen for—
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1124
what other—lateness, tardiness, coming in late, glasses, if
it is too many, or flow meters. So many other ways we
write up people—not following safety rules, going on the
place that don’t have handrails after you warn them—
many ways you could look at it.
Q. So you would look for those types of things, con-
sider whether or not the employee was orally warned be-
fore, and then determine if failing to roll up was a major
offense?
A. In other words, rolling up after he is verbally
warned, we write him up as a major offense. We verbally
warn everybody.
Q. Well, do you have to have the other discipline in
your file and the verbal warning to make rolling up early a
major offense, or just the verbal warning?
A. In other words, if he had two major offense, and I
put in a second final written warning, and he was verbally
warned, and he still did it again, I will terminate you.
Q. All right. But do you need all those things for roll-
ing up early to be a major offense, or were you just—
A. I consider it after being verbally warned to be a ma-
jor offense.
Thompson’s Discharge—General Counsel’s
Rebuttal Evidence
Pertuit conceded that Penaranda, one of the four employees
who received warning notices on July 16, was still employed by
Respondent at the time of trial. On rebuttal, the General Coun-
sel showed that on March 8 Rotolo had issued to Penaranda a
warning notice for Major Offense-2 under the Avondale Em-
ployees’ Guide, “Failure to do job assigned.” Next after that
came Penaranda’s warning that was issued following the events
of July 15; it is marked for General Offense-4, and Rotolo
wrote as the reason for the warning, “Quitting work, going to
the timeclock area before the specified time.” (The warning
notices to Phelps, Keel, and Pernell are identical; any warning
notice that may have been drafted for Thompson was not pre-
sented to him.) On February 4, 1994, Rotolo issued to Pena-
randa another warning notice for violation of Major Offense-2;
Rotolo wrote: “Failure to follow instructions issued by supervi-
sor. . . . Unless you improve this situation you will be subject to
immediate discharge.” Pertuit was not called in surrebuttal to
explain why Penaranda was still employed at the time of trial
even though, within a 12-month period, Penaranda had received
two major offense warnings, as well as the warning notice of
June 16.
Further rebuttal evidence to be considered lies in the proof
that at least 883 employees were issued three or more warning
notices within 12-month periods from 1990 through 1994 with-
out being discharged.96 This proof is detailed in the above dis-
cussion of the case of alleged discriminatee Barbara Marshall
and Appendices B and C of this decision.
Thompson’s Discharge—Credibility Resolutions
and Conclusions
I have credited Thompson’s testimony that he wore prounion
insignia as he worked, that he spoke up in favor of the Union at
an employer campaign meeting that Pertuit conducted, and that
he responded affirmatively to a violative interrogation by
Rotolo. Knowledge of Thompson’s prounion sympathies is thus

96 One of these employees was Thompson who received three warn-
ing notices in 1990, well before the organizational attempt began.
established. Respondent’s animus was made clear in the June 1
speech by Respondent’s chief executive, Bossier, who labeled
such prounion employees as Thompson “whiners, malcontents
and slackers” who “want to destroy Avondale,” simply because
they did support the Union. Moreover, such prounion insignia
as Thompson displayed were often made the objects of threats
to employees, as I have found above, or as I do find infra. In
view of Respondent’s animus toward the employees who fa-
vored the Union, especially those who wore prounion insignia,
I conclude that a prima facie case of unlawful discrimination
against Thompson has been established by the General Coun-
sel, and the burden shifts to Respondent to demonstrate by a
preponderance of the evidence that it would have taken the
same action against Thompson even in the absence of his
known protected activities. Respondent’s defenses must there-
fore be examined.
Rotolo testified that he could not remember which employ-
ees were loafing at the restroom, and which employees were
loafing on the unit, on July 15. Rotolo testified that he asked
Thompson and the four employees who received warning no-
tices what they were doing, but Rotolo disclaimed memory of
what Thompson replied. Rotolo also denied ability to remember
anything that he said to Thompson on July 16, except he told
Thompson that he was discharged. Thompson was the only one
of the five employees who was discharged; it is unlikely to the
point of disbelief that Rotolo could not remember what was
said when he confronted Thompson on July 15, and Rotolo’s
own testimony raises the immediate suspicion that there was no
such confrontation. Moreover, as well as denying that such a
confrontation occurred, Thompson testified, without contradic-
tion by Rotolo, that in the discharge interview of July 16 Rotolo
told Thompson that he had seen “a lot” of employees rolling up
early, but Rotolo did not then tell Thompson that he had seen
Thompson picking up early. Rotolo also told Thompson in the
discharge interview that some of the employees had been stand-
ing around the restroom, but he did not tell Thompson that he
saw Thompson standing around the restroom. I believe that
Rotolo was so vague and forgetful in his testimony because he
had not seen Thompson roll up early on July 15, and he did not
confront Thompson on that date.
I believe, and find, that Thompson did not roll up early on
July 15. Moreover, I do not believe that Rotolo, in good faith,
believed that Thompson had rolled up early. I believe that,
when Rotolo reported to Pertuit on July 16 that some employ-
ees had rolled up early on July 15, Pertuit ordered Rotolo to
include Thompson in the group to be disciplined. Rotolo did so,
even though Rotolo knew that Thompson was not one of those
who had rolled up early. (At least, Rotolo, as shown by his
vague testimony, did not remember Thompson’s being in the
group that had rolled up early.)
Thompson wore prounion insignia as he worked, and he
spoke up to Pertuit and stated that “maybe the Union could
make a change for the better in the yard.” Moreover, in re-
sponse to a violative interrogation, Thompson had told Rotolo
that a man would have to be “crazy” not to vote for the Union. I
find that these are the reasons that Thompson was falsely97
included in the group of employees who had rolled up early on
July 15, and the reasons that he was ultimately discharged.

97 Thompson testified that he actually punched out after midnight.
Respondent, who has all such records, did not dispute this testimony.
AVONDALE INDUSTRIES

1125
Even if Thompson engaged in some degree of misconduct,
Respondent has not come forward with probative evidence that
he would have been terminated even absent his protected activi-
ties. Penaranda received three warning notices in 12 months,
two of which were marked “Major” under the Avondale Em-
ployees’ Guide. Nevertheless, Penaranda was not terminated.
Penaranda’s case is a perfect paradigm of disparate treatment.98
Moreover, Respondent has not demonstrated why as many as
883 employees were issued three or more warning notices in
12-month periods without being discharged (as discussed in
Marshall’s case), but it was necessary, for some reason, to dis-
charge Thompson. Additionally, Pertuit testified that Thomp-
son was discharged because his conduct of July 15 was “seri-
ous,” or “major,” as he defined those terms. Pertuit gave a vari-
ety of examples of “serious,” or “major” conduct; until he was
led on redirect examination, many of these examples consisted
of misconduct that would result in injury or death. Then Pertuit
testified that a violation is “serious,” or “major,” under his defi-
nition, if an employee has had a prior oral warning for the same
offense. All supervisors who were questioned on the point
testified that they issued oral warnings before they issued warn-
ing notices. (And, as Pertuit testified, “We verbally warn eve-
rybody.”) Therefore, under Pertuit’s amended definition of
“serious,” or “major,” all offenses for which warning notices
are issued are “serious,” or “major,” because all warning no-
tices are preceded by oral warnings. Such reasoning would, of
course, defeat the progressive disciplinary system of, and any
distinctions between, major offenses and general offenses under
the Avondale Employees’ Guide.
Finally, according to Pertuit, even if all of his criteria could
be satisfied, an employee is not necessarily discharged for his
third offense within 12 months. Pertuit testified that if the of-
fenses committed by an employee were “serious,” or “major,”
the employee “could be terminated.” Pertuit did not testify that,
in each case where his criteria are met, an employee is always,
or even usually, terminated. If the matter remains optional with
Respondent, Respondent has not demonstrated that it would
have discharged Thompson absent his protected activities.
In summary, I find that Respondent has not met its burden
under Wright Line with evidence that Thompson would have
been discharged for some misconduct on July 15 even in the
absence of his protected activities, because: (1) Thompson did
not engage in the misconduct attributed to him; (2) Respon-
dent’s supervisors did not, in good faith, believe that Thompson
engaged in the misconduct attributed to him; (3) assuming that
he engaged in some misconduct, Thompson was treated dispar-
ately in comparison to Penaranda; and (4) again assuming that
Thompson engaged in some misconduct, Respondent has not
demonstrated why Thompson was discharged for having re-
ceived three warning notices in a 12-month period but as many
as 883 similarly situated employees were not (as demonstrated
in Marshall’s case). I therefore conclude that by Thompson’s
discharge Respondent violated Section 8(a)(3).

98 On brief, Respondent does not mention the comparison of Pena-
randa; Respondent only states that: “At the time, Thompson was the
only other employee with two previous major warnings in his file.”
Brief, page “Welding-6.” The qualification, which I emphasize, is
telling.
e. Michael Molaison’s discharge for quitting work early and
having prior warning notices
Michael Molaison (vol. 6) was employed as an electrician
until he was discharged on June 4, 1993. The first complaint, at
paragraph 27, alleges that by discharging Molaison Respondent
violated Section 8(a)(3). The General Counsel contends that
Respondent discharged Molaison because of his known union
activities and expressions of sympathy which included his
wearing prounion insignia and his making favorable comments
about the organizational attempt at employer campaign meet-
ings. The General Counsel further alleges that, in violation of
Section 8(a)(1), Molaison was threatened, interrogated, and
instructed not to wear prounion insignia. Respondent denies
that the supervisor who discharged Molaison knew of his
prounion sympathies, and it denies that the threat, interrogation,
or instruction occurred. Respondent further answers that: (1)
Molaison had two prior warning notices; (2) during the last 10
minutes of a shift, the employees are required to clean their
work areas, and they may not go to the restroom without the
express permission of their supervisors; (3) on June 2, between
3:20 and 3:30, Molaison went to the restroom without permis-
sion; (4) on June 3 Molaison was issued a warning notice for
his conduct of June 2,99 and (5) Molaison was discharged be-
cause his offense of June 2 was his third similar offense within
12 months. While not disputing the validity of his two prior
warning notices, the General Counsel contends that Molaison
was treated disparately because Molaison had quit work during
the period between 3:20 and 3:30 only to go to the restroom to
relieve himself, something that other employees were allowed
to do without prior expressed permission. Alternatively, the
General Counsel answers that, even given the fact that Molai-
son had validly been issued two warning notices during the 12
months before June 3, and further assuming that he committed
another disciplinary offense on June 3, Molaison was treated
disparately because other employees received three or more
warning notices in 12-month periods without being discharged.
Ultimately, I find and conclude that Respondent had not, before
June 3, required prior permission for restroom trips such as that
made by Molaison on that date, that Molaison did not engage in
a disciplinary offense on that date, that his discharge therefore
rested on a pretextual basis, and that by discharging Molaison,
Respondent violated Section 8(a)(3).
Molaison was a first-class electrician and fitter-welder in the
layout section of the electrical department. Molaison reported
directly to Foreman Chester Christiansen; Christiansen reported
to General Foreman Mark Poche who, in turn, reported to Sen-
ior General Foreman Gerald Gerdes and Electrical Department
Superintendent Robert Terry. (As previously noted, Gerdes
functions as Terry’s assistant superintendent and acts as Terry’s
alter ego when Terry is absent.)
Molaison testified that he regularly accepted union handbills
at Respondent’s gates during the organizational campaign, and
he frequently read the handbills in the presence of supervisors
when waiting to start work in the mornings. Molaison also wore
a union sticker on his hardhat, and he regularly wore a union
pin on his clothing. Molaison testified that in early March, or
about the time the organizational activity began, several super-
visors conducted an employer campaign meeting. Christiansen

99 Molaison’s June 3 warning notice is not alleged separately as a
violation, but, without objection by Respondent, its validity was liti-
gated as if it had been.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1126
spoke first, then Terry. Molaison openly challenged both of
these supervisors on points that they made during the meeting.
Molaison specifically asked Terry why certain pay rates had
decreased, rather than increased.100
Christiansen was first called by the General Counsel as an
adverse witness; in that examination, Christiansen was asked
and he testified (vol. 40):

Q. [By Mr. Morgan]: During the period March ‘93—
the first of March 1993 to the election, end of June 1993,
who did you consider to be for the Union that was on your
crew?
A. It was Molaison, Michael Molaison . . . [on my
crew whom] I can definitely remember. Now, anyone else
I can’t recall at this time. There was—he was the one that
wore the [Union] badge and was more or less outspoken
on my crew. Now, there were some other individuals that
worked for another foreman that wore badges also, but
they wasn’t working for me.
Q. And did you report to a general foreman or Mr.
Terry that Michael Molaison was supporting the Union?
A. Yes, sir.

Christiansen further testified that he and other foremen were
instructed to tell their general foremen who was speaking for
the Union or wearing prounion insignia; he testified that he told
his general foremen about Molaison’s being outspoken for the
Union and wearing prounion insignia (but, according to
Christiansen, the general foreman already knew it).
Christiansen also testified that, before the June 25 Board elec-
tion, Terry maintained a list of known union supporters; Chris-
tiansen further acknowledged that he once saw the list, and
Molaison’s name was on it.
Terry was also called by the General Counsel as an adverse
witness; Terry was asked and he testified (vol. 42):

Q. And you had meetings with your foremen and gen-
eral foremen concerning Avondale’s campaign against the
Union?
A. Probably hundreds of meetings.
Q. With your foremen and general foremen?
A. Yes. Concerning the campaign. Yes.
Q. And at these meetings you directed your foremen
and general foremen to do what they could to ascertain the
strength of the Union support in the Electrical Department.
Isn’t that true?
A. I directed my general foremen. Okay. I don’t nor-
mally direct the foremen; I don’t normally deal at a fore-
man’s level. I deal at the general foreman level. I directed
my general foremen to direct the line foremen to give me
some feedback for the purposes of communicating the
Company’s position on the issues to the employees that
they really perceived as being union supporters so that we
could hopefully sway their vote in favor of the Company. .
. .
Q. Okay. You asked your general foremen to direct
their foremen to try and ascertain the strength of the Union
in their department. Is that correct?
A. What I asked them, sir, was to give some feedback
to me, real or perceived, as to who was, in their opinion,
actively supporting the Union. . . .

100 The Tr., Vol. 6, p. 833, L. 16, is corrected to change “didn’t in-
quire” to “did inquire.”
Q. [By Mr. Morgan]: Okay. And this, in fact, hap-
pened. Correct?
A. It did happen.
Q. And certain names were passed back from foremen
to general foremen to you as superintendent. Correct?
A. That is correct.
Q. When you learned of these names you started keep-
ing a list. Isn’t that correct?
A. That is correct.
Q. Approximately when did you start keeping this list?
A. I think it was probably close to 30 days prior to the
actual election—the last month of the campaign, if you
will.

Also, during his direct examination Terry was asked and he
testified (vol. 91):

Q. [By Mr. Hymowitz]: Did you maintain a list of un-
ion supporters at any time during the election campaign? .
. .
THE WITNESS: Yes. I did.

On cross-examination (vol. 92), however, Terry was asked, and
he testified:

Q. [By Mr. Morgan]: Mr. Terry, on the list of employ-
ees that you kept as union supporters, was Mr. Aubrey
May’s [another alleged discriminatee herein] name on that
list?
A. I am not going to answer that. The way it was
asked, that is not a fair question.
MR. MORGAN: I object, Your Honor.
JUDGE EVANS: Sustained.
THE WITNESS: It was not a list of union supporters,
number one.

There is no surveillance allegation based on Terry’s mainte-
nance of a list of “Union supporters” or those “actively support-
ing the Union” (to employ the Day-40 words of Terry, himself).
This testimony, however, is relevant in deciding issues of
knowledge of employees in the electrical department such as
Molaison. Moreover, Terry’s denial of his own phraseology is
an indicator of Terry’s lack of credibility. There are more of
such indicators, as discussed infra.
But, to return to the narrative of Molaison’s case: Molaison
further testified about a confrontation with Christiansen after
the early March meeting in which he questioned Terry about
pay rates going down, rather than up; according to Molaison:

Immediately after the meeting we were asked to return
to work and when I walked out of the office my immediate
supervisor, Chester Christiansen, pulled me into the mate-
rials shack to talk to me alone. . . . Mr. Christiansen told
me that I was very outspoken and I had better watch my-
self.

Based on this testimony by Molaison, paragraph 7 of the first
complaint alleges that Respondent, by Christiansen, threatened
its employees with unspecified reprisals. When he was called in
Respondent’s case, Christiansen (vol. 81) denied making such a
remark to Molaison. The cross-examination of Christiansen on
this seemingly simple credibility conflict needs to be quoted at
length. Christiansen was asked and he testified:

Q. Would you say Mr. Molaison was the most outspo-
ken[?]
MR. CUPP: Objection. Relevance.
AVONDALE INDUSTRIES

1127
JUDGE EVANS: Overruled. Would you say that?
THE WITNESS: Not really.
JUDGE EVANS: Next question.
THE WITNESS: No more so than other individuals.
JUDGE EVANS: All right. Next question.
Q. [By Mr. Morgan]: Could you name the other people
on your crew that you considered as outspoken in their
support for the Union as Mr. Molaison?
A. I didn’t have any in my crew. In the department[?]
Q. Pardon me?
A. In the—you keep saying my crew. In the depart-
ment?
Q. No. I am saying, your crew.
A. In the crew of 15, not really, no.

First of all, the completely frivolous objection by Respondent’s
counsel should be noted. Of course, whether Christiansen be-
lieved Molaison to be “outspoken” was obviously relevant to
the test of Christiansen’s denial of Molaison’s testimony that he
had warned Molaison because he was “very outspoken.” Too
many times during the cross-examinations of Respondent’s
witnesses, frivolous objections were attempted by Respondent’s
counsels. After such objections, Respondent’s witnesses often
became evasive, forgetful or ignorant. For example, here,
Christiansen gave an evasive “not really” answer after the
frivolous objection, although he had previously testified that
Molaison was “outspoken.”101 Another thing to be noticed
about this cross-examination is Christiansen’s injection of the
references to “in the department.” As noted, Respondent an-
swers many of the disparate treatment allegations in this matter
with replies that treatment of employees in different depart-
ments cannot be compared; Respondent extends this argument
to say that treatment of employees in different crews in the
same department cannot be compared. Respondent’s supervi-
sors, such as Christiansen at this point, were obviously primed
to testify that they did not know how disciplinary problems
were handled by different departments, or even by different
foremen within their own departments; as the quoted cross-
examination demonstrates, Christiansen attempted to deny
knowing what was happening on other electrical department
crews, even though he had not been asked.
In his cross-examination about his alleged threat, Chris-
tiansen rendered himself incredible when he first said that
Molaison was “not really” outspoken, and then interjecting the
references to other crews. Molaison was more credible than
Christiansen, and I do credit his testimony that Christiansen
warned him about being too outspoken for the Union’s organ-
izational attempt. Telling an employee that he is outspoken and
that he should “watch” himself is a violative threat where the
employee’s outspokenness is exercised to voice collective con-
cerns of some of the employees (such as concerns about wages)
during an employer’s campaign meeting. Baton Rouge Hospi-
tal, 283 NLRB 192, 204 1987). I therefore find and conclude
that Respondent, in violation of Section 8(a)(1), by

101 Another tactic that detracted from the credibility of the witness
who were called by Respondent was its making of frivolous “founda-
tion” objections; most often thereafter, as if on cue, Respondent’s wit-
nesses usually claimed lack of knowledge or loss of memory. A third
such tactic was Respondent’s too-frequent objecting to leading, but
proper, cross-examination questions on the basis of “misquotes the
witness.” Almost invariably, the cross-examination question had not
quoted the witnesses at all. Again, negative answers usually followed.
Christiansen, in March, 1993, threatened its employees with
unspecified reprisals if they selected the Union as their collec-
tive-bargaining representative.
Molaison further testified that about the third week in April,
when he and employees Donald Poland and Calvin Landry
were in a work area, Christiansen spoke to them. According to
Molaison:

Christiansen asked us what did we think about the Un-
ion. I told him that I thought the Union would be a great
thing for us, bring us a higher pay scale and some more
representation. . . .
During this meeting that was going on with Mr.
Christiansen, Donald Poland and myself and Calvin
Landry, another supervisor from the Paint Department,
Ernie Cantrelle walked up at the time that we was having
the meeting with Christiansen and he joined in the conver-
sation also. . . .
Mr. Cantrelle said that he didn’t think the Union was
the best way to solve our problems. And I asked about the
pay scale, about the $11.75 that it used to be and now it is
down to $10, instead of going up it is going down, and he
couldn’t give me an answer on that.

Based on this testimony by Molaison, paragraph 10 of the first
complaint alleges that Respondent, by Christiansen, interro-
gated its employees.
On direct examination Christiansen acknowledged the occur-
rence of a work-area meeting with Molaison, Landry and Po-
land (or “Powers,” as Christiansen called the third employee) in
which Cantrelle joined. Christiansen testified that he was “let-
ting them know that the Union wouldn’t benefit them any,” and
that Molaison spoke in favor of the Union at this time.
Christiansen was asked and he testified:

Q. On that day in MMR-II, did you walk up to the
group of people and ask anyone in that group whether they
were supporting the Union?
A. No, sir.

Counsel did not, however, ask Christiansen if he had asked the
group what they thought about the Union, which is what Molai-
son had testified to. This was true even though counsel had
possessed the transcript of Molaison’s testimony for months
before Christiansen testified. At other times when Respondent
was seeking denials, counsel read the transcript of exactly what
the General Counsel’s witnesses had testified to. Such overly
narrow, or misdirected, questions as that asked Christiansen left
me entirely suspicious of the denials obtained.
Christiansen testified that he received the TIPS instructions,
and that: “As instructed, we were not to inquire as to the affilia-
tion for or against the Union.” It is problematical whether
Christiansen considered asking an employee what he thought
about the Union was the same as asking what his “affiliation”
was. Christiansen testified that he certainly knew what Molai-
son’s thoughts were about the Union, and that he did not need
to ask; however, Christiansen did not testify that he knew what
Landry and Poland (or Powers) thought about the Union. In this
regard, Christiansen was asked on cross-examination and he
testified:

Q. [By Mr. Morgan]: Going back to the question, you
did receive instructions, did you not, Mr. Christensen,
from superiors to try and find out who in your crew sup-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1128
ported the Union and who in your crew didn’t support the
Union?
A. Yes, sir.
Q. And you did that, didn’t you?
A. To the best of my ability, yes, sir.

I find that, despite his TIPS training, Christiansen asked the
group what they thought of the Union. Christiansen asked the
group what they thought of the Union only as something of a
lead-in to his pitch to the group that “the Union wouldn’t bene-
fit them any,” but it was nevertheless an unlawful interrogation.
I conclude that Respondent, in violation of Section 8(a)(1), by
Christensen, in mid-April 1993, interrogated its employees
about their union membership, activities, or desires.
Molaison further testified that on “[a]pproximately June 2”
(or 1 day before the event that precipitated his discharge on
June 4), he went to the office of Foreman Jimmy Pretlove; Pret-
love was not there, but Foreman A.—S. Russell was there.
(Also present was an employee who has since deceased.) Ac-
cording to Molaison:

Well, when I walked into Jimmy Pretlove’s office
where Mr. Russell was, I asked him why had he told
Christiansen something about the “Vote-Yes” sticker on
my hardhat. He then replied that we wasn’t supposed to
have anything on our hardhats except the numeral that rep-
resented what department we was in, our badge number
and our name on our hardhat. . . .
I told him that I wouldn’t remove my “Vote-Yes”
sticker until everybody in management removed their
“Vote-No” stickers which they wore on their hardhats.

Based on this testimony by Molaison, paragraph 19 of the first
complaint alleges that Respondent, by Russell, “told its em-
ployees that they were not supposed to wear any stickers on
their hardhats.” Respondent did not call Russell or offer a rea-
son why it did not do so, and Molaison’s testimony stands un-
denied. I credit that testimony.
Instructing employees that they are not to wear prounion in-
signia has a tendency to interfere with the employees’ right to
wear that insignia. It is excused only where an employer can
show legitimate reason for a prohibition against wearing any
type of insignia. Here, Respondent made no attempt at such
showing; moreover, other employees were freely allowed to
wear antiunion insignia, especially “Vote-No” stickers. That
Molaison continued to wear his prounion insignia, and defiantly
so, does not detract from the fact that such remarks have the
tendency to interfere with statutorily protected rights of em-
ployees to wear prounion insignia. I therefore conclude that
Respondent, in violation of Section 8(a)(1), by Russell, about
June 2, 1993, instructed its employees not to wear prounion
insignia.
The Last 10 Minutes of a Shift
At 10 minutes before the end of each shift, horns (or whis-
tles) sound throughout the production and maintenance areas.
The Avondale Employees’ Guide states that General Offense-5
is: “Quitting work, washing up, or going to the timeclock area
before the specified time.” The rule does not specify what the
“specified time” for washing up is. Respondent contends that it
is not the last 10 minutes of a shift. That period, Respondent
contends, is only to be used for cleaning up the work areas, and
employees may then go to the restroom only with prior ex-
pressed permission from their supervisors. Respondent placed
in evidence several memoranda to supervisors from Vice Presi-
dent Simpson and Electrical Department Superintendent Terry
dealing with the matter of work time; none of those memoranda
states, however, that employees are not to use the restroom
during the last 10 minutes of a shift. Also, General Offense-5
prohibits “washing up . . . before the specified time.” This nec-
essarily implies that there is some “specified time” for “wash-
ing up,” and, seemingly, that time would be before a shift’s
end, when employees are free to do whatever they want. The
specified time would seem therefore to be, if anything, during
the last 10 minutes of a shift. That is, the only logical construc-
tion of the Avondale Employees’ Guide is, as Welding De-
partment Foreman Charles Rotolo testified: “The Company
allows them ten minutes to roll up their equipment and go to
the bathroom, wash their hands or whatever they want.” Never-
theless, Respondent contends that, at least in the electrical de-
partment, employees are not to use the restrooms during the last
10 minutes of a shift without prior permission of foremen.
Again, there is no document setting out a special electrical de-
partment rule in this regard,102 and the existence and applica-
tion of special rules for the electrical department are issues in
Molaison’s case.
Molaison’s Discharge—Background
On December 10, 1992, Molaison was issued a warning no-
tice for violation of General Offense-4, “Wasting time, loitering
or leaving the working place without permission.” As the “Rea-
son for Warning” the supervisor stated that Molaison had been
“wasting time and not doing anything productive.” On February
19, 1993, Molaison was issued another warning notice for vio-
lation of General Offense-4. The warning states that Molaison
had left his work area at 11:45, rather than 12 noon (the latter
time being when a horn sounds for lunch).
Respondent contends that, as well as these two warning no-
tices, on April 14 Molaison was given a specific oral warning
against going to the restroom between 3:20 and 3:30. This oral
warning was not alleged as a violation; however, its importance
to the contentions of the parties requires that the evidence on it
be developed and credibility resolutions be made. Although
Respondent contends that Molaison was given a specific oral
warning on April 14, the General Counsel contends that, not
only was there no oral warning issued to Molaison on April 14,
Molaison was in effect told on April 15 that he could go to the
restroom between 3:20 and 3:30 without prior permission (as he
had done on April 14). For this reason, and others, the General
Counsel contends that Molaison’s final warning notice was
invalid and only a pretext for discharging him.
In April, both General Foreman Poche and Foreman
Christiansen maintained offices on the helicopter deck of an
LSD. Those offices were in the proximity of a restroom. Molai-
son testified that on April 14, as he exited the restroom, he met
Gerdes and Poche (but not Christiansen). Gerdes asked Molai-
son who his foreman was; Poche interjected that it was
Christiansen. Molaison went back to work. That evening Mo-
laison called Christiansen at home and reported the matter;
Molaison asked Christiansen to arrange a meeting the next day
with Poche; Christiansen replied that he would. The next day,

102 On brief, page “Electrical-58,” Respondent states that Terry’s
“production notes” to foremen contain the electrical department rules in
this regard; those notes were contained only in an exhibit that Respon-
dent withdrew.
AVONDALE INDUSTRIES

1129
April 15, General Foreman Kelly gave a speech urging, in the
strongest of terms, better productivity. After that meeting, fur-
ther according to Molaison, he and Christiansen approached
Poche in the presence of Kelly and Simpson, and:

In the conversation I asked Mr. Poche why had he [on April
14] pointed me out in front of Mr. Gerdes like that, and he
told me it was to make himself look good. . . . They [Kelly
and Poche] told me that they had no problem with my work
and as long as Mr. Christiansen didn’t have any complaints,
they didn’t have any complaints.

On the basis of this testimony, the General Counsel argues that
on neither April 14 nor 15 did Molaison receive an oral warn-
ing about using the restroom without permission between 3:20
and 3:30; in fact, the General Counsel contends that on April 15
Molaison was effectively told that he could do so.
Christiansen testified that he was with Gerdes and Poche
during the April 14 event. Christiansen testified that he, Poche,
and Gerdes were, “just standing there, watching to make sure
[that] everybody was staying active and busy during the clean-
up period.” (To the extent that this testimony was designed to
convey the impression that the supervisors were doing some-
thing other than watching who exited the restroom between
3:20 and 3:30, I discredit it; three levels of supervision were not
standing in a single, comparatively small, area, to watch what-
ever work might also have been going on in that area.)
Christiansen testified that Molaison came out of the restroom
between 3:20 and 3:30, but nothing was said by the supervisors
to Molaison, and the supervisors did not discuss the matter
among themselves. That evening, further according to
Christiansen, when Molaison called him at home, Molaison
asked Christiansen if he was in trouble. Christiansen told Mo-
laison that he would see what he could do for Molaison. The
next day, Christiansen spoke to Poche and asked if Molaison
could be let off with an oral warning. Poche agreed.
Christiansen further testified that he was not present when such
a warning was given. (Christiansen gave two pretrial affidavits
that dealt with the April 14 incident; neither mentions that he
was with Gerdes and Poche when Molaison exited the rest-
room.)
Poche (vol. 77) testified that on April 14 he was standing on
the helicopter deck where “I observed Mr. Molaison going into
the restroom between 3:20—well, at 3:20, right after the whis-
tle had blown.” Then, according to Poche:

Well, my supervisor, Gerry Gerdes, had approached
me. We were standing on the deck, and we observed Mr.
Molaison coming out of the restroom. . . .
We approached Mr. Molaison, asked him, where was
he supposed to be. He said he was supposed to be in the
clean-up area, but he wanted to go into the restroom. At
that point I told him he is not supposed to be in the rest-
room between 3:20 and 3:30. That is the designated time
for all employees to clean up. He was supposed to be in
his assigned work area, cleaning. . . .
[I gave Molaison] a verbal warning at that time not to
do it—not to let it happen again; that if it did happen, fur-
ther action would be taken.

Even though Molaison was one of the more active prounion
employees, and even though it was Gerdes who ultimately dis-
charged Molaison, when Gerdes was called to testify as a wit-
ness for Respondent (vols. 122, 123), Gerdes was not asked on
direct examination about the April 14 incident or anything else
having to do with Molaison. This was no oversight by Respon-
dent’s counsel. Before Gerdes testified, Terry had testified (at
Vols. 90–94) that he had personally discharged Molaison. This
testimony by Terry was not true, as discussed below, but it
effectively prevented Respondent from asking Gerdes anything
about Molaison while Gerdes was on direct examination.
Gerdes was, however, asked several questions about Molaison
on cross-examina-tion.
Gerdes testified on cross-examination that on April 14, he
and Poche “walked the ship” (conducted an inspection round)
between 3:00 and 3:20; they got to the helicopter deck just
before 3:20, and he and Poche stopped where they could see the
restroom. (Gerdes made no mention of Christiansen’s being
there with Poche and himself). Gerdes testified that he saw
Molaison exit the restroom at 3:25. Gerdes testified that he told
Poche: “The man is knocking off early. Why—what has hap-
pened? Go do something about it—right now.” Poche walked
50 feet away from Gerdes and spoke to Molaison. Poche re-
turned to Gerdes, and, further according to Gerdes, “He [Poche]
told me the man [Molaison] has had problems before. He
warned the man. He gave him a verbal warning—one more
time. And I said, Okay. And that was it.”
Therefore, there are conflicts in Respondent’s testimony
about the events of April 14 because: (1) neither Poche nor
Gerdes mention Christiansen’s being present, and
Christiansen’s two pretrial affidavits do not mention his being
present, but Christiansen testified that he was there; (2) Poche
testified that “I” observed Molaison going into the restroom;
then he was joined by Gerdes, but Gerdes testified that he and
Poche had been walking the ship when they got to the area of
the helicopter deck restroom and saw Molaison only as he left
the restroom; (3) Poche testified that, when he and Gerdes ob-
served Molaison exiting the restroom, he “at that point” warned
Molaison, but Gerdes testified that he sent Poche 50 feet away
to warn Molaison, and that, when Poche walked back to him,
Poche reported that he had just warned Molaison and that he
had previously warned Molaison about the same thing. Poche,
however, did not testify that he had previously (i.e., before
April) warned Molaison about such conduct, and Poche cer-
tainly did not testify that he reported to Gerdes that he had
warned Molaison “one more time.”
Molaison credibly testified that Poche asked him who his
foreman was; this would have been unnecessary if Christiansen
had been present, and I do not believe that Christiansen was
present. Only Christiansen testified that nothing was said to
Molaison when Molaison exited the restroom. Christiansen
testified that he drives a bus, and his passengers are anxious for
him to get to the bus promptly after 3:30. (Some quotations of
this testimony by Christiansen are entered below.) I believe,
and find, that Christiansen, Poche and Gerdes, were watching
the restroom to see who entered (or left) between 3:20 and
3:30. Then Christiansen left the helicopter deck before Molai-
son exited the restroom, and that is why he did not know that at
least something was said to Molaison as he exited the restroom.
(Christiansen would, therefore, have left the ship well before
3:30. I believe that Poche and Gerdes withheld the testimony
that Christiansen had been there when Molaison went into the
restroom, and Christiansen lied about being there when Molai-
son exited the restroom because, in other cases, alleged dis-
criminatees are disciplined for leaving the ship before 3:30, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1130
supervisors and employees are subject to a prohibition against
exactly that.)
There is no way of explaining the difference in the testimo-
nies of Poche and Gerdes about when an oral warning was
given to Molaison on April 14, except to credit Molaison and
find, as I do, that no such warning then occurred. When Molai-
son exited the restroom, Gerdes asked Molaison who his fore-
man was, and that was all that was then said to Molaison.
The next question is whether, as Molaison testified, on April
15 Poche admitted in front of Kelly, that his confronting Molai-
son the day before was just to make himself “look good” in the
eyes of Gerdes. Kelly and Poche denied that any such remark
was made. I do not believe Molaison’s testimony that, immedi-
ately after Kelly gave a strong speech urging more productivity,
Poche, in Kelly’s presence, told Molaison that he had pointed
Molaison out to Gerdes only to make himself “look good.” (I
need not speculate about what, if anything, Poche might have
said to Molaison on April 15.)
Therefore, I find that Molaison was not issued an oral warn-
ing on April 14, but I also find that on April 15 he was not
given some sort of expressed or implied imprimatur for going
to the restroom without permission during the last 10 minutes
of his shifts.
Molaison’s Discharge—General Counsel’s Evidence
Molaison testified that on June 3 his work area was at the
bottom of the ship, but Christiansen had assigned him, indi-
vidually, to clean an area on the helicopter deck between 3:20
and 3:30. Molaison further testified that at 3:26, he went into
the restroom that was steps away from the area that he had been
cleaning. As he exited the restroom he was met by Poche and
Christiansen. Molaison testified:

Mr. Poche asked me what was I doing in the bathroom.
I told him I was taking a piss. . . . I told him that “when
you got to go, you got to go.” He told me I wasn’t sup-
posed to be in there is what he told me. . . . Well, as they
were talking to me and he asked me what time it was, that
is when the 3:30 whistle blew. I said, “Well, it is 3:30
now.” I didn’t stick around and talk anymore; it was time
for me to go home.

Molaison did leave the plant after this exchange with Poche.103
On June 4, when he reported to work, Poche presented Mo-
laison with a warning notice; the warning notice was signed by
Poche and Christiansen, and it was marked for General Of-
fense-5, the “Date and Time of Offense” space is filled in: “06–
03–93—3:26 p.m.” The “Reason for Warning” space is filled
in: “Quitting work, washing-up before specified time.” Molai-
son refused to sign the warning notice. Poche called for a Secu-
rity Department truck to drive Molaison and himself to the
electrical department office. There, Molaison and Poche met
with Gerdes, but not Terry. (Molaison testified, without contra-
diction: “When we got there we found out that he [Terry]
wasn’t present that week, and in turn we talked to Mr. Gerry
Gerdes who is [the] Assistant Superintendent over the Electri-
cal Department.”)
Gerdes first spoke to Poche; then he called Molaison into his
office. Gerdes had placed on his desk the three warning notices

103 That is, Molaison was in as much of a hurry to leave the plant on
June 3 as I have found that Christiansen was on April 14, and as much
of a hurry as Christiansen admits that he was on June 3, as discussed
infra.
that Molaison had received since December 10, 1992. Molaison
testified: “He [Gerdes] looked at the three written warnings and
said that due to the three written warnings and my actions that I
was being terminated.” As was the usual routine for terminated
employees, a security department truck was ordered, and Mo-
laison was driven to the ship to collect his personally owned
tools; then he was escorted out the gate.
Molaison’s Discharge—Respondent’s Evidence
Christiansen was asked and he testified:

Q. Now, on that particular day, where, if anyplace, was
Molaison assigned to clean?
A. We were—as my group of employees on my MCR,
we were assigned the helicopter deck, and also the 01 level
all the way forward.
Q. Was Mr. Molaison assigned to clean down in the
engine room?
A. No, sir. He was—as stated before, you cleaned up
your own mess, which would be a little group, and then
you go to your assigned area.

Poche testified that between 3:20 and 3:30 on June 3, when
he was standing in the area of the helicopter deck restroom:

Again, I was standing out on the helo deck, outside my
office, which is a normal occurrence every day, to make
sure that we have no one on the helo deck, as we are not
assigned to clean that specific area. . . . I observed Mr.
Molaison going into a restroom after the 3:20 whistle had
blown.

(Therefore Christiansen and Poche conflict on whether
Christiansen’s crew (or “group”) was assigned to clean in the
area of the helicopter deck.) Poche further testified that he
stepped over to Christiansen’s office and asked Christiansen to
come out. Poche asked Christiansen if he had given Molaison
permission to use the restroom in that 3:20 to 3:30 period.
Christiansen replied that he had not. Further according to
Poche:

When Mr. Molaison came out, it was just before the
3:30 whistle had blown. I asked him what he was doing.
He said he went into the bathroom. Again I told him, “You
know you are not supposed to be in there at that time of
the day.”

Poche testified that Molaison left without responding; Poche
then told Christiansen to draft a warning notice to be issued to
Molaison; Christiansen replied that he did not have time be-
cause he had to drive a bus of workers promptly at 3:30. Poche
went to his office and drafted the warning notice himself.
Christiansen testified that he was present when Poche con-
fronted Molaison as Molaison left the restroom on June 3. Con-
trary to both Molaison and Poche, Christiansen testified:

Well, he [Molaison] seen us there and kind of like—I
don’t recall him saying anything. He had a little frown on
his face, and then the whistle blew, and that was about the
extent of that thing. . . .
Well, the [3:30] whistle blew, and we left the ship. . .
. I took off. I left the ship also. I got a bus, 3:30 people; I
got to get out there. You know, they don’t want to wait on
me, and I don’t want to wait on them, and we try to get off
the ship as soon as possible.

AVONDALE INDUSTRIES

1131
Christiansen did not testify that Poche asked him if he had
granted Molaison permission to use the restroom.
Poche testified that after Christiansen and Molaison had left
the ship, he drafted a warning notice for Molaison and called
Gerdes. Gerdes and Poche testified that during that telephone
conversation Poche reported Molaison’s conduct and Gerdes
told Poche to bring Molaison to the electrical department office
at the first of the following morning, June 4.
Although Molaison testified that he was discharged by
Gerdes, and although (as will be seen) Poche and Gerdes also
testified that Molaison was discharged by Gerdes, Terry, during
direct examination, was asked and he testified (vol. 90):

Q. Who made the decision to terminate Mr. Molaison?
A. As the department head, I made that decision.
Q. And why did you terminate—why did you decide to
terminate Mr. Molaison?
A. Excessive absenteeism, also quitting work early,
washing up, not cleaning his work area, things of that na-
ture. There was three offenses in a row, as I recall, for
quitting work early and leaving the workplace.

It is undisputed that Molaison had no absenteeism problem;
certainly, he had no warning notices for absenteeism. On cross-
examination, Terry nevertheless insisted that absenteeism was
part of his reason for deciding to discharge Molaison. Terry
further testified on cross-examination that he was informed of
Molaison’s June 3 conduct in a telephone call from Poche;
according to Terry (vol. 91):

I recall him [Poche] saying, “Bob, I got Mike Molai-
son here. This—I am writing him a citation. He quit work
early. He was washing up. It was witnessed by Chris and I.
He has got two prior warnings for the same offense.”

Terry testified that Poche then brought Molaison to him for
discharge. Terry was further asked on cross-examination, and
he testified (vol. 91):

Q. [By Mr. Morgan]: Was Mr. Gerry Gerdes in any
way involved in the decision to terminate Michael Molai-
son?
A. I am not aware of any involvement in the decision-
making there by Mr. Gerdes.
Q. Did you talk to Michael Molaison before you dis-
charged him?
A. Yes. . . . The day I discharged him.
Q. And where was that conversation?
A. In the main electrical office.

. . . .

Q. Do you recall what if anything was said when you
met with Mr. Molaison in your office prior to telling him
he was discharged?
A. I asked him if he had gone to the restroom early to
wash up. And he said yes. . . .
Q. And did you say anything else?
A. I go, “I am discharging you. This is your third of-
fense. You are being terminated.”

Terry testified that there was a critical distinction between (1)
an employee’s going to the restroom in the 3:20 to 3:30 period
to “wash up,” which Terry did not permit without a supervi-
sor’s prior permission, and (2) an employee’s going to the rest-
room in the 3:20 to 3:30 period to urinate, which Terry did
permit, even without advance supervisory permission. As Terry
testified (vol. 93):

You know, if an employee told me, “Mr. Terry, I had
to relieve myself,” hey, I am not going to challenge that.
But to go there specifically to wash up, especially between
3:20 and 3:30, that is not in compliance with the rules.

I was constrained to ask:

JUDGE EVANS: So you make a distinction in that case
between urinating and washing your hands?
THE WITNESS: Absolutely. I would not accept a cita-
tion otherwise.

Terry approves or disapproves all electrical department warning
notices; by “accept,” of course, Terry meant that the warning
notice will be placed in an employee’s file. As Terry testified at
volume 94:

And if a foreman had a problem with an employee and
he questioned him when [he] came out of the restroom—
[And the foreman said to the employee:] “Man, I just saw
you washing up,” and the employee said, “Well, I know I
am supposed to be cleaning up my work area, but I had to
use the restroom.”
If my foremen ever wrote up a person for something
like that, I would reject it; I would not accept it.

And, as Terry was further asked and he testified on cross-
examination:

Q. [By Mr. Morgan]: Mr. Terry, in response to the
questions you were asked yesterday about washing up and
going to the bathroom, as I understand it, if an employee
has to go to the bathroom at Avondale, he can go to the
bathroom at any time during the day without supervisory
permission. Correct? . . .
THE WITNESS: In the Electrical Department, that is
true.

. . . .

Q. Is an employee permitted to wash his hands be-
tween 3:20 and 3:30 in the Electrical Department?
A. If an employee quit work and left his immediate
work area and did not clean his immediate area and went
during that time frame to the restroom specifically just to
go clean up at the end of the work shift, that would not be
acceptable.
Q. But if an employee had to go to the restroom and
urinate and thenwashed his hands after that between 3:20
and 3:30, you would not give that employee a citation,
would you?
A. No, I would not, Mr. Morgan.

Therefore, in the Electrical Department, according to its
“head,” Terry, the stated purpose for which an employee goes
to the restroom in the 3:20 to 3:30 period is critical.
Gerdes did not dispute Molaison’s testimony about what was
said when he (as opposed to Terry) discharged Molaison.
Gerdes additionally testified on cross-examination that, on June
4, while Molaison waited outside his office, he and Poche re-
viewed Molaison’s departmental file. Gerdes testified that
when he saw Molaison’s two prior warning notices he decided
to discharge Molaison; then he called Molaison into his office.
Gerdes was asked and he testified:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1132
Q. And tell us the conversation that took place once
you three men were in the office together.
A. The conversation went that he had to use the bath-
room and he was out of his work area and he was sweep-
ing up around it or something of that nature. . . . [I said to
Molaison, ] “You are an infraction of Company policy.
What do you have to say?” That is when he replied that he
. . . had to use the bathroom. And he was cleaning up in
that area.

. . . .

Q. And just so we are clear, only for that purpose,
when you—when Mr. Molaison told you he had to use the
bathroom, he told you in so many words he had to urinate.
Is that correct?
A. Yes.

Gerdes testified that he, and he alone, made the decision to
discharge Molaison; Gerdes testified: “And if I remember cor-
rectly, Mr. Terry came in the next morning [June 5], and him
and myself both signed [the ASI-22, form], and it went through
the channels. So that was it.” Finally on cross-examination,
Gerdes was asked and he testified:

Q. And you decided to fire Mr. Molaison?
A. Yes.
Q. And could you tell us why, sir?
A. Mr. Molaison was out of his work area twice, and
the third time, which would have been April, I think it
was—got a verbal warning. And the same occurrence oc-
curred again in June. At that point, he was terminated.

. . . .

(The reference to “April,” of course, was to the April 14 inci-
dent described above.)
Molaison’s Discharge—Credibility Resolutions
and Conclusions
The first issue is whether the General Counsel has presented
a prima facie case that Molaison’s discharge was imposed
unlawfully. On redirect examination, Gerdes denied knowledge
of Molaison’s prounion sympathies, something about which
Christiansen admitted telling his superiors. Again, as
Christiansen admitted, Molaison was an “outspoken” proponent
of the Union, he regularly wore prounion insignia, and he was
on Terry’s list of prounion supporters.104 I do not credit
Gerdes’s denial of knowledge of Molaison’s prounion sympa-
thies, and his denial contributes to my discrediting Gerdes
elsewhere. Molaison was one of the more active prounion em-
ployees, a fact that probably got his name placed on Terry’s list
of prounion employees; knowledge of Molaison’s union activi-
ties and prounion sympathies is clear. Respondent’s animus
was made clear in the June 1 speech by Respondent’s chief
executive, Bossier, who labeled such prounion employees as
Molaison “whiners, malcontents and slackers” who “want to
destroy Avondale,” simply because they did support the Union.
Moreover, such prounion insignia as Molaison displayed were
often made the objects of threats to employees, as I have found
above, or as I do find infra. In view of Respondent’s animus
toward the employees who favored the Union, especially those
who wore prounion insignia, I conclude that a prima facie case

104 As discussed above, Terry first admitted, then denied, that the list
that he maintained was of “prounion supporters.”
of unlawful discrimination against Molaison has been estab-
lished by the General Counsel, and the burden shifts to Re-
spondent to demonstrate by a preponderance of the evidence
that it would have taken the same action against Molaison even
in the absence of his known protected activities. Respondent’s
defenses must therefore be examined.
I do not believe Christiansen’s testimony that his entire crew
(or “group”) was assigned to the area of the helicopter deck.
Poche testified, about the helicopter deck: “. . . we are not as-
signed to clean that specific area.” I believe, and find, that, as
Molaison testified, Christiansen had given Molaison permis-
sion, individually, to be in the helicopter deck area, far away
from his work area in the bottom of the ship. (Molaison and
Christiansen are, or were, personal friends; very possibly
Christiansen gave Molaison permission to be on the helicopter
deck to give him a “jump” in getting off the ship immediately
at the 3:30 horn.) I also do not believe Christiansen’s testimony
that nothing was said (or that he could remember nothing that
was said) when Molaison exited the restroom. I also do not
believe Poche’s testimony that Molaison only told him that “he
went into the bathroom”; Poche could see that much when Mo-
laison exited the restroom. I believe, and find, that Molaison
told Poche that he had gone to the restroom to relieve himself
(albeit in common shop-talk vernacular).
Poche and Gerdes testified that it was an absolute rule that
employees were not to go to the restroom during the last 10
minutes of a shift without prior supervisory permission. Terry,
who is the departmental superintendent and should know its
rules, testified, however, that if an employee needed to use the
restroom to urinate during the 3:20 to 3:30 period he could do
so without prior permission of his supervisor.105 Specifically,
Terry testified that he would not “challenge” an employee’s
representation that he had needed to use the restroom during the
3:20 to 3:30 period. Terry further testified that he would not
accept a warning notice from one of his subordinate supervisors
if an employee had claimed that he had gone to the restroom in
the 3:20 to 3:30 period because he needed to urinate.
Terry testified that: (1) he made the decision to discharge
Molaison, without any participation by Gerdes; (2) Poche had
reported to him that Molaison had used the restroom to “wash
up” during the 3:20 to 3:30 period on June 3; and (3) Molaison
admitted to him in Molaison’s discharge interview that he had
used the restroom only to “wash up.” All of this testimony was
false. The decision to discharge Molaison was not made by
Terry; Poche did not make his report to Terry; the discharge
interview did not happen; and, most assuredly, Molaison’s
confession to Terry that he had gone to the restroom only to
“wash up” did not happen.
Poche and Gerdes testified that Poche reported Molaison’s
June 3 conduct to Gerdes, not Terry. Molaison, Poche, and
Gerdes testified that Terry was absent on June 4 and that Poche
brought Molaison to Gerdes, not Terry, for discharge. Molai-
son, Poche, and Gerdes testified that Gerdes, not Terry, dis-
charged Molaison. Finally, Gerdes testified that he made the
decision to discharge Molaison and he told Terry about it the
“next day.” That is, Terry created the report from Poche that
Molaison had gone to the restroom to “wash up” in the 3:20 to

105 The testimony by Gerdes and Poche, that prior permission is al-
ways required, not only conflicts with the testimony of Terry and a host
of other witnesses, it is belied by the fact that these construction em-
ployees do not always work along side their supervisors and their su-
pervisors are not always available between 3:20 and 3:30.
AVONDALE INDUSTRIES

1133
3:30 period; Terry created the discharge interview with Molai-
son; Terry created Molaison’s confession of going to the rest-
room solely to “wash up”; and Terry created his decision to
discharge Molaison as well as the reasons for that decision.
It is obvious that Terry created Molaison’s confession, and
all the rest, so that he could fit Molaison’s June 3 conduct into
his definition of a disciplinary offense. Terry is one of the most
important witnesses in this case, and he is, in my opinion, a
perjurer.106
I have credited Molaison’s testimony that, when he was con-
fronted by Poche on June 3, he told Poche that he had needed to
go to the restroom to urinate. In addition, Gerdes testified that
in the (actual) discharge interview Molaison told him that he
had gone to the restroom because he had needed to urinate.
This claim, Department Head Terry testified, is one that would
excuse an employee for going to the restroom between 3:20 and
3:30, even if the employee had not previously received the
expressed permission of his supervisor. That is, according to
Terry, Molaison did nothing wrong.
In summary, there was no published rule against electrical
department employees (or any other employees) use of the
restrooms in the 3:20 to 3:30 period, and General Offense-5 of
the Avondale Employees’ Guide seemingly permits employees
to do so. Molaison had not been told of any special electrical
department rule that prohibited employees from going to the
restroom during the 3:20 to 3:30 period. Moreover, under the
departmental rules as Terry stated them, Molaison did not en-
gage in any disciplinary offense on June 3 because he went to
the restroom to urinate, as Molaison had told both Poche and
Gerdes. Gerdes, however, discharged Molaison for doing ex-
actly that.107 Molaison’s discharge was therefore based on pre-
text because he had not committed a third disciplinary offense
within 12 months as Respondent contends.108 Finally, Molaison
was told by Gerdes that he was discharged because he had re-
ceived three warning notices within the preceding 12 months;
assuming that he did engage in some degree of misconduct,
Respondent has not demonstrated why Molaison was dis-
charged but at least 883 employees were allowed to accumulate
three warning notices, or more, within 12-month periods from
1990 through 1994 without being discharged, as demonstrated
in Marshall’s case. Therefore, Molaison was treated dispar-
ately, and his discharge violated Section 8(a)(3) on this account
also.
f. Vernon Charles’ discharge for loafing and having prior
warning notices
Vernon Charles (vols. 51, 158) was employed as an electrical
department helper until he was discharged on August 2, 1993.
The third complaint, at paragraph 10, alleges that by discharg-
ing Charles Respondent violated Section 8(a)(3). The General

106 To be sure, Terry’s is not the only case of demonstrated perjury.
See the listing in the case of alleged discriminatee (and demonstrated
perjurer) Octave Rouege, infra.
107 As I have found in the discussion of the allegations of par. 58 of
the second complaint, Gerdes later told his foremen that such monitor-
ing of the restrooms was a good way to retaliate against the prounion
employees because of the Union’s strong showing in the Board elec-
tion.
108 Actually, Respondent contends that there were four disciplinary
violations by Molaison within 12 months. Respondent includes, how-
ever, the April 14 event for which, as I have found, Molaison was not
warned; moreover, as Molaison credibly testified, Gerdes told him that
he was discharged for three, not four, offenses.
Counsel contends that Respondent discharged Charles because
of his known union activities and expressions of sympathy
which included his wearing prounion insignia and speaking
favorably about the organizational attempt during an employer
campaign meeting. Respondent does not deny that Charles’
immediate supervisor had knowledge of his prounion sympa-
thies, but it contends that Robert Terry, superintendent of the
electrical department and the supervisor who made the ultimate
decision to discharge Charles, had no such knowledge. Re-
spondent further answers that Charles was discharged solely
because he committed the disciplinary offense of loafing on
July 30 and he had received warning notices for two other of-
fenses in the preceding 12-month period. While not disputing
the validity of the prior warning notices, the General Counsel
replies that Charles was not loafing on July 30 and that any lack
of job performance by Charles on that date was caused by the
fact that he had been given an assignment for which he was not
qualified; to wit: serving as a leadman on a cable-pulling crew
even though he was only an inexperienced helper. The General
Counsel argues, therefore, that the defense, that Charles en-
gaged in misconduct on July 30, is pretextual. Alternatively, the
General Counsel answers that, even assuming that Charles had
validly been issued two warning notices during the 12 months
before July 30, and further assuming that he committed another
offense on that date, Charles was treated disparately because
other employees received three warning notices of the same
kind within 12-month periods without being discharged. Ulti-
mately, I find and conclude that Respondent has not demon-
strated that Charles was loafing on July 29, that the reason as-
signed for his discharge is a pretext, and that his discharge vio-
lated Section 8(a)(3).
During his first 3 years of employment with Respondent,
Charles worked in the paint department as a helper and forklift
operator. On September 3, 1992, a paint department warning
notice was issued to Charles for being “observed sleeping in
tank.” That warning notice concludes: “Violation of any other
Company rules or regulations will result in your termination.”
Despite this language of finality, Charles was not discharged
when he received a second paint department warning notice; to
wit: a November 18, 1992 warning notice for violation of the
Avondale Employees’ Guide’s General Offense-4, wasting
time; the supervisor’s comment on the warning notice includes
“Employee was lying down in the work area.”
On May 5 Charles was transferred to the electrical depart-
ment as a helper on an LSD under Foreman Adolph (Ace)
Riggins. Riggins reported to two general foremen, Mark Poche
and Jimmy Mancuso. Mancuso was the senior general foreman
on the LSD. Mancuso reported to Senior General Foreman (and
de facto Assistant Superintendent) Gerald Gerdes and Terry.
From May 5 until his discharge, Charles usually pulled electri-
cal cable on crews that did nothing else. Cable-pulling is physi-
cally arduous work, and it is complex. Cable-pulling is per-
formed according to diagrams and coded “point books” that
determine in which wireways throughout the ship that a cable
must be routed and secured before it is connected at a terminus.
As part of its established training program for electrical de-
partment employees, Respondent provides classes for helpers
that include, inter alia, instruction on cable-pulling.
Charles testified that he began wearing “Union-Yes” stickers
on his hardhat in May. According to Charles, about 2 weeks
before the June 25 Board election, he attended an employer
campaign meeting conducted by Riggins. At that meeting,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1134
Charles spoke up and said that he was going to vote for the
Union. Riggins did not deny that Charles spoke at an employer
campaign meeting and stated that he would vote for the Union
in the election. Moreover, Riggins admitted that Charles wore a
“Union-Yes” sticker on his hardhat as he worked. Such knowl-
edge is imputed to Respondent’s other supervisors who worked
around Charles, including Terry, who made the decision to
discharge Charles. Jenkins Index Co., 273 NLRB 736 (1984). I
discredit Terry’s denial of that knowledge. I find that, at the
time of his discharge, Respondent’s supervisors, including
Terry, had knowledge of Charles’ prounion sympathies.
Charles received an electrical department warning notice on
July 12. The notice states that it is for “interference with the
performance of an employee’s work duties. In reference to
GO–16–93.” GO–16–93 is a statement of policy against sexual
harassment, no copy of which was placed in evidence. The
warning notice concludes: “Final Warning.” the General Coun-
sel does not contend that by issuance of this warning notice
Respondent violated the Act.
At the time of the events in question, Riggins supervised
several crews that pulled cable on the LSD. During the week
that began on July 26, three leadmen reported to Riggins: Au-
brey Cheatham, Keith Riley, and Alton Williams. Cheatham
and Williams were mechanics; Riley testified that he had been
a helper, and leadman, since 1988. There was a great deal of
confusion in the testimonies about a sequence of events that
began on Thursday, July 29, and ended on Monday, August 2.
This confusion was caused by the fact that the three principal
witnesses who testified about what happened at the jobsite,
Charles, Riggins, and Poche, tended to combine the events of 2
days into one. As I discuss infra, the overall chronology is this:
(1) On Thursday, July 29, Williams took a vacation day, and
Riggins assigned Charles to work as a leadman with two other
helpers on a cable-pulling job. (2) On Friday, July 30, Williams
returned from his 1-day vacation, but Charles continued to act
as leadman; on that date General Foreman Poche ordered
Foreman Riggins to issue to Charles a warning notice because
of the lack of production that Charles’ crew had accomplished.
(3) On Monday, August 2, Charles was discharged and a crew
led by Cheatham completed the cable-pulling job that Charles’
crew had been assigned. (All witnesses agree that Riggins first
told Charles to serve as leadman on July 29; other than that
agreement, the testimonies of Charles, Riggins and Poche are
so badly confused about the dating of significant events that in
the following narrative, where I say that one of these witnesses
testified that something happened on the date of “X,” I thereby
indicate that the witness testified to something that happened on
a date that must have been “X.”)
Charles testified that at the start of the July 29 shift, Riggins
told him to act as a leadman on a crew of three employees (in-
cluding himself). Charles testified that he had never acted as a
“leaderman” (as he and other witnesses sometimes used the
term) before this assignment was given to him. Charles testified
(and documents discussed infra prove) that the two employees
whom Riggins assigned to work with him had been working in
the electrical department for only two days, both having trans-
ferred from another department. The assignment that Riggins
gave to the crew was to pull cable from the main deck of the
LSD up to the control room on the 06-level. Charles testified
that he had twice before helped pull cable from the main deck
of the ship up one level (to the 01-level), but never any further.
Charles protested to Riggins; Charles testified:

At that time, I told Ace that I didn’t know how to
pull—I didn’t want to be a leaderman, because I didn’t
know how to pull a cable, because I had barely been there
three months myself. . . . I told him that I didn’t know how
to read schematics or blue prints, because I haven’t been to
classes, because I haven’t had classes so you can under-
stand blueprints. . . . [and that] I didn’t get paid to be a
leaderman.

. . . .

[Riggins] said he wanted me to help them and assist the
two other guys to pulling the cable. . . . He wanted me to
be a leaderman and assist and help lead the cable with
these two new guys from the Shipfitting Department.

Further according to Charles, Riggins then “walked off.” (As I
find infra, Riggins did not just walk away; he took Charles to
Poche’s office.)
The two employees who were initially assigned to work with
Charles were helpers Matthew King and Darryl Bannister.
(Charles did not know the names of these two helpers. It is
certain that one of the two men was King because King ulti-
mately got a warning notice for his conduct on Charles’ crew.
Additionally, both Riggins and Charles testified that the two
employees who first assisted Charles had only been in the de-
partment for 2 days at the most. The personnel cards of all em-
ployees listed on Riggins’ MCR for July 29 were placed in
evidence. Those cards reflect that the only two employees who
had not been in the electrical department for at least several
weeks were King and Bannister. The personnel cards of King
and Bannister show that they were tacker-welders who were on
short-term “loans” from the shipfitting department.) At some
point later in the day of July 29, or possibly on July 30, Riggins
assigned employee Ray Benson to be the fourth member of
Charles’ crew. Like Charles, King and Bannister, Benson was
also classified as a helper, but Benson had come to the electri-
cal department on the same day that Charles did, May 6.
Charles testified that Riggins did not show him the routing
that the cable was to take on either day that he served as lead-
man. (Below, I find that Riggins showed Charles the routing
once.) According to Charles, on July 29, after he got the as-
signment to lead King and Bannister (and, later in the day, Ben-
son):

Me and the three other guys, the three other guys that I
was working we . . . we proceeded to run the cable, the ca-
ble route that I knew—as far as I knew how to run it to,
and we ran it from the main deck to the 01 level. Every-
thing was all right at that particular time [about 10:00
a.m.]. . . . [T]hen we proceeded to run it to the 02 level [by
2:30]. We ran into difficulties by crossing up the cable,
running it through another cable, so we had to pull the ca-
ble back, and then after we pulled it back from out the
ring, out the cross that we did, we ran it back, and it was
okay.

. . . .

At that time, I went looking for Ace Riggins.

Charles testified that he began to look for Riggins at that point
because he did not know how to get to the third level with the
wiring. Then, about 3:00, Riggins came to where the crew had
been working and, according to Charles:

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1135
Mr. Riggins said, “This is all the cable you have
pulled?”
And I told him, “Yes. We had to pull the cable back
because we ran into a little difficulties, so we had to pull
the cable back.”

. . . .

Ace Riggins asked, where was the other guys.

. . . .

I told him they went to the bathroom. And Ace Riggins
said, “When the other guys come back, I would like this
cable finished by 3:20.”

. . . .

Mr. Riggins walked off.

The other helpers returned from the restroom at 3:15. At 3:20,
the cleanup period began. When Charles went to sign out, he
told Riggins that the job was not finished. Riggins replied by
saying no more than “Okay.”
Further according to Charles, on Friday, July 30, Riggins as-
signed electrician Aubry Cheatham to work with his crew.
(Counting Charles, Benson, King, Bannister, and Cheatham,
this would have brought the crew complement to five. As I
discuss later, this testimony was not credible; Cheatham was
not assigned to the job until after Charles was discharged on
August 2.) With Cheatham on the crew, further according to
Charles, the job was finished by 3:20 that day. Charles testified
to no confrontation with Riggins on July 30.
Charles testified that when he signed in on Monday, August
2, Riggins presented him with a warning notice. The warning
notice is dated “7–30–93”; the box for “Other” Major Offense
is checked; the “Date and time of offense” space is completed
as: “7–30–93 [2:30] p.m.” The “Reason for Warning” section is
completed:

Failure to complete job assignment. Employee’s [sic]
was to finish running cables from main deck [description
of work]. I, A. Riggins, sup., went to employee work area
about [2:30] p.m. [I] walked [the] main deck stb. 29 [star-
board side, ship’s frame number 29] to 06-level [ship’s
frame number] 24, and all four workers were standing
around not doing anything. So I looked to see what all was
done and they hadn’t even completed one cable. So I said,
“this is all in seven hours?” So I went to Gen. foreman
Jimmy Mancuso to inform him of this matter.

Warning notices to two of the three other members of the crew
were placed in evidence, as discussed, infra. On Charles’ warn-
ing notice, but not the other two, is printed beneath the above-
quoted words, obviously in a hand other than Riggins’: “Unac-
ceptable Low Production.” As will be explained later, these
three words on Charles’ warning notice had been written by
Terry before Riggins presented it to Charles. The “four work-
ers” to whom Riggins referred were Charles, King, Benson and
Bannister.109

109 In surrebuttal, Riggins testified that he had assigned Bannister to
another crew on July 30. For the purposes of this narrative, this does
not matter; the fourth member of the crew may have been another em-
ployee, but I shall call him “Bannister” for convenience. The ultimate
significance is that, although the other members of Charles’ crew were
issued warning notices, Bannister (or whoever the fourth man in the
crew on July 30 was) was not.
When presented with the warning notice, Charles told
Riggins that he would not sign it, “because the accusations that
he wrote was false, that I didn’t know how to do it.” Charles
then proceeded to his work area. Charles testified that “a few
moments later” Riggins returned and told him that Poche
wanted to see him. Charles testified that he went to Poche’s
office. At some point while Charles was in Poche’s office,
Poche gave Charles an opportunity to write his comments on
the warning notice. Charles wrote:

I’m not going to sign this warning notice because I
told Ace Riggins that we had to pull our cable back. [As]
far as low production [goes], Ace gave me three new guys
from a different craft that don’t know anything about pull-
ing cable.

As noted, King and Bannister were from “a different craft,”
shipfitting; Charles considered Benson also to be an inexperi-
enced worker; the “new guys” could not have included
Cheatham, who was an experienced mechanic. Charles’ use of
the term “low production” in his “Employee Comment” dem-
onstrates that Terry had made his “unacceptable low produc-
tion” comment on the warning notice before Riggins presented
it to Charles. A point in Terry’s direct examination, as dis-
cussed below, fortifies this conclusion.
Poche took Charles to Terry’s office. Poche first went in to
confer with Terry. Then Charles was shown into the office
where Terry, Gerdes, and Poche were present. Further accord-
ing to Charles:

[A]nd he [Terry] was looking over my files, over my personal
files that I had while I was in the Paint Department. He said,
“You have been busy.”
Then he said, “If I was your foreman, a long time ago
you would have been fired.”

Charles further testified that Gerdes asked him why he had
written a comment on the warning notice but had not signed it;
Charles replied to Gerdes that neither he nor the other helpers
knew how to do the job. At that point, Terry called to have
Riggins report to his office. When Riggins arrived, further ac-
cording to Charles, Terry asked Riggins if Charles knew what
he was supposed to do. Riggins told Terry that he did. Further
according to Charles:

And then I said, “Ace, I told you that I didn’t know
how to run a cable, because I barely knew how to run the
cable, because I had been there for three months. And the
guys that you gave me was new and they didn’t know how
to run the cable neither.”

. . . .

At that time, Bob Terry told me to go wait in the other
room, so he could talk to Ace Riggins. A few moments
later, Mark Poche, Bob Terry, and Ace Riggins came in
the room where I was sitting there. Bob Terry said that,
“We looked over your files and I think we have to let you
go.” Then he looked at Ace Riggins and told Ace Riggins
to stop my time at 10:45 a.m.

Charles did sign out on Riggins’ MCR of August 2 (at 10:30),
and then he left the premises. Charles testified that, of the em-
ployees on his cable-pulling crew, he was the only one who
displayed union stickers.
Cheatham (vol. 56) was employed by Respondent from 1988
through October 1993, at which time he quit. Cheatham testi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1136
fied for the General Counsel that, as a third-class mechanic, he
often served as leadman on cable-pulling crews; he testified
that the ability to read schematics, as well as blueprints, is nec-
essary to serve as a leadman for cable-pulling. Cheatham testi-
fied that Charles worked as a helper with him, pulling cable,
during the 3 months of Charles’ employment in the electrical
department. Cheatham further testified that running cables up
from level-to-level (as Charles was assigned to do on July 29
and 30) is much more difficult than running them along one
level, or running them down from level-to-level. Cheatham
further testified about the complexities of pulling cable and the
fact that in his experience, first, second and third-class electri-
cians are usually used as leadmen; helpers or forth-class electri-
cians never are.
Cheatham testified that he could not remember Charles ever
working with him above the second level of a ship, although he
acknowledged on cross-examination that his pretrial affidavit
states that Charles “may have” run a cable to the 06-level once
before with Cheatham’s “direct supervision.” Cheatham further
testified that he was present on July 29 when Riggins told
Charles to act as leadman. He heard Charles protest his assign-
ment to act as leadman by saying to Riggins: “Look, I don’t
know enough to be a leaderman; I barely know how to pull
cable myself.”110
Cheatham testified that he saw the union stickers on Charles’
hardhat, as Charles claimed; Cheatham further testified that he
saw no helpers on the ship who wore union insignia, other than
Charles. This testimony was not rebutted, and was credible.
First-class electrician Donald Lund testified (vol. 60) that he
was sent to classes because cable-pulling is so complex. Cur-
rent employee Raymond Stewart testified (vol. 61) to the mani-
fold complexities involved in pulling cable, and to the fact that
usually the more experienced employees are assigned to lead
crews. The General Counsel further introduced exhibits that
show that attending cable-pulling classes is a regular part of an
electrician’s education. It is undisputed that Charles was never
sent to such classes. And, as will be seen, alleged discriminatee
Sidney Jasmine, a first-class electrician, was transferred from
skilled work to pulling cable because Terry wanted only ex-
perienced employees on the ship to which Jasmine was trans-
ferred.
Charles’ Discharge—Respondent’s Evidence
Riggins testified (vols. 76, 165) that, “three days before”
July 29, he assigned Charles to be a leadman on another job,
and Charles “did it perfectly.” Riggins further testified that as a
supervisor he had previously assigned two other helpers to lead
cable-pulling crews; these were Cheatham (before he became a
mechanic) and Riley. Riggins testified that when he assigned
Charles to act as leadman on July 29, he also assigned
Cheatham and Riley to act as leadman of other crews. Riggins
testified that he told Charles that he needed another crew, and
that he was choosing Charles to lead it because he was “one of
the older guys.” Riggins testified that, in fact, he had no other
employees who were more experienced than Charles to assign
to be the third leadman that he needed on July 29. Riggins testi-

110 On brief, in proposing a chronology different from that which I
have found herein, the General Counsel ignores testimony of his wit-
ness Cheatham that (1) on the second day that Charles acted as lead-
man, Cheatham worked in another part of the ship, and (2) Cheatham
was assigned to finish Charles’ assignment only after Charles was
discharged.
fied that, when he originally gave Charles the assignment to
function as leadman, he took Charles and “pinpointed” the job,
or “walked” the route that the cable was going to take to show
Charles where the cables would go. Riggins testified that after
he walked the route with Charles:

Charles said that he wasn’t experienced enough to go
on his own.

. . . .

I told Charles, “Charles, right now I have got too many
[inexperienced?] people and you are the next guy in line,
you were told that two weeks ago that you were going to
have your own crew.” . . .
So Charles . . . said, “I don’t want to do this nigger
job.” . . . And [Charles told me that] I am just a slave for
the white guy.

(Both Charles and Riggins are African Americans.) At that
point, Riggins testified, he told Charles to come with him to
Poche’s office. When they got to Poche’s office, Riggins did
not tell Poche (who is white) about Charles’ racial remark.
Riggins testified that in Poche’s office:

Mark [Poche] asked him [Charles] what was his prob-
lem, and he [Charles] said that he didn’t want to do this
kind of job, to send him back to where he came from [the
Paint Department], and Mark said, “Right now where you
came from the job is slow, that is why they sent you to us,
to hold your job; so you either have to do this job or you
don’t have a job because this is the only thing left what
you have to do.”

. . . .

Well, then Charles said he didn’t know what to do with
the cable, and I explained to Mark that I had pinpointed
him how the cable goes up to the 06-level. At that point
Mark told me to walk with him on the route again to show
him the run of the cable.

Riggins testified that he and Charles left Poche’s office, and he
then walked the route with Charles for a second time. When
they finished walking the route, further according to Riggins,
Charles “said everything was fine, he was going to do it.”
About 9, Riggins left Charles with Bannister and King to begin
the job.
Riggins testified that at the end of the day on July 29,
Charles’ crew had run one cable, of seven, to the 06-level, but
even that one cable was not tied down as it should have been.
According to Riggins: “I told Charles that he didn’t give me
enough productivity that day; one cable was not enough. . . . I
told Charles that his work was low production and, we couldn’t
tolerate that; this is the first warning, don’t let it happen again.”
Riggins further testified that Charles responded that he needed
more help.
Riggins testified that on July 30 he assigned one more man
to the crew and, “I even went back and showed him the route
again of the cable.” (This would have been, according to
Riggins’ testimony, the third time that Riggins showed the
cables’ routing to Charles.) The additional man was Benson
and, whether Benson was assigned to Charles’ crew later on
July 29 (as Charles testified) or early on July 30 (as Riggins
testified), the crew then consisted of four men; these were
Charles, Bannister, King and Benson. Again, all four employ-
ees were classified as helpers by Respondent.
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1137
Riggins testified that about 2:30 on July 30, he went to the
06-level and found all four members of Charles’ crew just do-
ing nothing but talking, or “standing around,” as Riggins wrote
on the above-quoted warning notice that was issued to Charles.
Riggins further noted that Charles’ crew had only pulled one
more cable to the 06-level, and that cable, like the one that
Charles’ crew had pulled to the 06-level on July 29, was lying
on the deck, unsecured. Riggins testified that he asked Charles
what the problem was and Charles replied that it was “too hot.”
Riggins further testified that he then told Charles to gather his
tools and come with him to Poche’s office.
Riggins testified that, when he and Charles met with Poche
on July 30, he recommended to Poche that Charles be dis-
charged and that the other three crew members (Bannister,
King, and Benson) be given warning notices. This testimony
was contradicted by both Poche and General Foreman Man-
cuso, as discussed below, and I found it incredible. Poche
testified that he did meet with Riggins on July 30, but Charles
was not there. Poche further testified that Riggins did nothing
more than report the incident to Poche, and he (Poche) made
the decision to issue a warning notice to Charles, but not the
other crew members.
Riggins further testified that when he left the meeting with
Poche, he drafted and issued warning notices to the three other
members of Charles’ crew. Respondent’s counsel, however, did
not show any warning notices to Riggins as he was testifying.
This was no oversight. Warning notices to Charles, Benson,
and King were offered by Respondent through Mancuso when
he testified after Riggins, Poche, and Terry. Respondent did not
offer a fourth warning notice, which warning notice would have
been issued to Bannister (or some other employee if I am incor-
rect in my conclusion that the fourth member of the crew on
July 30 was Bannister). Respondent has suggested no reason
why, if the fourth warning notice was actually issued, it did not
offer a copy of it in evidence. As I find infra, the fourth warn-
ing notice was never issued.
Riley (vol. 80) testified for Respondent that he was present
when Riggins initially assigned Charles to be leadman. Riley
testified that Charles replied that he was not a leadman and
added: “You ain’t using me as a house nigger.” Riley further
testified that at the end of the workday of July 29, he inspected
the work that Charles’ crew had done. Riley testified that he
found that none of the cables had been pulled above the 01-
level. (This would have been less work than that described by
Riggins, and I discredit Riley’s testimony on this point.) Fi-
nally, Riley testified on direct examination that it was on “about
the third day” of his employment that he was first assigned to
be a leadman, and he continued to lead cable-pulling crews
thereafter. On cross-examination, however, Riley testified that
it was 30 days after he was hired that he was first made a lead-
man; in view of the fact that being a leadman on a cable-pulling
crew has at least some complexity, the latter estimate is un-
doubtedly closer to the truth. (Even then, there was no testi-
mony that Riley’s first cable-pulling job approached Charles’ in
terms of its complexities.)
Poche testified (vol. 77) that his first encounter with the
problem was when Riggins brought Charles to his office on
July 29 and:

Mr. Riggins explained to me that he [Charles] didn’t
want to pull cable, he didn’t understand the cable from
how to be pulled. He just didn’t want to do it; he wanted to
do something else.
I explained to Mr. Charles that at the state of the ship
we were in, that is the only thing we had to do was pull
cable.

. . . .

[Charles responded only that] he didn’t understand
how to do it, and I asked Mr. Riggins if he had explained it
to him, and he said, yes, he did. He had showed him the
route of the cable, where the cable went. I again told Mr.
Riggins to go once more and show the man exactly where
the cable goes, how to pull it, where to tie it, and for him
to do the work.

Poche was led to denials that Charles claimed that he did not
have enough experience to pull the cable. Assuming that this
was a denial that Charles claimed that he did not have enough
experience to act as leadman, Poche nevertheless knew that
Charles was making that claim. Poche admitted that Riggins
told him that Charles was claiming that “he didn’t understand
the cable from how to be pulled.” This was a claim that would
be made only by someone who had been placed in the position
of leadman, as Poche assuredly knew.
Poche further testified that during the afternoon of July 30,
Riggins came to him and reported how many feet of cable that
Charles’ crew had pulled, and, according to Poche: “When he
told me how much cable was issued, I told him to issue a cita-
tion for lack of production.” Poche did not testify that, on July
30: (1) Riggins brought Charles to his office, or (2) Riggins
first suggested that he was going to issue a warning notice to
Charles, or (3) Riggins said that he was recommending dis-
charge for Charles, or (4) Riggins told him that he intended to
issue warning notices to the three other members of the crew.
Riggins’ testimony to these four points is therefore uncorrobo-
rated, and it is incredible.
Poche was asked and he testified:

Q. Now, when you told Mr. Riggins to issue Mr.
Charles the citation, what were the specific factors for
making that recommendation?
A. The amount of work that was done and the amount
of time used.

Poche repeated this answer twice. It is first to be noted that
Poche did not testify that Riggins reported to him that Charles
or his crew was “standing around,” or otherwise loafing. It is
further to be noted that Poche did not testify that he ordered
Riggins to issue a warning notice to Charles because of what
Charles, alone, had done, or not done; Poche invoked the pas-
sive voice (“work that was done”) to indicate that he was hold-
ing Charles responsible for the work product of the entire crew.
Poche testified on direct examination that on August 2 he
took Charles to Terry’s office because Charles’ warning notice
was for “lack of production.” (There is no testimony that Terry
wanted employees brought to him when a notice is issued for
“lack of production”; nevertheless, this testimony makes clear
that it was Poche who brought the matter to Terry’s attention;
Terry claimed that he could not remember which supervisor did
so.) Poche testified that he conferred with Terry first; then
Charles was called into Terry’s office. According to Poche,
Terry first asked Charles if he had been shown what he had to
do; Charles admitted that he had. Then, according to Poche,
“Mr. Terry explained to him it was totally unacceptable the
amount of production that was done in the time frame, and that
he was going to be terminated for lack of production.” Poche
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1138
denied that, in Terry’s office, Charles claimed that he did not
have the experience “to pull the cable.” He did not deny that, as
Charles testified, when Riggins arrived at Terry’s office during
the discharge interview, Charles told Riggins that: “And the
guys that you gave me was new and they didn’t know how to
run the cable neither.”
At the conclusion of his direct examination about what hap-
pened in Terry’s office, Poche was asked and he testified:

Q. Did you recommend termination [of Charles]?
A. Yes, sir.
Q. And why did you recommend termination?
A. Due to the extent of the nature of the violation, lack
of production and unfair cost to the Company.

On cross-examination, however, Poche was asked and he testi-
fied:

Q. What was the reason that you recommended the
discharge of Vernon Charles?
A. I didn’t recommend the termination of Vernon
Charles.
Q. You didn’t?
A. No, sir. If I had made a recommendation, it would
have been so noted on the citation.

Poche also denied seeing the “Union-Yes” sticker that Charles
maintained on his hardhat.
Terry (vol. 91) testified that:

I received a citation from my supervisors, and also a
phone call to the effect that the previous day Mr. Charles
and another group of Electrical Department employees—a
total of four people—had spent approximately 32 man-
hours and not accomplished any meaningful work. And I
was very concerned about that.

. . . .

I told the supervisor to bring the employee to the main
electrical office.

Terry testified that he could not remember who the “supervi-
sor(s)” was (or were). I find that the telephone call came from
Poche, as indicated above. (This testimony that Terry received
the warning notice and the telephone call separately, and before
Charles came to his office, explains how Charles could have
made his argument to Poche that a criticism of “low produc-
tion” was not warranted. It is apparent that Terry made his “un-
acceptable low production” comment on the warning notice and
then sent it back to Poche for issuance to Charles before Terry
met with Charles. Therefore, Terry’s testimony, as quoted be-
low, that he made the comment on the warning notice while
Charles was in his office was, at least, incorrect.)
Terry testified that, while reviewing the warning notice that
had been sent to him by the supervisor (Poche), he noted that
the period of low productivity would have been 28 man-hours
over a 7-hour period for the four men on Charles’ crew, not 32
man-hours over a 8-hour period, as the warning notice origi-
nally indicated, but he still considered the crew’s performance
to be substandard.111 Terry testified that he called for Charles’
personnel file and noted:

111 In advancing a chronology different than that which I have found,
the General Counsel argues on brief that Terry’s arithmetic somehow
indicates that Charles served as a leadman for only one day before
Cheatham took over. As well as ignoring Cheatham’s testimony, as

It [Charles’ July 12 Electrical Department warning no-
tice for sexual harassment] was a final112 warning, number
one, that had been issued to the employee during the time
period he had been in the Electrical Department, which I
think was approximately three months. The employee was
a transfer from the Paint Department, and when I looked
for currency within the last twelve-month period, there
were two or more citations that were issued to the em-
ployee by the Paint Department for the same or similar
type offenses . . . [t]hat being deliberate loafing, out of the
work area, intentional negligence, things of that nature. . . .
And in my mind, there was a pattern here. This fit the pat-
tern.

Terry further testified that Riggins, as well as Poche, brought
Charles to his office. Terry testified that he first conferred sepa-
rately with Poche and Riggins; because of Charles’ comments
on the warning notice, he asked if Charles had been properly
lined up. Riggins and Poche assured Terry that Charles had
been. Then Terry called Charles into his office and:

He [Charles] said that the supervisor had given him
three people to work with him that weren’t qualified to
pull cable. They were new. And that he went to—after he
was lined up, that he went to pull the cables. There was a
group of cables, and he got in trouble with the first cable
and he had to end up pulling it back and that is why he
didn’t make any real progress with a full-man cable crew.
And I asked him, “Well, what about the standing
around not working thing [that Riggins had alleged on the
warning notice]? Your foreman goes back to check on
you. You are standing around not working. If you had a
problem with the cable pulling, you should [have] con-
tacted your foreman to point the problem out so that he
could have assisted you. But to . . . spend 28 hours of pro-
duction and not get any meaningful work accomplished is
unacceptable. I cannot accept that.”
I wrote “unacceptable, low production” on it [the
warning notice].

(Again, it is clear that Terry had written those three words on
the warning notice before Poche presented it to Charles, not in
this discharge interview.) Terry testified that he considered
Charles’ September 3, 1992 paint department warning notice
for sleeping, and Charles’ November 18, 1992 paint department
warning notice for wasting time to be of “similar type” to the
offense listed on Charles’s warning notice of July 30, “Failure
to complete job assignment.” Terry testified that he decided to
discharge Charles “due to the fact that the employee had two
final warnings in there [in Charles’ personnel file]. One from
the Electrical Department, one from the Paint Department. Had
three or more current within a twelve-month period warning
notices for the same or similar type of offenses.” Terry also
testified on direct examination that the detail of the warning
notice gave him enough information to know that the assign-
ment that Charles had been given was not difficult, and could
be done by a helper.

discussed above, the General Counsel ignores the fact that Respondent
does not attempt to justify Charles’ warning notice and discharge on the
basis of his crew’s performance on July 29 as well as July 30.
112 The Tr., Vol. 91, p. 21,079, L. 4., is corrected to change “file” to
“final.”
AVONDALE INDUSTRIES

1139
On direct examination Terry placed Riggins at the discharge
interview, from the start of that interview. Of course, neither
Poche nor Riggins placed Riggins at the interview, and Charles
testified that Terry called Riggins to the interview after it had
started. These differences are important because Charles
claimed that Riggins was called to the interview because he
(Charles) was claiming that he did not have enough experience
to serve as leadman. In order to test Terry’s testimony on this
point, as well as other points that Terry had made on direct
examination, the General Counsel asked Terry on cross-
examination, and Terry testified:

Q. At some point in time, you talked to Vernon
Charles before you discharged him. Is that correct?
A. I don’t recall.

That is, after detailing the discharge interview on direct exami-
nation, including his testimony of Charles’ alleged acknowl-
edgment that he had been “lined up” correctly, Terry dis-
claimed any memory of the discharge interview. Later, the
General Counsel tried again:

Q. [By Mr. Morgan]: You had a meeting in your office
before you discharged Mr. Vernon Charles with Mr. Poche
or Mr. Riggins. Correct?
A. I really don’t recall that meeting, Mr. Morgan.
Q. So is your testimony here today that you don’t re-
call any meeting with either Mr. Poche or Mr. Riggins in
your office before you discharged Vernon Charles?

. . . .

THE WITNESS: I don’t recall speaking to Mr. Charles. I
am not positive, but I think I spoke to Mark Poche. I am
not positive on it, though.
Q. [By Mr. Morgan]: And when we are—I want to be
clear here, Mr. Terry—we are talking about before you
discharged Vernon Charles, in your office do you have
any remembrance of speaking with either Mr. Mark Poche
or Mr. Ace Riggins?
JUDGE EVANS: Or both at the same time.
Q. [By Mr. Morgan]: Or both at the same time?
A. I am a little vague on this one. I don’t have a mem-
ory on that.

Then, again:

Q. At any time before you discharged Mr. Vernon
Charles on July 30, did you have any opportunity to talk to
him that you remember?
A. I do not recall speaking to Mr. Charles.

And, still later in the examination:

Q. [By Mr. Morgan]: Do you—did you ever meet Mr.
Vernon Charles, sir?
A. I don’t recall speaking to Mr. Vernon Charles.
Q. Okay.
A. I do not know Mr. Vernon Charles.

Terry made these disclaimers of recollection of knowledge on
the same day of trial that he completed his above-quoted direct
examination about the discharge interview with Charles, in-
cluding Charles’ admission of being lined up correctly for the
job to which he had been assigned.113 By this I-don’t-remember

113 And, as I have also found, Terry was consulted about the Charles
matter even before Riggins issued the warning notice; otherwise Terry
tactic Terry successfully insulated himself from cross-
examination about Charles’ case, and it is a factor which con-
tributes to my conclusion that Charles’ testimony about what
was said during the discharge interview must be credited. Other
factors are Charles’ credible demeanor on the point and the
proven unreliability of Terry’s testimony (as demonstrated
especially in the case of discriminatee Molaison) and the
proven unreliability of Poche’s testimony (as demonstrated
especially by his claim, and denial, that he recommended the
discharge of Charles).
As previously noted, Poche was Charles’ general foreman at
the time in question. Mancuso was the ship’s general foreman,
over Poche. Mancuso testified (vol. 131) that, at some point in
time that he could not recall, Riggins told him about, and
showed him, some work that Charles had done (or not done).
Mancuso further testified that Riggins told him that a warning
notice was being issued to Charles; Mancuso testified that he
told Riggins that he agreed that a warning notice should be
issued to Charles. (Riggins did not testify about this exchange;
Mancuso’s testimony would explain the reference to Mancuso
that Riggins made on Charles’ warning notice.) Mancuso fur-
ther testified that, at some time “later on,” he received a tele-
phone call from Terry. According to Mancuso: “He [Terry] told
me that Mr. Riggins had to give a citation to the rest of the
people also; he couldn’t just give it to Mr. Vernon Charles; and
told me to tell Mr. Riggins to write them up.” Mancuso testified
that did not know how long it was after Riggins told him that
Charles was receiving a warning notice that Terry called him
and ordered warning notices to be issued to the other members
of the crew. Terry testified before Mancuso, and he did not
testify about this telephone call.
Mancuso testified that, after Terry called him, he told Rig-
gins to issue warning notices to the other members of Charles’
crew. (This testimony impeaches Riggins’ testimony that, as
soon as he left the meeting with Poche, he drafted and issued
the warning notices to the other members of the crew.)
Mancuso identified two warning notices that were issued pur-
suant to Terry’s instructions, one to Benson and one to King.
Benson’s and King’s warning notices are not carbon copies or
photocopies, but, except for the “unacceptable low production”
remark that Terry testified that he wrote on Charles’ warning
notice, the wording on Benson’s notice and King’s notice is the
same as the wording on Charles’ warning notice (even down to
the same strike-over of the word “the” and insertion of the word
“this” in the final sentence). Like Charles’ warning notice, the
spaces for “Date and Time of Issuance” in Benson’s and Kings’
warning notices are left blank. On the copies received in evi-
dence, Riggins signed the warning notices as supervisor, and
Mancuso signed as the witness. Mancuso identified Riggins’
signature on Benson’s and King’s warning notices. (Respon-
dent had called Riggins to testify before Mancuso, but Respon-
dent did not show Riggins any warning notices. Therefore,
Riggins’ bare statement that he had issued warning notices to
all four members of Charles’ crew, which would have included
Bannister, then went unchallenged.)
On cross-examination (vol. 141) Mancuso claimed total lack
of memory about when it was that Terry told him to have warn-

would not have been able to write on Charles’ warning notice “unac-
ceptable low production,” and Charles would not have been able to
respond to that notation in his written “Employee Comment” on the
warning notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1140
ing notices issued to other members of Charles’ crew; Mancuso
even claimed lack of memory as to whether it was before or
after Charles’ discharge. Also on cross-examination, Mancuso
testified that his foremen typically decided who was going to
lead cable-pulling crews on the basis of who was experienced
and who could “catch on to the drawings.” On redirect exami-
nation Mancuso testified that he would expect a foreman to
choose, “[t]he person that would show the most initiative, you
know, interested in the job, whether it be a helper or a me-
chanic.”
Charles’ Discharge—General Counsel’s Rebuttal Evidence
In addition to Mancuso, several other electrical department
foremen and general foremen (including de facto Electrical
Department Assistant Superintendent Gerdes) agreed during
their cross-examinations that they would prefer to, and would if
they could, assign more experienced employees to serve as
leadmen on cable-pulling crews. General Foreman Henry
McGoey (vol. 118) testified that cable-pulling crews had to
have mechanics, as well as helpers; as McGoey put it:

Well, I mean, I am not saying that, you know, you are
using mechanics 100 percent of the time. You have got to
mix and match, you know. You can’t just put all helpers.
You can’t put all helpers on cable, or you will be doing it
two and three times.

Riggins testified that, although Charles had only 2 months’
experience at cable-pulling, that was the most of any of his
helpers, and Riggins testified that he had no other mechanics
available to lead the third crew on July 29 and July 30. In rebut-
tal, the General Counsel introduced the personnel cards of the
employees who where listed on Riggins’ MCR for July 29;
these cards show that on Riggins’ July 29 MCR there were
other helpers and mechanics who had worked longer than
Charles in the electrical department, and presumably had more
cable-pulling experience. However, in surrebuttal, Riggins
testified (vol. 165) that during the week of July 26 he carried on
his MCRs the crew of Foreman Sam Le who was on vacation,
and he could not assign those other employees to any jobs be-
cause they had been assigned to a “special” job before Le went
on vacation. There was no corroboration for this self-serving
testimony about the “special” job which prevented Riggins
from assigning one of the others to be leadman, and I do not
believe this testimony by Riggins.
Charles’ Discharge—Remaining Credibility Resolutions
Charles testified that he had never acted as a leadman, but
Riggins testified that Charles had served “perfectly” as a lead-
man during the preceding week. Riggins testified that, when
Charles resisted the assignment on July 29, he told Charles,
“[Y]ou are the next guy in line, you were told that 2 weeks ago
that you were going to have your own crew.” Riggins did not
testify that he replied to Charles that Charles had, once before,
served as leadman (“perfectly” or otherwise). If Charles had
served as a leadman before, Riggins would assuredly have re-
minded Charles of it, and Riggins would have so testified. I
credit Charles that he had not, before July 29, served as a lead-
man.
Riggins appeared to be ready to say most anything about
Charles; at one point, he testified that part of the reason that he
recommended Charles’ discharge was that Charles kept things
“stirred up . . . and he really had the crew out of control.” This
point went undeveloped on direct examination, and Riggins did
not reassert it on cross-examination. Further, as noted above,
Riggins testified that he went to Poche and told Poche that he
wished to discharge Charles and issue warning notices to the
members of Charles’ crew; Poche, however, did not testify that
Riggins made such recommendations, and Mancuso testified
that he told Riggins to issue the warning notices to the remain-
ing members of Charles’ crew only after Terry ordered it.
Riggins’ willingness to lie under oath was clear.
In rebuttal, Charles disputed the testimony of Riggins and
Riley that he had used racial terms to protest his assignment to
Riggins on July 29. I have just stated what I thought of Riggins’
credibility. In his testimony about Charles’ racial statement,
Riggins was corroborated by Riley, but I have previously dem-
onstrated that Riley is not a reliable witness. I credit Charles’
denial.
When called in rebuttal, Charles did not deny being taken to
Poche’s office on July 29; therefore, there is no issue about
what was said there: Poche told Charles that cable-pulling work
was all the work that there was for Charles to do. Riggins testi-
fied that Charles also told Poche that “he didn’t know what to
do with the cable”; Poche testified that Charles said, “[H]e
didn’t understand the cable from how to be pulled.” Knowledge
of what to do with the cable is an issue only for someone who
had been appointed leadman; that is also why Charles, and not
some other member of the crew, was shown the route by
Riggins. I find, based on Poche’s and Riggins’ testimonies, that
Charles protested being a leadman on his expressed feelings
that he did not have enough knowledge and experience to be
leadman.
I further find that on the morning of July 29 Poche told
Riggins to walk the route with Charles; Riggins did so after the
meeting with Poche. Contrary to Charles’ testimony, I find that
Riggins did show him the cable-routing; contrary to Riggins’
testimony, I find that Riggins only showed Charles the routing
once. Charles began complaining about the assignment as soon
as he got it; Riggins took him immediately to Poche without
taking time to walk the route with the employee. Riggins did
not show Charles the route for a third (or second) time on July
30; even according to Riggins’ testimony, Charles was not then
complaining about the assignment, or then disclaiming knowl-
edge of how to do it, and there would have been no point in an
additional demonstration.
There is a credibility resolution to be made whether, at the
end of the day on July 29, Riggins warned Charles about get-
ting more done (as Riggins testified) or he just said “O.K.” to
Charles’ report of poor progress (as Charles testified). If
Riggins had felt the necessity of warning Charles at the end of
the day on July 29, he would have checked on Charles and his
crew before 2:30 on July 30, which is all he did. I credit
Charles.
I find that on the afternoon of July 30 Riggins went to the
06-level and found that Charles’ crew had pulled only one more
cable, but it (like the cable that had been pulled to the 06-level
on July 29) had not been tied down. Riggins also found Charles
and the crew standing around; Charles excused that conduct
only by saying that it was hot.114 Riggins then went to Poche,
but, as I further find, he did not recommend discharge of
Charles and he did not recommend that warning notices be
issued to the other three members of the crew. Poche decided

114 Although he was called in rebuttal, Charles did not deny Riggins’
testimony in this regard.
AVONDALE INDUSTRIES

1141
that Charles, and only Charles, should receive a warning notice
because of the lack of performance of the entire crew, and he
told Riggins to draft it. After getting that instruction from
Poche, but before he drafted the warning notice, Riggins went
to get confirmation from the ship’s general foreman, Mancuso.
On Monday, August 2, Poche gave (or sent) Riggins’ draft of
Charles’ warning notice to Terry for review; Terry added “un-
acceptable low production” to the warning notice and gave (or
sent) it back to Poche; Poche gave the warning notice to
Riggins who presented it to Charles. Charles refused to sign the
warning notice and Riggins took him to Poche. In Poche’s of-
fice, Charles wrote a comment that he had to pull a cable back
and that the help he had was totally inexperienced. Poche then
took Charles to Terry’s office where, as Poche admitted on
direct examination (although not on cross-examination), he
recommended discharge of Charles.
When Charles first got the assignment, when Riggins first
brought Charles to Poche, when Poche presented the warning
notice to Charles, and when Charles was brought to Terry for
discharge,115 Charles protested that he did not know how to
serve as leadman and that two of the employees who had been
assigned to him only had 2 days’ experience in the electrical
department. Poche denied that Charles made this protest to him,
but he admitted that Charles had said that “he didn’t understand
the cable from how [it was] to be pulled.” Moreover, Poche
would not have ordered Riggins to walk the routing with
Charles (a second time, according to Respondent’s testimony)
if Charles had not been making such a protest to him. Terry (on
direct examination, although not on cross-examination) denied
that Charles claimed insufficient knowledge and experience in
the discharge interview, but Charles had made exactly that
point in his “Employee Comment” on the face of the warning
notice, and Terry would not have asked Poche if Charles knew
what to do if Charles had not been claiming that he did not
know what to do. I find that, from Riggins to Poche to Terry,
Charles claimed that he did not have enough knowledge or
experience to serve as leadman.
At some point after Charles was discharged, warning notices
were drafted for two of the three other members of his crew; no
warning notice was drafted for Bannister. The General Counsel
introduced the personnel cards of all of those employees listed
on Riggins’ MCRs for July 29 and 30. Only the personnel cards
of Charles, King and Benson reflect the issuance of a warning
notice dated July 30 (or any time thereabouts). Specifically,
Bannister’s personnel card does not list receipt of a warning
notice on or about that date. The fourth warning notice simply
was not issued even though, as Riggins stated on the warning
notices to Charles, King, and Benson, “all four workers was
standing around not doing nothing.” (Emphasis added.) In view
of this documentary evidence and Respondent’s failure to in-
troduce a warning notice to Bannister,116 or explain why it did
not offer into evidence a copy of a notice that was given to
Bannister, I discredit Riggins’ bare testimony that he issued
warning notices to all four employees involved. (As mentioned

115 Although Gerdes testified, he was not asked about being at the
discharge interview as Charles had testified. I draw the inference that
he would have testified consistently with Charles about what was said
in the discharge interview.
116 It is to be noted that Respondent offered all warning notices that
were supposedly issued in the case of alleged discriminatee Donald
Thompson, infra, whose circumstances of discharge were essentially
the same as those of Charles’.
above, in surrebuttal, Riggins testified that Bannister could
have worked with Cheatham on July 30; if so, the fourth warn-
ing notice should not have gone to Bannister, but it should have
gone to some employee because, again, Riggins’ testimony was
that Charles had three other employees with him on July 30,
and the warning notices that were issued refer to the “four
workers” on Charles’ crew.)
Charles’ Discharge—Conclusions
From the time that he was transferred to the electrical de-
partment on May 5 through the date of his discharge, Charles
wore prounion insignia on his hardhat, and he was the only
subordinate of Riggins who did. Additionally, Charles spoke up
at an employer campaign meeting that Riggins conducted in
June and said that he was going to vote for the Union in the
June 25 Board election. I have found that all of Charles’ super-
visors, including specifically Terry, knew of Charles’ prounion
sympathies. Knowledge of Charles’ prounion sympathies is
thus established. Respondent’s animus was made clear in the
June 1 speech by Respondent’s chief executive, Bossier, who
labeled such prounion employees as Charles “whiners, malcon-
tents and slackers” who “want to destroy Avondale,” solely
because they did support the Union. Moreover, such prounion
insignia as Charles displayed were often made the objects of
threats to employees, as I have found above, or as I do find
infra. In view of Respondent’s animus toward the employees
who favored the Union, especially those who wore prounion
insignia, I conclude that a prima facie case of unlawful dis-
crimination against Charles has been established by the General
Counsel, and the burden shifts to Respondent to demonstrate by
a preponderance of the evidence that it would have taken the
same action against Charles even in the absence of his known
protected activities. Respondent’s defenses must therefore be
examined.
Cable-pulling is complex (as well as arduous), as the General
Counsel’s witnesses credibly testified (and as Respondent’s
witnesses essentially agreed). Its complexity is necessarily part
of the reason that Respondent’s training program for electrical
department employees has a segment for cable-pulling. Charles
was not given the benefit of that program before he was told to
be a leadman. Mancuso testified that he would expect his fore-
men (such as Riggins) to chose the most experienced employ-
ees available to lead cable-pulling crews. On redirect examina-
tion Mancuso also testified that he would expect one of his
foremen to chose as a leadman: “The person that would show
the most initiative, you know, interested in the job, whether it
be a helper or a mechanic.”
At minimum, Charles was not “interested” in the job; in fact,
he protested doing it strongly.117 Moreover, Charles was not the
most experienced employee available to lead the crew; others
(who usually worked on Foreman Le’s crew) were available on
July 29 and 30. Additionally, on July 30 Leadman Williams
had returned from his 1-day vacation and was available, but
Riggins assigned Williams to do something alone. That is, even
if there had not been available a more experienced employee to
serve as the third leadman on July 29, there was one on July 30,
Williams. The General Counsel argues that Charles was se-
lected to do a job that Respondent’s supervisors knew he could

117 Perhaps helper Riley had demonstrated the required interest when
he began leading cable-pulling. It is also more than likely that a super-
visor stayed with Riley for at least part of his first assignment as a
leadman.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1142
not do, and then they discharged him when he did not do it. In
view of the testimony of the General Counsel’s witnesses and
the cross-examinations of Respondent’s supervisors, other than
Riggins, there is the strongest support for the conclusion that
Charles’ original selection as leadman was spurious; however, I
need not decide. It is quite clear, and I do find, that on July 30
Charles was maintained on the job as leadman, over his pro-
tests, for spurious reasons. Riggins saw on July 29 that Charles
was not getting the job done. But when experienced Leadman
Williams reappeared on July 30, Riggins did not put Williams
back in his leadman slot; instead, Riggins found other work (of
no expressed urgency) for Williams to do by himself and left
Charles struggling to serve as leadman. Then Riggins failed to
check on Charles until late in the afternoon. There is no reason
for this failure other than that Respondent was looking for a
putative justification for discipline of Charles. Even if, as
Riggins testified, Charles said on the morning of July 30 that he
thought he could do the job, what Riggins had seen on July 29
told him that, if his real objective had been production, he
would have checked on Charles before late in the afternoon of
July 30. I find that, absent his wearing prounion insignia and
absent his expressed intention to vote for the Union in the
Board election the month before, Respondent would not have
assigned Charles to be a leadman on July 29; alternatively, even
if that assignment was legitimate, absent his prounion sympa-
thies Respondent would not have kept Charles on the job as
leadman after Williams returned to work on July 30.
Riggins testified that when he did check on Charles’ crew on
July 30 he saw them standing around. Riggins did not testify
that he knew if the crew had been standing around more than
momentarily, and there is no evidence that they did. Where an
employer has no established breaks, at least momentary periods
of standing around are to be expected, as Riggins assuredly
knew. Moreover, if the element of standing around were the
basis of the warning notice, even in part, Riggins would have
mentioned it to Poche and he would have issued warning no-
tices to all (four) members of the crew without being told to do
so by Terry, through Mancuso. (Again, Riggins lied when he
testified that he recommended to Poche that Charles be dis-
charged and warning notices be issued to all other members of
the crew, as Poche’s testimony demonstrated. Riggins further
lied when he testified that he issued the warning notices imme-
diately after his conference with Poche on either July 30 or
August 2.) I find that Charles’ alleged “standing around” was
not part of the real reason that his warning notice was issued; to
the extent it was at least a part of the real reason, it was pretex-
tual. Finally on this point, assuming that to some extent Charles
and the other three employees on his crew were loafing, Re-
spondent suggests no reason why Bannister was not issued a
warning notice.118 Charles was treated disparately because only
he and two of the other three employees on the crew were is-
sued warning notices, and those two others were issued warn-
ing notices only as an afterthought by Terry who told Mancuso
(who told Riggins) to issue those warning notices.
When asked on cross-examination why, before Terry’s order,
he had thought that Charles should get a warning notice, but the
other members of the crew should not, Mancuso testified,
“Probably at the time when I was thinking that he was the
leadman, and he should have known better.” There is other

118 On brief, Respondent does not mention the other crew members
or the warning notices that were issued to two of the three of them.
evidence that Charles was being held accountable as a leadman.
The warning notice to Charles charged all hours of the crew
against him.119 Moreover, Poche testified that he ordered the
warning notice to Charles because of “The amount of work that
was done and the amount of time used.” Clearly, Poche was
holding Charles responsible for the performance of the whole
crew. Also, because Riggins had not told Poche that Charles
(and the crew) had been standing around before Poche ordered
the warning notice, it is clear that Poche was ordering the warn-
ing notice to Charles, and only Charles, because of the per-
formance of the crew. As demonstrated above, Charles was not
in the position of leadman for any legitimate reason, at least on
July 30. As Respondent has not demonstrated why Charles was
in the position for which he was held accountable, I find that
Respondent has not demonstrated that, absent his prounion
sympathies, Charles would have received any warning notice
for his conduct of July 30. Without this warning notice, of
course, there is no Wright Line defense and a violation must be
found. Assuming, however, that there was some basis for the
warning notice to Charles, the questions remain: (1) why did
the matter even come to Terry’s attention, and (2) why did
Terry decide to discharge Charles?
When Poche learned from Riggins that there was a putative
basis for discipline of Charles, Poche alerted Terry. Poche did
not testify that he alerted Terry because he knew that Charles
already had a certain number of warning notices in his file.
Poche testified that he alerted Terry because Charles’ warning
notice was for low production. There was no corroboration that
Terry wanted his supervisors to notify him if a warning notice
for poor production was being issued; certainly, Terry did not
testify that he had an outstanding order to that effect. And, most
certainly, Terry, who mendaciously avoided all cross-
examination about Charles, did not testify that he ordered the
other crew members to his office because they were issued
warning notices for low production also.120 Moreover, Mancuso
did not testify that, when Terry ordered him to have warning
notices issued to the (three) other members of Charles’ crew,
Terry also told him to bring those three others to his office.
That is, there is no legitimate reason that Poche would have
specially notified Terry about the situation. I find that Poche
brought Charles to Terry’s attention because of Respondent’s
demonstrated animus toward those who wore prounion insig-
nia, such as Charles. That is, as the record stands, Respondent
had not shown that Charles would have received a warning
notice for his conduct of July 30 even in the absence of his
known prounion sympathies. And, even if it can be said that
Respondent would have issued some warning notice to Charles
for his conduct of July 30, it has not been shown that Terry

119 The warning notices issued to Benson and King also mentioned
the total hours of the crew, but these warning notices were belatedly
issued, if they were issued at all. (There is the strongest suspicion that
they were not actually issued to the employees. Riggins lied about
deciding to issue those warning notices, and he was not shown the
warning notices and asked to describe their issuance. Moreover, if at
any time before he testified Terry had ordered the issuance of the warn-
ing notices, he presumably would have been asked about it on direct
examination. Finally, Mancuso was incredibly forgetful about when it
was that Terry ordered the issuance of the warning notices to the three
crew members other than Charles.)
120 Again, Terry made no mention on direct examination of the warn-
ing notices that were supposedly issued to the other crew members.
AVONDALE INDUSTRIES

1143
would have ordered Charles to his office even in the absence of
his prounion sympathies.
Again assuming that Charles deserved some warning notice,
and further assuming Terry had a legitimate basis for reviewing
the matter, I would nevertheless find a violation in the dis-
charge.
Terry testified that he decided to discharge Charles because
Charles had committed two similar disciplinary violations in
the paint department during the 12-month period before July
30, and one of those warning notices was a final warning no-
tice. Charles had received those paint department warning no-
tices, but the one that was a final warning notice was not the
second one that was issued to Charles; it was the first. After
Charles received the final warning notice for loafing in the
paint department on September 3, 1992, he received another
warning notice for loafing on November 18, 1992. (The second
paint department warning notice even noted: “Employee was
lying down in the work area.”) Nevertheless, Charles was not
then discharged, even though he had a prior warning notice
marked “Final.” The effect of Terry’s action was to give greater
force to Charles’ paint department final warning notice than did
the paint department itself. The paint department is another
department, not another employer. The organizational drive
was still 3 months away when Charles received his second
paint department warning notice, and Charles was simply
treated differently, or discriminated against, after the organiza-
tional attempt began and he joined it by wearing prounion in-
signia.
Even if all of Terry’s testimony is credited, Respondent has
not proved a Wright Line defense. Terry admitted that there is
no rule or practice that requires him to discharge all employees
who have committed three similar offenses within a 12-month
period. Terry was asked and he testified:

JUDGE EVANS: No. But assuming they are same or similar
conduct, you don’t always fire—do you always fire them if
they have three warnings notices within 12 months—
THE WITNESS: No, sir.
JUDGE EVANS: —or do you use your discretion?
THE WITNESS: Yes. Discretion.

And at another point:

Q. [By Mr. Lurye]: Is it correct, Mr. Terry, that it is
your policy, the Electrical Department’s policy, that for
general offenses, a person is subject to discharge if he or
she has three written warnings for the same offense within
a 12-month period?
A. No.
Q. All right. What is incorrect with what I just stated?
A. It depends on the gravity of the situation. There are
some areas where three, maybe even more than three, of-
fenses within a 12-month period of the same nature would
not be considered severe enough to consider termination.
There are other areas on the first or second offense termi-
nation is in order. It depends—
Q. Speaking of general offenses, now; just general of-
fenses.
A. Regardless.

Terry’s self-allowance for the factor of discretion negates any
proposition that Charles would have been discharged, as op-
posed to could have been discharged, as required by Wright
Line.
Moreover, Terry did not testify that Charles’ alleged loafing
on July 30 was “severe” in any regard. Terry obviously used no
“discretion” in the matter; he mechanically counted the warning
notices in Charles’ file, found three loafing-type warning no-
tices, and discharged him. (If Terry had used some discretion,
he might have considered that Charles was a helper who had
been doing a job that is usually assigned to more experienced
employees, and, as far as the “standing around” went, it was
literally “as hot as New Orleans in July” and perhaps at least
some pause in the work was called for. Terry did not testify that
he considered such matters in exercise of his discretion.)
As well as Terry’s admissions, a review of the disciplinary
records of just Riggins’ crew of July 29 and 30 demonstrates
that electrical department employees are not always discharged
for accumulating three similar warning notices in 12-month
periods. According to documents offered by the General Coun-
sel in rebuttal, among the employees on Riggins’ crew of July
29 and 30: (1) Spencer Brown received three warning notices in
1993: his first was issued on February 11 for failure to com-
plete work and intentional negligence; his second (marked as a
“Final Notice”) was issued on March 5 for failure to complete
work and intentional negligence; and his third was issued on
June 7 for quitting work early. These were similar disciplinary
violations,121 and the second warranted an express “final no-
tice,” but Brown was not discharged upon the third. (2) Bennie
Jackson had six warning notices in a 12-month period (three for
loafing-type offenses, and three for absences); Jackson’s fourth
warning notice included an apparently ineffective expression of
“Final Warning” (underlined twice, plus an exclamation mark).
Therefore, Jackson had two rounds of three similar-type warn-
ing notices, yet he was not discharged by Terry even though he
was issued two more warning notices after a (doubly under-
lined) electrical department final warning notice. And (3) Eddie
Harris received three warning notices for wasting-time type
offenses between August 1992 and March 1993 (and Harris
received other warning notices later). Finally, Terry testified
that he discharged Charles for three of the warning notices that
he accumulated within the prior 12 months; left unexplained is
why as many as 883 other employees were allowed to accumu-
late three warning notices in 12-month periods from 1990
through 1994 without being discharged as demonstrated in
Marshall’s case. Charles was therefore treated disparately, and
unlawfully, on this account also.
Respondent, therefore, has not demonstrated by a preponder-
ance of the evidence that, it would have discharged Charles
even in the absence of his prounion sympathies. I therefore find
and conclude that Respondent discharged Charles in violation
of Section 8(a)(3).
g. John Joseph
John Joseph (vols. 62, 157), who was employed as a first-
class electrician, was issued two warning notices on April 15,
1994; the first warning notice was dated as April 15, 1994, and
the second was dated as December 7, 1993. The April 15 warn-
ing notice (as I shall call it) alleged that Joseph had been out of
his work area, and had failed to sign out on his foreman’s
MCR, on April 14; the December 7 warning notice (as I shall
call it) alleged various attendance problems with Joseph during
November and December 1993. On May 9, 1994, Joseph was

121 It is to be noted that Terry considered Charles’ paint department
warning notices for intentional negligence and loafing to be for the
same or similar type of notices.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1144
issued a third warning notice, and he was then discharged.122
The fourth complaint, at paragraphs 24 and 26, alleges that by
issuing these three warning notices to Joseph, and by discharg-
ing him, Respondent violated Section 8(a)(3). The General
Counsel contends that Respondent issued the warnings to Jo-
seph and discharged him because of his known union activities
and expressions of sympathy which included his wearing
prounion insignia and his expressing prounion sympathies to
supervisors, both individually and during an employer cam-
paign meeting. Respondent denies that its supervisors had
knowledge of Joseph’s prounion sympathies at any relevant
time. Respondent further answers that all three warning notices
were issued solely because of Joseph’s misconduct; more par-
ticularly, Respondent answers that: (1) the December 7 warning
notice was issued because Joseph had three unexcused absences
within a 30-day period and, during the same period, he punched
out early twice (albeit with supervisory permission) and he was
late for work once; (2) the April 15 warning notice was issued
because, on April 14, Joseph quit work before his shift ended
and he left the premises without signing out on his supervisor’s
MCR; (3) the May 9 warning notice was issued because of
Joseph’s misconduct on April 29; to wit: quitting work well
before the noon lunchbreak and leaving his area to do nothing
but loaf; and (4) Joseph was discharged solely because of his
conduct which immediately followed an express final warning
notice. The General Counsel replies that: (1) One of the ab-
sences listed on the December 7 warning notice should have
been considered excused and that the warning notice includes a
matter that is not the subject of any of Respondent’s discipli-
nary rules, punching out early; (2) Joseph did not quit his shift
early on April 15, and his failure to sign out was caused by his
foreman’s not being available; alternatively, the General Coun-
sel contends that failure to sign out was not a cause for a warn-
ing notice under Respondent’s disciplinary rules; (3) Joseph
was absent from his assigned working area on April 29 only to
approach his supervisor and ask for permission to leave for the
day, something that employees are routinely permitted to do.
Ultimately, I find and conclude that all of the warning notices
issued to Joseph were valid, that Joseph’s union activities were
minimal, that there was no possible nexus between that mini-
mal union activity and Joseph’s discharge, and that Respon-
dent’s conduct toward Joseph did not violate Section 8(a)(3).
Joseph was a maintenance electrician on the day shift; his
hours were 7 a.m. to 3:30 p.m., with a half-hour lunchbreak at
noon and no other scheduled breaks. Maintenance electricians,
as opposed to construction electricians, have the job of erecting,
moving, and removing temporary lighting and power facilities
for employees of different crafts when those other employees
work in areas where permanent power and lighting facilities are
not yet available or where permanent lighting will never be
installed. Joseph worked under the direct supervision of Fore-
man Leroy Chaisson and General Foreman Henry McGoey.
Joseph was also supervised occasionally by Foreman Carl
Shropshire who substituted for Chaisson whenever Chaisson
was absent.
Current employee Glenda Joseph Dennis123 testified (vol. 62)
that she saw Joseph wearing union stickers on his hardhat dur-

122 All dates mentioned in Joseph’s case are from May 10, 1993,
through May 9, 1994.
123 This is not the alleged discriminatee Glenda Dennis. If Glenda
Joseph Dennis is a sister or other relative of John Joseph, the fact was
never established in the record.
ing March 1993. Joseph, however, testified that he did not be-
gin wearing prounion insignia until about 2 months before the
June 25 Board election. Joseph testified that, from that point
through the date of his discharge, he wore “Union-Yes” stickers
on his hardhat, or Union buttons on his shirt, or a union button
on the strap of his hardhat (where the strap crossed one of the
occipital areas), or he used some combination of those methods
of displaying prounion insignia. Joseph further testified that in
early 1994 Chaisson asked him where he had gotten his train-
ing; Joseph testified, “I told him that I had went through four
years’ apprenticeship program with IBEW.” Joseph also testi-
fied that during the preelection period, he attended an employer
campaign meeting that was conducted by Electrical Department
Superintendent Robert Terry. His then-foreman, Bobby Ro-
bicheaux, was also present. According to Joseph:

[Terry] just was telling us that he was concerned
about his future, and he was not going to allow outsiders
to come in and ruin what he had worked for over the years.
. . .
I asked him if he didn’t think that we were concerned
about our future. . . .
[Terry] said that whoever didn’t want to hear what
they had to say they could excuse themselves at the time.

At that point Joseph walked out of Terry’s meeting. Joseph
further testified that about 2 weeks before the Board election,
when no other persons were present, Robicheaux spoke to him.
According to Joseph:

[H]e had prefaced the meeting, saying that his super-
visor had asked him to find out if we had any complaints
concerning the . . . management, and if we had any com-
plaints, they wanted to hear them. That is what he said the
meeting was for. . . .
I just told him that if we had a good relationship be-
tween management and the employees, that we wouldn’t
be considered about having the Union.

Terry, who made the decision to discharge Joseph, testified that
he could not remember any employee’s being excused from any
of his meetings, and he denied any knowledge of any prounion
sympathies held by Joseph. Robicheaux did not testify; Chais-
son testified, but he did not deny Joseph’s testimony that he
told Chaisson about his history with the IBEW.
(1) Joseph’s warning notice for absenteeism
(Joseph testified that on April 15 Terry presented him with
two warning notices, one for his alleged conduct of April 14
and one for his absenteeism in November and December. Re-
spondent contends that Terry presented Joseph with only one
warning notice on April 15, the one for his April 14 conduct,
but Respondent offered no evidence of when the December 7
warning notice might have been presented to Joseph. General
Foreman McGoey testified that he signed the December 7
warning notice in December because Chaisson had come to him
and complained that Joseph was being chronically absent or
late and that he was leaving early too many times. McGoey
testified that, after completing the warning notice, he sent it to
the electrical department office marked “not present” in the
space for the employee’s signature. In all other instances in
which warning notices were issued, employees were given
opportunities to sign their warning notices and to make entries
in the “Employee Comment” spaces. Moreover, McGoey testi-
fied: “I don’t recall if he [Joseph] got a copy of this one or not.”
AVONDALE INDUSTRIES

1145
McGoey and Terry testified that Terry did not give Joseph a
copy of the December warning notice on April 15, but no su-
pervisor testified that he issued the December 7 warning notice
to Joseph on December 7 (or at any other time). I credit Jo-
seph’s testimony that he did not receive a copy of the Decem-
ber 7 warning notice until he was in Terry’s office during the
morning of April 15, as detailed below. All of that having been
said, the General Counsel makes no contention on brief that the
delay in actual issuance of the December 7 warning notice is
somehow an indicia of its violative nature; therefore, the De-
cember 7 warning notice will be considered as though it had
been issued on that date.)
As a matter of background it is to be noted that Joseph re-
ceived several other warning notices during the year prior to his
December 7 warning notice: (1) On December 18, 1992, Joseph
was issued a warning notice for not wearing safety glasses. (2)
On February 25, Joseph was issued a warning notice for “Quit-
ting work before time. Not cleaning between 3:20–3:30.” (3)
On May 10, Joseph was issued a warning notice because he
“[r]eported back from lunch late—12:35 p.m.” (4) On October
21, Joseph received a warning notice signed by General Fore-
man McGoey and Foreman Chaisson; the warning notice cites
General Offense-2 (being tardy three times within a 30-day
period), and it states: “This is your final warning for any of-
fense.”
The December 7 warning notice was also signed by McGoey
and Chaisson. The supervisors checked the box for General
Offense-1 of the Avondale Employees’ Guide (three unexcused
absences in 30 days). The supervisors wrote:

Nov. 12, punched out early, [at 3:15 p.m.]. Nov. 24,
punched out early, [at 11:45 a.m.]. Nov. 29, unexcused ab-
sence. Nov. 30, punched in late, [at 7:15 a.m.]. Dec. 3, un-
excused absence. Dec. 7, unexcused absence.
Employee has a final warning already, and had a ver-
bal [oral] warning. (Recommend termination.) [Parenthe-
ses original.]

Respondent introduced MCRs that reflect that Joseph was ab-
sent or late, or punched out early, on the dates which were ref-
erenced by the December 7 warning notice. Joseph admitted
that he was absent, and did not call in, on November 29; Joseph
further testified that he could not remember whether he was
absent on December 3 or 7. Joseph further testified that he
could not remember if he had punched out early on November
12. He did recall that he punched out early on November 24,
the day before Thanksgiving. Joseph testified that, according to
established practices, he notified Chaisson that he wanted to
leave early; Chaisson presented him with an MCR to sign; Jo-
seph signed it, and Joseph left for the day. Joseph testified that
Chaisson did not indicate in any way that Joseph should not be
signing out early on November 24. Joseph acknowledged that
he did not report to work, or call in, on November 27; he testi-
fied only “I was out of town that weekend.” Further in reply to
the allegations of the December 7 warning notice, Joseph testi-
fied that he punched in at 7 a.m. on November 30; he took
about 2 minutes to get to the point at which he was to sign
Chaisson’s MCR. Shropshire’s crew was to sign in at the same
place that day. When he got to Chaisson, Chaisson told him to
write in 7:15 a.m. as his starting time. Joseph testified that em-
ployee Kevin Williams signed in on Shropshire’s MCR after he
signed in on Chaisson’s MCR. According to Shropshire’s MCR
for that date, Williams was allowed to sign in as of 7, and he
was to be paid from that point. Joseph testified that under pre-
vious foremen (Robicheaux, Jerry Kaywood, and Darryl Hall),
he was allowed to sign in for 7 if he punched in by 7 and had
arrived at where any of the foreman were, “[n]ot late, but a
little after 7:00.” Finally in reply to the allegations of the De-
cember 7 warning notice, the General Counsel contends that
Joseph’s absence of that day should have been treated as ex-
cused because the electrical department’s call-in log for that
date shows that, before the shift, Joseph called in and reported
that he would be absent because he was experiencing car trou-
ble.
On cross-examination McGoey testified that supervisors al-
ways grant a “pass-out” (or permission to leave the plant early)
when an employee asks for one; McGoey further agreed that
there is no rule in the Avondale Employees’ Guide against an
employees’ clocking out early, and he testified that employees
are not punished for leaving early if they do not “abuse the
system.” McGoey was asked if there was a limit to the number
of times that an employee can leave with the permission of his
supervisor (as Joseph had done); McGoey responded: “I can’t
put a number on it; no, I can’t.”
Joseph’s Warning Notice for Absenteeism—Conclusions
The first issue is whether the General Counsel has presented
prima facie cases that Joseph’s warning notices and discharge
were imposed unlawfully. I do not believe that Joseph wore
prounion insignia in March 1993 as Glenda Joseph Dennis
testified; if he had worn prounion insignia that early in the or-
ganizational campaign, Joseph would have so testified. Joseph,
however, testified that he did not start wearing prounion insig-
nia until 2 months before the June 25 Board election. I also do
not believe that Joseph wore prounion insignia after March
1993. As detailed infra, electrician Wayne Cousin was pre-
sented in Joseph’s case as a corroborating witness for Joseph on
other aspects of his case; Cousin worked along beside Joseph,
but he was not asked if he saw Joseph wear any prounion insig-
nia. The General Counsel usually asked corroborating wit-
nesses if they had seen prounion insignia in cases in which the
alleged discriminatees claim to have worn prounion insignia.
Nevertheless, Joseph credibly testified that, during an employer
campaign meeting, he challenged remarks made by Terry, and
Terry invited him to leave the meeting. Moreover, Joseph’s
testimony is unchallenged that, about 2 weeks before the Board
election he told his then-foreman, Bobby Robicheaux that, “[I]f
we had a good relationship between management and the em-
ployees, that we wouldn’t be considered about having the Un-
ion.” Also, Joseph credibly testified that during the preelection
period he told Chaisson that he had received training in an
IBEW apprenticeship program. I find that, at the times of the
alleged discrimination against him, Joseph’s supervisors, in-
cluding Superintendent Terry, had knowledge of Joseph’s sup-
port for the Union. Respondent’s animus against such prounion
employees having been more than amply demonstrated, by
Bossier’s subsequent (June 1) speech and elsewhere, I find that,
the General Counsel has presented prima facie cases of unlaw-
ful discrimination against Joseph, and the burden shifts to Re-
spondent to demonstrate by a preponderance of the evidence
that it would have taken the same action against Joseph even in
the absence of his known protected activities. Respondent’s
defenses must therefore be examined.
On the December 7 warning notice McGoey mentioned other
factors that he considered to have been problems with Joseph’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1146
attendance, but he checked only the box for General Offense-1
(having three unexcused absence within 30 days). The General
Counsel concedes that Joseph had unexcused absences on No-
vember 29 and December 7; the General Counsel contends,
however, that Joseph’s absence of November 3 should have
been excused because he did call in that day. The call-in log
reflects that Joseph called in November 3 to report car trouble,
and there is evidence that such call-ins are counted as excused
if, when the employee returns to work, he produces documenta-
tion such as a receipt for repairs. Here, however, Joseph made
no such production, and it cannot be found that Respondent,
absent his prounion sympathies, would have counted Joseph’s
absence of December 3 “excused.” Therefore, the December 7
warning notice for violation of General Offense-1 was clearly
valid. There is a suspicion about the warning notice’s refer-
ences to Joseph’s early punch-outs because Respondent had no
rule in that regard, as McGoey’s testimony showed; also, there
is a suspicion about the reference to Joseph’s tardiness of No-
vember 30. Nevertheless, the warning notice was only for Gen-
eral Offense-1, three unexcused absences within 30 days, and
there is no evidence that Joseph was subsequently penalized for
the tardiness or the early punchouts that are mentioned on the
warning notice. Finally, the warning notice of December 7 was
Joseph’s fifth in 12 months,124 and nothing can be made of the
statement by the supervisors that they “[r]ecommend termina-
tion.” I shall, therefore, recommend dismissal of this allegation
of the complaint.
(2) Joseph’s warning notice for quitting work early
and failing to sign out
At the time of the events in question, Joseph was working on
an LSD that was still on the land. On an LSD, the casualty con-
trol office is a space used by several crafts for various business
purposes. Casualty control is also the location of the broadcast
facilities of the ship’s central public address system. At the end
of each shift, usually during the last half-hour, supervisors carry
their MCRs to the employees where they are working and have
the employees sign to verify that they have worked certain
hours on a given day (starting times, quitting times, and any
times off-the-clock). When an employee is working on a ship,
and he cannot be found to sign the MCR, the supervisors will
go to the casualty control office on the ship and page the em-
ployee on the public address system, telling the employee to
report to casualty control, or elsewhere, to meet the foreman.
On April 14 Chaisson was absent and Shropshire acted as
Joseph’s supervisor; Joseph was therefore required to sign in
and out on Shropshire’s MCR on that date. Joseph did not wear
a watch while working, but he testified that about 3 he was
paged to casualty control where he met Shropshire and two
pipefitters. Shropshire told Joseph to go with two pipefitters
and remove some temporary lighting that was in the way of the
pipefitters’ work. Joseph left casualty control with the pipefit-
ters and followed them to the lights in question. The lights
turned out to be in a fuel-storage tank that was about 50-feet
deep. Further according to Joseph, he and the pipefitters de-
scended into the tank. Joseph denied that, while in the tank, he
could hear pages from casualty control. Joseph testified that
about 3:15 (a time, again, that Joseph estimated without benefit
of a watch) he was required to climb back out of the tank and to

124 Joseph is included among the 197 employees listed in Appendices
B and C as having received five or more warning notices within 12-
month periods without being discharged.
a point on the deck that was immediately below a stairwell that
led to casualty control. At that point, he was to disconnect the
power supply to the temporary lights and reconnect other lights
by which the pipefitters could work. While he was between
connections, the pipefitters were “in the dark.” Joseph testified
that, as he was working on the deck, there was no reason why
he could not have heard pages from casualty control, but he
heard none. As he worked on the deck, Joseph testified, Cousin
(who was also a maintenance electrician) walked by. Joseph
testified that (although he had not heard a page for himself, and
although Cousin did not tell him that he had been paged to
come to casualty control) he told Cousin to tell Shropshire that
he would come to casualty control shortly to sign the MCR.
Joseph testified he continued working on the deck after Cousin
left him. At 3:20 he heard the daily cleanup whistle blow. At
that point Joseph left the two pipefitters “in the dark” (because
he had not finished making the connections) and he started
searching for Shropshire so that he could sign the MCR. He
went to casualty control where he found Cousin, but not Shrop-
shire. He told Cousin to tell Shropshire that he had more work
to do in the tank but would return to sign the MCR. Joseph
went back to the tank, finished hooking up the supply to the
lights, and climbed into the tank to retrieve tools that he had left
there; then he climbed back up to the deck and picked up tools
that he had left there. At that point, which Joseph (again, with-
out a watch) placed at 3:25 or 3:26, his job at the tank was fin-
ished. Joseph went back to casualty control where he found
Cousin “still waiting,” but Shropshire was still not there. Joseph
went to Shropshire’s office on the ground to look for him there.
Not finding him in his office, Joseph looked around the area for
Shropshire, but still did not find him. Joseph testified that he
gave up and stopped looking “about 3:30” because he had a car
pool to catch. Then he went to punch out and leave.
On April 15, when Joseph arrived at work, Shropshire pre-
sented him with a warning notice that had been drafted by
McGoey and Shropshire. No general offense number or major
offense number was checked. As the date and time of offense,
Shropshire had entered: “4–14–94–3:00 p.m. to 3:30 p.m.” As
the reason for warning, Shropshire had entered: “Failure to sign
MCR.” Beneath that McGoey had written:

Employee disappeared for the last 35 minutes of work
shift. Supervisors looked for him for 35 minutes in tanks;
he was not in his work area. Supervisors stayed 1 hour af-
ter work looking for him, afraid something could have
happened to him. Also made several pages on intercom
systems.

Shropshire asked Joseph to sign the warning notice; Joseph
refused, stating that what was written on the warning notice
was not the truth because both he and Cousin had looked for
Shropshire to sign the MCR. Shropshire sent Joseph to
McGoey who also asked Joseph to sign the warning notice.
Joseph testified that he also told McGoey that he would not
sign the warning notice because “what was written was not the
truth, and that I was in my area.”125
McGoey took Joseph to Terry’s office. According to Joseph,
in Terry’s office:

125 This undisputed reply demonstrates that the “work area” language
was on the notice when Joseph first received it, contrary to certain
testimony by Shropshire.
AVONDALE INDUSTRIES

1147
Well, after looking at the records, Mr. Terry said that I
was . . . a nuisance to the Company, and he also wanted
me to sign the citation. . . .
Well, I told him that I wasn’t going to sign it, because
what was written was not true, and I also went on to ex-
plain that I had three witnesses in that area that could say
that I was in my work area at that time. . . . I told him it
was two pipefitters, and I also told him it was one of the
electricians in our crew. . . .
Well, he said he didn’t care how many witnesses I had.
. . . .
[Terry] said in his words, said, I have done this one
[other] time . . . and then he went on to tell me that he was
going to give me a “Final, Final” warning.

On the April 15 warning notice, immediately below what
Shropshire and McGoey had written, Terry wrote:

This is your Final, Final, warning. Termination for
ANY future offences.

(As always, emphasis in original.) Joseph was sent back to
work.
Current employee Wayne Cousin was also a maintenance
electrician at the time of the events in question. The General
Counsel called Cousin (vol. 54) who testified that on April 14,
about 3:10, he heard Shropshire paging Joseph “over and over”
to come to casualty control. He was walking through an area
that he called “the jungle deck” on the way to casualty control
to sign the MCR when he came upon Joseph where Joseph was
working. Cousin testified that on the jungle deck, the page
could not be heard because of blowers that were there. He told
Joseph that he was being paged to sign out, but Joseph replied
that there were other employees in the tank and he needed to
stay because they were then in the dark and they were in dan-
ger. Cousin quoted Joseph as saying to him, “I have got to fin-
ish giving these people lights because they are working late.”
Cousin further testified that he stayed on the jungle deck for
a while, helping Joseph; then, at 3:30, he left Joseph, who was
still working, to attempt to find Shropshire and sign out on the
MCR. Cousin testified that he found Shropshire at his office on
the ground. Shropshire told Cousin that he had been looking for
him and Joseph. Further according to Cousin, “I told him I left
John Joseph working and I came looking for him.” Shropshire
made no reply. Cousin further testified that on April 15, when
he came to casualty control to sign in for the day, Shropshire
was telling some persons (whom Cousin could not identify) that
he had issued a warning notice to Joseph for not signing the
MCR on April 14. According to Cousin: “I told him [Shrop-
shire], ‘I left that man working, if he was talking about yester-
day.’ And he told me, ‘You get out of here and go to work.”’
In his cross-examination, Joseph (who was called after
Cousin) testified that he did not know what the “jungle deck”
was, and he specifically denied that, when he came out of the
tank, he was ever at a point where blowers would have inter-
fered with his hearing of a page that was being made. Joseph
further denied that anyone, which presumably would include
Cousin, came to where he was working and told him that he
was being paged. Finally, Joseph testified on cross-examination
that no one helped him as he worked on deck; specifically,
Joseph testified that he worked, “[a]ll the time” by himself on
the job of disconnecting the temporary lights that had been in
the tank.
Joseph’s Warning Notice for Quitting Work Early and Failing
to Sign Out—Respondent’s Evidence
Shropshire (vols. 99, 100) testified that shortly after lunch on
April 14, Cousin approached him and said that Joseph had told
him that he needed assistance stringing lights in a tank. Shrop-
shire told Cousin to assist Joseph, but, when they finished, to
go back to doing previous assignments. Shropshire further testi-
fied that, between 2 and 2:30, Cousin came to him and told him
that he and Joseph had finished the work in the tank. Shropshire
testified that about 2:45 he saw Joseph on an upper deck (not
on a lower deck where Joseph would have access to a tank),
and that Joseph was doing nothing, but he did not give Joseph
another assignment, and he did not see Joseph for the remainder
of the day.
Shropshire further testified that beginning at 3 he began go-
ing to his crewmembers and getting them to sign the MCR. By
3:15 he had all signatures collected except those of Joseph and
Cousin. He went to casualty control and began paging them to
come there. Shropshire paged them “about five or six times”
until the 3:30 whistle blew, but he got no response. About 3:35,
looking over the side of the ship, he saw Cousin on the ground.
He went to Cousin and got him to sign the MCR. Shropshire
asked Cousin where Joseph was, and Cousin replied that Joseph
“should be on the boat.” Shropshire further testified that, after
signing Cousin out, he then contacted McGoey, and they began
a search for Joseph. Shropshire testified that he and McGoey
were afraid that Joseph might have come to physical harm
while working somewhere. The search lasted until about 4:10
or 4:15, at which time he and McGoey decided that Joseph
must have gone home. As quoted above, the April 15 warning
notice states that the supervisors looked for Joseph “for 35
minutes in tanks.” Shropshire, however, testified on direct ex-
amination that:

We went up there. We went and he [McGoey] said he
was going to search a certain place and I went and
searched a certain area all over the boat. Mostly in that
area, except for the tanks. We didn’t go in the tanks. We
went all up another area of the boat.

Shropshire testified on cross-examination that he and McGoey
did not look for Joseph in any of the tanks because there was a
rule against any electrician, or electrical supervisor, going into
a tank without another electrician, so he and McGoey had no
reason to believe that Joseph might have been in a tank.
(Shropshire also denied giving Joseph an assignment to work in
a tank; however, Joseph did not testify that Shropshire assigned
him to work in a tank—Joseph testified that Shropshire as-
signed him to go with the pipefitters to remove lights, which
turned out to be in a tank.)
On cross-examination Shropshire was asked if he could ex-
plain why, if he and McGoey did not search the tanks (as he
had testified), McGoey would have written on the warning that
the supervisors did, in fact, search the tanks and did so “for 35
minutes.” Shropshire replied, “I don’t know, unless McGoey
went down in the tanks after 3:30.”
McGoey (vols. 117, 118) testified that when Shropshire con-
tacted him on April 14 and told him that he could not find Jo-
seph, he and Shropshire searched for Joseph, but they did so
separately: “[W]e went separate ways looking for him, and I
went down in the tanks looking for him.” Shropshire testified
that he went to “about eight” tanks to look for Joseph and
climbed half-way down the ladders into the tanks, shining his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1148
flashlight around, and made sure that Joseph was not there.
When asked why he went into tanks to look for Joseph,
McGoey testified:

Because he [Joseph] is a lighting maintenance man,
and basically they light up a bunch of tanks. Anywhere
else on the ship, they normally gots lights. Tanks—a main-
tenance man is always in tanks. So that is the number one
spot that I wanted to check first.

McGoey further testified that about 4:30, after 35 or 45 minutes
of looking for Joseph, he and Shropshire met and decided that
Joseph had gone home.
McGoey testified that before 7 a.m. on April 15 he radioed
Shropshire and told him to issue a warning notice to Joseph
because: “Well, for one thing, [Joseph’s] failing to sign the
MCR, and basically, you know, us wasting our time, staying
there looking for him.” According to McGoey, Shropshire
wrote the language “Failure to sign MCR” on the warning no-
tice, and he wrote the other entries in the “Reason for Warning”
area, as quoted above. McGoey further testified on direct ex-
amination that, after the warning notice was drafted, he called
the electrical department office and was told by a clerk that
Joseph had “a final warning.” McGoey told Shropshire to let
him know when Joseph got to work because he wanted to take
Joseph to Terry’s office, “because he had a final warning.” The
only “final” warning in Joseph’s file at that point was the Octo-
ber 21 warning notice, for tardiness, as quoted above. On cross-
examination, McGoey was asked to explain why he wrote on
the warning notice that “supervisors” (plural) had looked for
Joseph in the tanks; McGoey replied that it was “a mistake.”
Terry testified (vol. 91) that on April 15, when McGoey
brought Joseph into his office, he gave Joseph a chance to ex-
plain his conduct. Joseph told Terry that he had been working
in the tanks and could not hear the page and that he had
searched for his foreman to sign the MCR but could not find
him. After listening to Joseph, Terry separately conferred with
McGoey and Chaisson and, according to Terry, he told them:

I said, “Look, guys. This is not clean-cut here.” Mr.
Joseph has given me his version of what happened. And it
is possible. Maybe it did happen that way, you know. We
didn’t see him leave the work area.
“He says he was working. He is a first-class lighting
mechanic. He has been with us a period of time now. He
has a final warning in his record, but I don’t think this is—
this event is sufficient for me to consider termination of
this employee.”

(Neither McGoey nor Chaisson testified that they had recom-
mended discharge for Joseph over the matter, but McGoey did
testify that, when he brought Joseph to Terry’s office, he had
Joseph bring his personal tools with him, the usual procedure in
discharge situations.) Terry further testified that he called Jo-
seph back into the room and:

I said, “John, I have heard your supervisor’s version of
this event and I have heard your version of it. I have re-
viewed your file. You have a final warning already in your
file. You have been recommended for termination once.
‘I don’t feel that it is appropriate for me to terminate
you at this point. So what I am going to do—you know, I
have read your statement here on the citation.126 I am go-
ing to put on here ‘Final, Final warning.’ Okay? And that
you are going to be discharged for any future conduct of
this same or similar type.
‘I want you to understand that; that you are very close
to being terminated if you don’t correct these type of prob-
lems.”’

Terry testified that he wrote “Final, Final” on the April 15
warning notice because Joseph had already had one “final”
warning notice. Actually, Joseph had two warning notices that
could be fairly classified as final; to wit: the October 21 warn-
ing notice, for tardiness, which, as quoted, above stated that it
was “final,” and the December 7 warning notice in which
McGoey recommended termination. (The latter notice was
apparently in Joseph’s file, even though, at that point, it had not
been delivered to Joseph.)
On cross-examination, Terry testified (vol. 92): “Mr. Joseph
already [had] a final warning active in his file. But I accepted
his explanation as to, it was not totally conclusive that he was
totally at fault with this particular offense; so he was not dis-
charged even though he had a final warning.”
Joseph’s Warning Notice for Quitting Work Early and Fail-
ing to Sign Out—Conclusions
There is no rule against electrical department employees and
supervisors going into tanks without another member of the
electrical department. As well as Shropshire’s testimony on this
point being totally uncorroborated, it is belied by the facts that:
(a) McGoey, Shropshire’s general foreman, testified to the
existence of no such rule; (b) McGoey testified that mainte-
nance electricians are “always” in the tanks; and (c) McGoey
did, in fact, look for Joseph in eight tanks before giving up the
search of April 14. The apparent reason that Shropshire con-
cocted the rule against employees’ going into the tanks alone,
or going into the tanks with other than electrical department
personnel, was that Shropshire wanted to deny that he knew, or
should have known, that Joseph had been working in a tank
where he could not hear a page. I therefore discredit Shrop-
shire’s testimony that the last assignment that he gave Joseph
on April 14 was to go to a tank with Cousin, and that Cousin
reported that job was finished in the early afternoon. I credit
Joseph’s testimony that, about 3, Shropshire sent Joseph to go
with two pipefitters to move temporary lights, and those lights
turned out to be in a tank. (Because of the nature of the work
described, the craft was probably shipfitting, not pipefitting, as
Joseph testified, but that does not matter.) The assignment to go
with the pipefitters came somewhat before 3, and it was done
without a thought of Joseph’s signing the MCR for the day.
This is the only logical explanation for Shropshire’s failing to
get Joseph to sign the MCR before he left casualty control
where he gave Joseph the assignment.
However, I credit Shropshire’s testimony that he continued
to page Joseph until 3:30. Joseph may not have heard the page
in the tank, but he would have heard it when he came up on
deck. At any rate, Joseph knew that he needed to sign out for
the day, and he knew where he should do so; Joseph testified
that Cousin had walked by Joseph’s work area and told him that
he was going to casualty control to sign out. Joseph necessarily
knew that he needed to do the same, even if he did not hear the

126 Actually, Joseph had written nothing on the warning notice at that
point; he had, however, explained his position orally to Terry.
AVONDALE INDUSTRIES

1149
page, and even if no one told Joseph that he was being paged to
casualty control (which Cousin testified that he did).
There are irreconcilable differences between the testimonies
of Joseph and Cousin: (a) Cousin testified that he saw Joseph
on the jungle deck where Joseph could not possibly hear the
page because of some blowers; however, as well as not know-
ing what the jungle deck was, Joseph testified that when he was
out of the tank, and on a deck immediately below casualty con-
trol, there was nothing that could have interfered with his hear-
ing a page; (b) Cousin testified that Joseph told him that he
would not leave the area because other employees were in the
tank and he would not leave them without lights; however,
Joseph testified that he left the two pipefitters “in the dark,” at
least long enough to go to casualty control and search for
Shropshire; (c) Joseph testified that, after 3:20, he twice went to
casualty control looking for Shropshire, and both times he saw
Cousin there; however, Cousin did not testify that he saw Jo-
seph at casualty control; (d) Cousin testified that he was on the
ship, working with Joseph until 3:30; however, Joseph testified
that no one helped him as he worked on deck; and (e) most
importantly, Cousin testified that Joseph was still on the ship,
working, at 3:30, but Joseph testified that he was on the ground
at 3:30, looking for Shropshire. That is, Cousin’s scenario was
that Joseph knew that he was being paged (because Cousin told
him), but Joseph was too busy to go to casualty control; Jo-
seph’s scenario was that he did not hear the page, but he went
to casualty control anyway (twice). In the process, both Joseph
and Cousin rendered themselves incredible in their accounts of
Joseph’s conduct on April 14.
I find that Shropshire continued to page Joseph to come to
casualty control after 3:20. Joseph heard the page to come to
casualty control, but he ignored it. Joseph knew that he was
required to sign the MCR before he left each day, and he knew
where to find Shropshire (at casualty control, where Cousin
also had told him that he was going to sign the MCR), but he
simply did not go there. Joseph did not fail to go to casualty
control because he was concerned about providing lights to the
pipefitters (again, as Joseph testified, he left them “in the
dark”). Joseph failed to go to casualty control to sign Shrop-
shire’s MCR because he wanted to go home as soon as he could
get to the timeclock and punch out. If Joseph had punched out
more than one minute after 3:30 (because he had been working
on the ship until the last minute, as Cousin testified) Joseph
assuredly would have so testified. I believe, and find, that Jo-
seph worked somewhat later than 3:20, without Cousin, but
then he went straight for the timeclock to punch out, ignoring
the repeated pages which he assuredly heard rather than taking
whatever time that was required to go to casualty control and
sign out.
(One matter does not involve a credibility conflict. Cousin
testified that on both April 14 and 15 he told Shropshire that he
had left Joseph “working.” Cousin did not testify that, either on
April 14 or April 15, he told Shropshire that he had left Joseph
working at 3:30. The effect of Cousin’s testimony was that he
told Shropshire that he had left Joseph working, but that could
have been any time during the day; i.e., whatever time Cousin
had seen Joseph last. To the extent, however, that Cousin’s
testimony was designed to convey the impression that he told
Shropshire, on either April 14 or 15, that Joseph was had been
working at 3:30 on April 14, I discredit it. I also discredit
Cousin’s testimony about what Shropshire said to him on the
morning of April 15.)
On the warning notice that Terry reviewed, McGoey had
written that Joseph had “disappeared for the last 35 minutes of
his work shift.” This was an exaggeration; however, Joseph did
leave the ship before 3:30, without doing work that he should
have done, sign out.127 That is, the warning notice was correct
in its conclusions that Joseph had failed to sign out and that he
had left his work area (casualty control) to avoid signing out.
Contrary to the contention of the General Counsel on brief,
Terry’s doubts about exactly what had happened was not an
admission that the warning notice was completely invalid and
that no notice should have been issued at all; Terry’s doubts
were of sufficient magnitude only to prevent discharge of Jo-
seph at that point. I find and conclude that Respondent has
shown that Joseph would have received the warning notice of
April 15 even in the absence of his prounion sympathies. I shall
therefore recommend that this allegation of the complaint be
dismissed.
(3) Joseph’s discharge for loafing and having prior
warning notices
A “container” is a boxcar without undercarriage. Some con-
tainers are used for field offices and some are used for storage.
A storage container that held the supplies of the maintenance
electricians was on the ground near the ship to which Joseph
was assigned on April 28 and 29. The container had a loose
wire-mesh front, and it was called “the cage.” Openings in the
mesh structure are about three inches in diameter; therefore, for
some distance, someone outside can see who is inside the con-
tainer.
Maintenance electricians install temporary lighting with
“streamers,” which are strings of lights that are about 25-feet
long. Streamers are purchased commercially, but some assem-
bly is required; generally, this assembly consists of cutting,
stripping and fitting wires to desired lengths, fitting protective
covers into bases, and inserting the light bulbs. Assembly of
streamers is done in the cage, and sometimes partially assem-
bled streamers are stored in the cage.
At some time before the events in question, Joseph was
scheduled to take vacation from May 2 through 6. Joseph testi-
fied that on April 28 Chaisson assigned him to place lights in
another of the ship’s tanks. He started the job on that date but
did not finish. On Friday, April 29, Joseph made several trips
between the ship and the ground to retrieve streamers from the
cage. Joseph testified that, at some point, he became aware that
he needed to assemble more streamers, so he again went to the
cage. Joseph testified that he got to the cage and sat down to
assemble streamers “about 11:35.” (This time estimate, again,
was without benefit of a watch because Joseph did not wear one
at work.) Joseph testified that he assembled streamers in the
cage “until it was close to lunch.” (When asked on direct ex-
amination how he knew it was “close to lunch,” Joseph replied:
“Well, the employees starting flowing, you know, coming more
and more off of the ship, the closer it gets to lunch. That is how
I could tell.”)

127 The General Counsel presented two employees who testified that
they were not punished for failing to sign out on MCRs. Even if cred-
ited, this testimony was not probative; certainly, it is not a significant
number which would lead to the conclusion that the rule requiring
employees to sign the MCRs was disparately enforced.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1150
Joseph testified that, while he was in the cage, he decided to
leave the plant at noon to start his vacation early.128 After he
made that decision, Joseph left the cage and began looking for
Chaisson. When he found Chaisson, Chaisson told Joseph that
he was off the ship early and that he would be issued a warning
notice. Joseph testified that he replied to Chaisson that he
wanted to leave for the day and he asked to sign out on Chais-
son’s MCR, but he did not testify that he told Chaisson that he
was in that area because he had been looking for Chaisson.
After signing the MCR, Joseph left the premises.
When Joseph returned to work from vacation on May 9,
Chaisson presented him with another warning notice. The
warning notice was signed by Shropshire, Chaisson and
McGoey; the supervisors cite April 29 at 11:45 a.m. as the date
and time of the offense; the box for General Offense-4 is
checked, and the notice recites:

Wasting time, leaving work place without permission.
Employee has final warning notice and has also been ver-
bally warned by electrical supt. Employee walked off ship
at 11:45, sat down in maintenance cage, then started walk-
ing toward gate at 7 min. to 12.

Chaisson called McGoey and McGoey came to the area. Joseph
asked McGoey to come to the cage to see the streamers that he
had assembled, marked and stored on April 29. McGoey looked
at the streamers, but McGoey told Joseph to come with him to
Terry’s office anyway. While Joseph and McGoey were wait-
ing to see Terry, Joseph wrote on the warning notice as his
“Employee Comment”: “Maintenance electrician en route to
obtain streamers in connection with job assignment. Was not
aware of time.”
According to Joseph, when he was called into Terry’s office:

Well, then Mr. Terry asked us to come into the office,
and when he looked at the citation, he said, “What is this?”
And I went on to try to explain to him what had happened.
. . . I told him that I was inside of the container, making
streamers. . . .
[Terry] just said that, “You are fired.”
And I told him, God bless him.

Joseph left the premises at that point.
Joseph’s Discharge-Respondent’s Evidence
On June 15 Respondent’s counsel submitted to the Regional
Office a statement of position on Joseph’s discharge. After
noting that Joseph was seen by Shropshire at 11:45, counsel
states:

[Joseph] asserts that as a maintenance electrician he was not
required to get permission to go to the maintenance container.
This is true only if the employee goes to the maintenance con-
tainer to work. [Joseph] did not go to the maintenance con-
tainer to work; he went to the container and sat down, wasted
time, and then left the ship area before 12:00 noon without his
supervisor’s permission.

This statement of position would seem to immediately narrow
the issue to what Joseph was doing when he was on the ground;
either working or loafing. Shropshire, Chaisson, and McGoey,
however, testified that Joseph should not have been on the

128 Joseph’s testimony in this regard impeaches other testimony by
Cousin that, earlier in the morning, Joseph told him that Joseph had
planned to leave at noon.
ground in the first place. Those three supervisors testified that
there was some unwritten, but absolute, rule against employees,
including maintenance electricians, going to the ground be-
tween 11:30 and 12. The General Counsel’s witnesses denied
ever hearing of such a rule. In deciding whether such a rule
existed, the first thing to be noted is that, if any such absolute
rule existed, and it was a factor in the supervisors’ decision to
discipline Joseph, it assuredly would have been mentioned by
counsel in his June 15 statement of position. Moreover, Electri-
cal Department Superintendent Terry mentioned no such rule in
his extensive testimony about electrical department rules. But
most importantly, Gerdes, the de facto assistant superintendent
of the electrical department, testified unequivocally on cross-
examination (vol. 122) that maintenance electricians are al-
lowed to go to the ground, without permission from their fore-
men, for materials at any time between 7 and noon.129 Also, on
this point Respondent called construction electrician (but not
maintenance electrician) Kevin Williams (vol. 99). Even after
blatant leading on direct examination, Williams refused to say
that the employees had been given any other instruction about
the period between 11:30 and noon, other than to “stay busy.”
On cross-examination, Williams flatly denied that the supervi-
sors had told the employees that they could be disciplined for
going to the ground between 11:30 and noon, even if they were
working. Finally on this point, Joseph credibly denied that he
had ever been told by any foreman that he was not to go to the
ground between 11:30 and noon without permission. I find that
no rule against maintenance electricians’ going to the ground
between 11:30 and noon existed; at least, no such rule was ever
communicated to Joseph. Nevertheless, if Joseph was on the
ground, but not working, between 11:30 and noon of April 29,
some discipline would seemingly have been in order.
The ship to which Joseph was assigned on April 29 had six
levels above the main deck. Shropshire testified that on April
29, about 11:45, he looked over the side from the sixth level
and saw Joseph on the ground leaving a construction elevator
that takes personnel between the ground and the main deck.
According to Shropshire, he saw Joseph proceed to the cage
and sit on a bucket, with nothing in his hands. Shropshire
watched Joseph sit there for “two or three minutes.” Shropshire
went to check on his crew for another 2 or 3 minutes, and then
he returned to where he could see Joseph again. Again he ob-
served Joseph sitting on the bucket, again for 2 or 3 minutes,
doing nothing. After that, Joseph got up from the bucket, went
out the doorway of the cage, and walked out of Shropshire’s
field of vision. Shropshire specifically denied that Joseph was
assembling streamers. Shropshire testified that, after lunch that
day, he reported what he had seen to McGoey.
On April 29 there was a second ship on the ground in the
proximity of the ship to which Joseph had been assigned. Cha-
isson testified that he had been to another area of the yard that
morning and he returned on a bicycle several minutes before
noon. As he approached the area where Joseph’s ship and the
other ship were positioned, he looked up and saw Shropshire

129 There was an overnight break in Gerdes’ cross-examination.
Then, when cross-examination was terminated the next day, Respon-
dent’s counsel pleaded for an additional 30-minute break for prepara-
tion of Gerdes’ redirect examination. Upon return from that (second)
break, Gerdes changed his testimony to say that there was a rule against
maintenance electricians’ going to the ground between 11:30 and 12
noon without permission from their foremen. Gerdes’ revised testimony
was incredible.
AVONDALE INDUSTRIES

1151
standing on an upper level of Joseph’s ship. Shropshire, who
could not have been heard from that distance, was motioning to
Chaisson to look toward the maintenance cage. Chaisson
stopped, and, shortly thereafter, Joseph came out from between
the two ships. Chaisson and Joseph made eye contact; then
Joseph stopped and turned around, and he started walking in the
opposite direction (back toward the cage). Joseph stopped
again, then turned again to face Chaisson. Chaisson, who was
then within speaking distance, told Joseph, “John, you got
caught again.” (Chaisson testified that he was referring to pre-
vious times that he had caught Joseph loafing and that he had,
on those occasions, told Joseph to get to work.) Chaisson fur-
ther testified that Joseph replied that he wanted to sign out on
the MCR and go home. As Joseph described, Chaisson handed
Joseph the MCR to sign out, but he also told him that he would
be receiving a warning notice for being off the ship early. Jo-
seph then signed the MCR and left. By that time, Chaisson
further testified, it was still 8 or 10 minutes before noon. After
the lunch period was over at 12:30, Chaisson contacted
McGoey and told him what had happened; McGoey told Chais-
son to draft a warning notice to issue on May 9 when Joseph
returned from his vacation.
Terry testified that when McGoey brought Joseph to him on
May 9 and told him what had happened, he again reviewed the
file and noted that Joseph had the “Final, Final” warning notice
quoted above, and he noted that Joseph had a “final” warning
notice before that. He spoke to Joseph and:

I reminded Mr. Joseph of the previous citation that I
was directly involved in with the—my handwriting of the
Final, Final warning for any future offenses. As I recall, it
was within a 30-day period. They were very close to one
another, and I told him that my decision was based on his
actions of quitting work early and leaving the work place.
I had decided that I would terminate him. . . .
Mr. Joseph tried to explain to me that he had gone
down to the container to do some work. And he didn’t
admit to me that he had actually left early, as I recall.
But I told him that the supervisors had told me that
they had observed him sitting down in the cage and not
doing any productive work during work time.

Further on direct examination, Terry was asked and he testified
(vol. 91):

Q. Okay. Why did you make the decision to terminate
Mr. John Joseph?

. . . .

THE WITNESS: I have already explained that. I will go
through it again, if you would—think it is necessary.

Actually, Terry had “explained” only what he had told Joseph,
but he had not testified that what he told Joseph was, in fact, the
reason for Joseph’s discharge. Terry’s only prior explanation of
the discharge came when he was called by the General Counsel
(vol. 59) and examined pursuant to Federal Rules of Evidence
611(c). Terry had then testified: “Well, this man had a Final,
Final warning, sir. I have already testified to that. And now we
have a similar or same offense. He is a prime candidate for
termination.”
It is true, as the General Counsel points out on brief, that
during cross-examination Terry was asked and he testified:

Q. Could you tell us the reason that Mr. Joseph was
discharged?

. . . .

THE WITNESS: He was discharged for leaving the work
place without permission and quitting work early.

However, immediately before giving that answer Terry testified
that, when contemplating Joseph’s discharge on May 9, he
reviewed Joseph’s April 15 warning notice; Terry testified: “So
here is an employee with a current history of goofing off, if you
will, and disappearing from the job. And I [had] personally put
him on notice that this was unacceptable conduct, and the con-
duct continued.” Therefore, a fair construction of Terry’s testi-
mony is that Joseph was discharged because of his conduct of
April 29 and because that conduct closely followed Joseph’s
conduct of April 14 for which he had received a “Final, Final”
warning notice. The General Counsel contends that, although
Terry testified that he told Joseph that he was discharging Jo-
seph because his conduct of April 29 had closely followed his
conduct of April 14 (when Joseph got the “Final, Final” warn-
ing against exactly such conduct), Terry did not testify that, in
fact, this was the reason for the discharge. I believe that this
argument comes too close to a contention that Respondent’s
witnesses must use some “magic words,” to meet its Wright
Line burden, and I reject it.
Joseph’s Discharge—Credibility Resolutions
and Conclusions
As his “Employee Comment,” Joseph wrote on the May 9
warning notice: “Maintenance electrician en route to obtain
streamers in connection with job assignment. Was not aware of
time.” He did not write on that warning notice that he was “en
route” to sign out on the MCR because he had been planning to
leave on vacation at noon on April 29. Nor did Joseph testify
that he told Terry that he had been away from his working area
because he had been looking for Chaisson to sign out; Joseph
testified that he told Terry that he had been inside the cage
making streamers. Moreover, even according to his own testi-
mony, Joseph’s statement to Chaisson that he wanted to sign
the MCR and leave for the day came in reply to Chaisson’s
statement that he was going to be issued a warning notice.
From his own testimony I would conclude that Joseph had no
thought of leaving at noon until he was seen, out of his work
area, by Chaisson and told that he was to be issued a warning
notice.
I do not believe certain testimony by McGoey that he also
witnessed loafing by Joseph on April 29, but I do believe
Shropshire’s testimony that he saw Joseph in the cage, about
11:45 and for about 5 or 6 minutes thereafter, sitting, doing
nothing. Most importantly, I further believe Chaisson’s testi-
mony that, about 11:52, when he first saw him, Joseph was
walking away from the area of the maintenance cage; then,
when Joseph saw Chaisson, he turned away from Chaisson;
then Joseph turned around again, and, facing Chaisson, asked if
he could sign out for the day. Again, if Joseph had previously
decided to leave early that day, and if he had been looking for
Chaisson in order to sign the MCR, he would have immediately
greeted Chaisson with a request to sign the MCR; Joseph would
not have initially turned his back on Chaisson as Chaisson,
credibly, described. Moreover, when he was told that he would
be issued a warning notice for being away from his work area,
Joseph did not protest that he was where Chaisson had found
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1152
him because he was then looking for Chaisson to sign out. That
is, the request to leave early was a thought that came to Joseph
after, not before, he was seen well out of his work area by Cha-
isson.
In summary, I do not believe Joseph’s testimony that he de-
cided to start his vacation at noon on April 29 while he was still
in the cage, working. I believe, and find, that Joseph had pos-
sessed no intention of leaving at noon until he was seen by
Chaisson at a place that could not be explained in terms of Jo-
seph’s doing any work. Joseph had been loafing, and he had
been away from his workplace, and his supervisors knew it. I
find the warning notice of May 9 was issued for this reason. I
conclude that Respondent has shown that it would have issued
a warning notice to Joseph for his conduct of April 29 even in
the absence of his prounion sympathies, and I shall recommend
dismissal of the allegation that the warning notice was issued in
violation of Section 8(a)(3).
Terry testified that he discharged Joseph for his conduct of
April 29 which followed so closely Joseph’s conduct of April
14, for which Joseph had been issued a “Final, Final” warning
notice. This much of Terry’s testimony was true. Additionally,
when Joseph received the “Final, Final” warning notice of
April 15, he also received the December 7 warning notice that
included, “Recommend termination.” And Joseph had also
received, on October 21, another “final” warning notice. The
General Counsel has shown no similar circumstance where an
employee was allowed to remain employed. Finally, Joseph did
not wear prounion insignia, and his prounion conduct (asking
Terry if he did not think the employees cared about their fu-
tures, telling Robicheaux that there would be no interest in the
Union if there were a better relationship between management
and the employees, and telling Chaisson that he had received
training in an IBEW apprenticeship plan) can only be described
as minimal. I find no possible nexus between that minimal
prounion conduct and Joseph’s discharge. I further conclude
that because of his proven misconduct, Respondent has shown
that it would have discharged Joseph even absent any prounion
sympathies that he may have held. I shall therefore recommend
dismissal of that allegation of the complaint.
h. Julie George’s discharge for loafing and having prior warn-
ing notices
Julie George (vol. 29) was employed as a laborer in the
Clean-up During Construction (CDC) Department until she was
discharged on July 28, 1993. The second complaint, at para-
graph 108, alleges that by discharging George Respondent vio-
lated Section 8(a)(3). The General Counsel contends that Re-
spondent discharged George because of her known union ac-
tivities and expressions of sympathy which included her speak-
ing up for the Union at an employer campaign meeting and,
after the June 25 Board election, wearing prounion insignia.
The General Counsel further alleges that, in violation of Sec-
tion 8(a)(1), George was interrogated and threatened with dis-
charge or other discipline. Respondent denies that the threats
and the interrogation occurred. Respondent further denies that
its supervisors had knowledge of any union activities or sympa-
thies of George at any relevant time. Respondent further an-
swers that George was discharged solely because she commit-
ted the disciplinary offense of loafing on July 28, at which time
she had a poor disciplinary record. George’s disciplinary record
at the time of her discharge included the receipt of five warning
notices that she had been issued within the 12 months preced-
ing her discharge and one warning notice that had been issued
some 16 months before her discharge. Respondent concedes
that this last notice, dated March 30, 1992, was a factor in the
discharge. While not disputing the validity of the five warning
notices that George received in the 12 months prior to her dis-
charge, the General Counsel contends that George was not
loafing on July 28 and that the assigned reason for discharge is
a pretext. The General Counsel further argues to be further
evidence of pretext the undisputed fact that the supervisors who
discharged George additionally counted against her the 16-
month-old warning notice, although supervisors consistently
admitted that warning notices in excess of 12 months old
should not be counted against employees. Alternatively, the
General Counsel answers that, even given the fact that George
had validly been issued five warning notices during the 12
months before July 28, and further assuming that she commit-
ted another disciplinary offense on that date, George was never-
theless treated disparately because other employees received six
or more warning notices in 12-month periods without being
discharged. Ultimately, I find and conclude that George com-
mitted the disciplinary offense of loafing on July 28; however, I
further find that Respondent’s supervisors used the 16-month-
old warning notice against George as part of a pretextual basis
for the discharge, in contravention of its own policies, and that
George was discharged pretextually, and disparately, in viola-
tion of Section 8(a)(3).
George did cleaning work under the supervision of Foreman
Billy Ledet and Lead Foreman Ruben Barrios. George testified
that in late April or early May, she and other employees at-
tended an employer campaign meeting that was conducted by
Barrios, Ledet, and CDC superintendent Leroy Cortez. At the
end of the presentation, when questions were taken, George
asked, “[I]f the Union came in would the workers be treated
fairly and that the friends and relatives won’t be the only ones
with good jobs.” George testified Cortez answered that the
employees would be treated fairly.
Ledet (vol. 150) acknowledged on cross-examination that he
did not remember George. Neither Cortez (vols. 96, 97) nor
Barrios (vol. 149) denied that George asked such a question in
an employer campaign meeting. I found George’s testimony on
the point to be credible, and I find that her statement was one
that voiced a commonly held complaint (real or imagined)
about favoritism and a suggestion that the Union might remedy
such.
George testified that in late May Ledet gave her conflicting
orders as she worked. She testified: “I told him that was why
the Union was coming in because of crazy things like that.”
Ledet, red-faced, replied that George should not mention the
Union in such exchanges. Ledet then left the work area. Later,
Ledet returned and took George to meet Cortez in Barrios’
office. There, according to George:

[Cortez] told me that he didn’t care if I voted for the Union or
not. I was not to say anything about the Union.

. . . .

I told him that Billy Ledet was harassing me because I
was for the Union.
After he told me that I wasn’t supposed to say any-
thing about the Union, [then] Billy Ledet came in, and he
[Cortez] told him [Ledet], “She said ‘the word’; sign her
out and send her to Employee Relations.”

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1153
George testified that she told Cortez that she did not want to go
to “Employee Relations,” apparently the human resources de-
partment, but Cortez insisted. George testified that she went to
the “employment building” after Ledet signed her out on his
MCR; at the human resources department she was told that her
accusations about Ledet would be looked into. Based on
George’s testimony, paragraph 30 of the second complaint
alleges that Respondent, by Cortez, threatened its employees
with unspecified reprisals.130
In an attempt to undermine George’s testimony about what
Cortez told her, Respondent presented Ledet who flatly denied
taking George to Cortez to talk about the Union and denied that
Cortez ever told him to sign an employee out and send him or
her to the human resources department. Of course, Ledet also
acknowledged not remembering George, so this is not a credi-
ble denial of what Cortez may have said to George. Respondent
also introduced George’s MCRs for the period from May 17
through June 28; none shows that she was ever signed out “to
employee relations.” Ledet’s MCR for May 26, however,
shows that George was signed out on a “Pass to First Aid” from
9:09 until 9:33. A 24-minute round-trip to the first aid depart-
ment would be remarkable; moreover, there is no testimony
that George asked for a pass to go to, and went to, the medical
department at that time. The personnel building is adjacent to
the medical department’s building. Ledet was not asked if Cor-
tez ever used the expression “the word,” in reference to what
should be done with an employee. More importantly, Cortez
did not make the denials that were attempted for him by Ledet
(and attempted for him by Counsel through presentation of the
MCRs). Specifically, Cortez did not dispute George’s testi-
mony about what she said to Cortez and what Cortez said to
her; and Cortez did not deny telling Ledet to sign out George
and send her to the “Employee Relations” department because
she had said “the word,” to wit: “Union.” I credit George’s
testimony.
The issue thus becomes whether telling an employee not to
use the word “union” in confrontations with management, and
sending the employee to its personnel department, over the
employee’s objection, constitutes a threat of unspecified repri-
sals, in violation of Section 8(a)(1). At minimum, the objecting
employee is not going to feel too comfortable about the situa-
tion. Moreover, being sent away from the work place, if ever so
briefly, would give the employee the distinct impression that
she is being singled out for punishment, if not opprobrium
(much like an elementary school child who is told by a teacher
to go to the principal’s office). The employee is naturally going
to be inhibited in future dealings with her supervisors. And, in
this case, the fear is engendered because of the employer’s
outrage at the employee’s using the term “union” in discourse
with the supervisor. To create such fear in an employee is nec-
essarily to threaten her. I conclude that Respondent, in violation
of Section 8(a)(1), by Cortez, in late May 1993, threatened its
employees with unspecified reprisals because they mentioned
the word “union” in discourse with supervisors.
George testified that 1 or 2 days after being sent to the hu-
man resources department, she was approached by Ledet as she
worked. According to George:

130 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against George, as well as the
charge in Case 15–CA–12171–1.

He came up to me and asked me how I felt about the
Union. . . . He told me that his boss had wanted him to ask
all the employees how they felt about the Union. . . .
I told him I didn’t have anything to say. . . .
He kept on asking the same questions over and over
again saying that he had to go back and tell him some-
thing. . . .
I told him that I had a couple of questions about the
Union.

Ledet told George that Cortez could answer her questions; Le-
det escorted George to Barrios’ office in the platen area where
she again met Cortez. Ledet left, and George conversed with
Cortez. According to George:

I started asking him questions. I asked him if the Un-
ion came in would the yard close down? . . . He said yes. .
. . I asked him if the Union comes in will we get more
money. . . .
He said, “If Avondale doesn’t have any money, we
won’t get any.” . . .
I [asked] him that if it rains in the morning, and we get
sent home will we get paid for the time that we came up if
the Union comes in. . . . He said no. . . .
He asked me if I had any more questions. . . .
I told him no. . . . I went back to work.

Based on this testimony by George, paragraph 32 of the second
complaint alleges that Respondent, by Ledet, interrogated its
employees.131 Further based on this testimony, paragraph 31 of
the second complaint, alleges that Respondent, by Cortez,
“threatened its employees with plant closure, more onerous
working conditions, and reduced benefits if they selected the
Union as their bargaining representative.”132
On direct examination Ledet denied having asked any em-
ployee about his or her prounion sympathies; Ledet was asked
what instructions he could remember from the TIPS meetings;
he responded: “It is too far back.” On cross-examination, as
noted, Ledet acknowledged that he could not remember
George. Ledet denied taking any employee to Cortez to talk
about the Union. Cortez, however, testified that “many times”
his foremen brought employees to him to get answers about the
effects of organization by the Union. George impressed me
favorably in her testimony about her approach by Ledet, and I
do credit her testimony. I conclude that, as alleged, Respondent,
in violation of Section 8(a)(1), by Ledet, in late May 1993,
interrogated its employees about their union membership, ac-
tivities, or desires.
George’s testimony that Cortez told her that employees
would not get money that Respondent did not have, and that
employees would not be paid for reporting (“the time that we
came up”) on days that they got rained out, were not threats of
reduced benefits or more onerous working conditions. The
comment about wages was pure argument, and the employees
were not being paid reporting pay at the time, anyway. Finally,
I do not believe that, upon being threatened with plant closure,
George then asked if the employees would get a raise if the
Union were selected as their collective-bargaining representa-
tive. I credit Cortez’ denial of the threat of plant closure. I shall

131 Id.
132 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1154
recommend that paragraph 31 of the second complaint be dis-
missed.
George testified that she was absent for surgery for the 3
weeks before the June 25 Board election. When she went to
vote, she wore, for the first time, a union sticker on her blouse.
On the first workday after the election, June 28, she placed the
sticker on her hardhat, and she did not remove it through the
date of her discharge. The supervisors involved in George’s
discharge denied remembering that George wore prounion in-
signia, but I credit her testimony in this regard.
George’s Discharge—the General Counsel’s Evidence
On July 28, George and employee Abbey Howard were as-
signed cleaning duties in the fabrication area under the direct
supervision of Lead Foreman Barrios (not Ledet, who was then
assigned to another area of the yard). On that date George and
Howard were accused of loafing. George was discharged, and
Howard was given a warning notice. Howard did not testify.
George testified that she and Howard were cleaning on the
second level of a unit when, about 9:30, they decided to sit
down to take a break. Except for the half-hour unpaid lunch
period, there are no established breaks during the day; however,
on cross-examination, Barrios testified that CDC employees are
permitted to take 10-minute breaks, between 9 and 10, at which
time they may just relax or they may eat something they have
brought with them; Barrios also testified that employees may
even leave the work area to get something to eat or drink from
vending machines. Therefore, there is no dispute that CDC
employees, such as George and Howard, could take some break
during the morning; the questions are when, and for how long,
George and Howard did so on July 28.
George testified that after she and Howard sat down, two
men came up a ladder to the second level of the unit. George
did not know who the men were, but she knew they were su-
pervisors because they were wearing white hardhats. The men
looked around the area for 5 minutes, and then they left without
saying anything to George or Howard. George and Howard
continued to sit after the two men left the second level. Then,
further according to George, Carol Danos, vice president for
construction, climbed the ladder to the second level. (George
knew Danos by sight; the March 1992 warning notice men-
tioned above was issued after Danos found George loafing.)
George testified that she and Howard stood up as soon as they
saw Danos. Danos walked over to George and Howard and
asked them only where they were taking their trash that day;
upon receiving the answer, Danos left the area. George testified
that the break that she and Howard took lasted “[a]bout 15
minutes.”
On cross-examination, George was asked and she testified:

Q. Why did[n’t] you stay seated when you saw Carol
Danos coming up?
A. Because he was—because I needed to get up.
Q. When you say you needed to get up, what do you
mean? . . .
THE WITNESS: He was our boss.
Q. [By Ms. Canny]: And why did you know you had to
get up when you saw your boss?
A. Because I didn’t want him to see—catch me sitting
down.
Q. Is that because you weren’t supposed to be sitting
down?
A. Yes.

George further testified on direct examination that later in the
morning, Barrios appeared and told Howard and George that
Cortez wanted to see them. George and Howard went to Bar-
rios’ office where Cortez interviewed them separately; Howard
was interviewed first. George testified that, after Howard left
the office and she went in, Cortez told her that she and Howard
had been caught sitting down on the unit by Danos. George told
Cortez that she and Howard had taken a break because it was
hot, and, furthermore, some birth control pills that she had re-
cently taken for the first time had made her sick. Cortez asked
if she and Howard had been eating, and she denied it. George
further testified:

He [Cortez] told me that Danos had told him to write
us up, and [then] he said, “In your case you can’t be writ-
ten up, so go back to work and I will see what I can do
about you.”

At trial, George denied that she or Howard had been eating
when Danos came on the platen; she did not, however, testify
that the birth control pills had, in fact, made her sick.
George further testified on direct examination that she left
Cortez’ office and went back to work, as Cortez had instructed.
Later in the morning she was approached by Barrios who told
her that she was discharged; Barrios walked George to the area
of his office. George was asked and she testified:

Q. And what, if any, conversation did you have with
Mr. Barrios as you went with him?
A. He told me that . . . they were firing me because I
had seven citations.

George went to the office to retrieve a bag that she had left
there. In Barrios’ office she again met Cortez. According to
George, Cortez told her: “Whoever or whenever you go to
make a claim with the Union or whoever, don’t forget to tell
them that I didn’t fire you, the vice president did.” George left
the plant.
George’s Discharge—Respondent’s Evidence
Welding Department Superintendent Norris Pertuit (vol.
104) testified that he was present with Danos and Shipfitting
Department General Foreman David Zeringue on July 28 when
they came across George and Howard on the platen. Neither
Danos nor Zeringue testified. Pertuit testified that, “around
8:00, 8:30—somewhere around there,” he and Zeringue
climbed the ladder to the second deck and found George and
Howard sitting, “eating breakfast.” Further according to Pertuit,
“And when Carrol Danos came up, that is when they got up.
And he [Danos] went and talked to them.” Pertuit did not hear
what was said between the women and Danos. After Danos
finished speaking to them, the women went to work. Danos
rejoined Pertuit and Zeringue, but the three men did not discuss
what George and Howard had been doing (or not doing) among
themselves. On cross-examination, Pertuit acknowledged that
he could not remember what it was that George and Howard
had been eating on the unit that gave him the impression that
they were “eating breakfast.”
Barrios testified that he was first informed of the conduct of
George and Howard during the morning of July 28 by Ledet.
Barrios was out in the yard when he was radioed by Ledet who
asked Barrios to return to Barrios’ office. When Barrios ar-
rived, Ledet was there with Howard and George. According to
Barrios:

AVONDALE INDUSTRIES

1155
He [Ledet] told me that one of the vice presidents and
some superintendents had observed these two people sit-
ting on a unit, eating, and they made no attempt to move.
And when they asked them what they were doing, they
said they were eating.

Barrios testified that Ledet did not tell him where he had gotten
his information about what the vice president and superinten-
dents had seen. (This testimony, of course, conflicts with
George’s testimony that she and Howard went to the office area
upon Barrios’ coming to their work area and telling them that
Cortez wanted to see them. Also, Ledet testified that he had
been transferred to a different area of the shipyard by July 28
and that he had nothing to do with George’s discharge; Ledet
testified that he learned of the incident only when he was sub-
sequently reassigned to the area.)
Barrios further testified that upon receiving Ledet’s report,
he called Cortez and asked Cortez to come to Barrios’ office.
(As it will be seen, however, Cortez testified that he did not
speak to Barrios that morning before he went to the area; Cor-
tez testified that he went to the area that morning only after a
call from Danos that indicated that he should do so.) Further
according to Barrios, when Cortez arrived, and as Howard and
George stood next to him:

I told [Cortez] that Mr. Carrol Danos and Mr. [Laur-
ence] Torres and Mr. Zeringue observed these people sit-
ting on the unit as they climbed the unit. They were going
up to the unit to check it out or something, and as they
climbed they saw them. They were right there, sitting
down eating. And they were asked what they were doing,
and they said they were eating, and they didn’t make any
attempt to get up or get out of the way.

(On cross-examination, Barrios testified that Ledet was also
present when he gave this report to Cortez. Again, Ledet testi-
fied that he was not in the area that day. Laurence Torres was
superintendent of the shipfitting department; Pertuit did not
identify Torres as being someone who was with the Danos
party when it discovered Howard and George; Pertuit identified
only himself, Danos, and Zeringue as being there.)
Further according to Barrios, Cortez left Barrios’ office to
return to his own office. Barrios, George, and Howard waited in
Barrios’ office area for Cortez, saying nothing to each other.
Cortez returned with the departmental personnel files of George
and Howard. After reviewing the files in Barrios’ office, Cortez
interviewed George and Howard separately. Barrios further
testified that he was present when, after Cortez reviewed the
personnel file of George, Cortez told George that “he could not
give her another write-up. He would have to terminate her.”
On cross-examination, Barrios, who, again, was the direct
supervisor of Howard and George on July 28, was asked and he
testified:

Q. So if you saw someone eating—taking a break for
about ten minutes, that would be tolerable?
A. To me, it would be, providing it wasn’t in a con-
spicuous place where they could be seen by every Tom,
Dick, and Harry in the yard. . . . Some of them [the em-
ployees] go to the [vending machine] stands and they buy
their drink, and they drink it on their way back to the job.

On redirect examination, Barrios was asked and he testified:

Q. You were asked some questions about taking breaks
and eating a snack in the mornings. What was wrong, if
anything, with what you were informed Julie [George] and
Abby [Howard] had been doing? . . .
THE WITNESS: They were considered—since—I mean,
anybody that is sitting down on the job, and a superinten-
dent or something like that walks in—even though you are
caught, you should get up. And they were just—they just
stayed there. They didn’t care, you know, as far as I know.
And they considered them [to be] loitering.

Presumably, the “they” to whom Barrios referred were Danos
and the supervisors who had been with him.
On direct examination Cortez (vol. 96) testified that, be-
tween 8 and 8:30 on July 28:

Mr. [Carroll] Danos called my office that morning and
told me that he had caught two employees on one of his
inspections of a unit sitting down, eating breakfast at—
roughly between 8:00 and 8:30 in the morning, and that at
that time he told me over the phone that he had wanted
both employees terminated. . . . He told me to get to the
unit immediately and [then] to see him.

Cortez started toward the area; he got to the levee where he
came upon Danos and Pertuit. According to Cortez:

Again, Mr. Danos explained to me pretty much what
the conversation of the foreman was. He had caught two
employees—he and the group of gentlemen that was walk-
ing with him, being supervisors and foremen, walked upon
two of my employees sitting on the unit. These two em-
ployees were eating breakfast.
And when Mr. Danos and the group of people ap-
proached them, they had—were not in a rush at all to get
up. They just continued to eat, and they was taking their
own good old time about getting up and returning to work.
And that point he told me, “I want you to investigate it
and I want you to terminate both of the employees.”

Cortez testified that Danos did not say who the employees were
that Danos had seen. Cortez testified that he then went on to
Barrios’ office where Barrios told him that Danos had spoken
to him about the conduct of George and Howard. (Cortez was
asked who was at Barrios’ office when he got there; Cortez
named Barrios, George and Howard; he did not place Ledet
there, as did Barrios. Also, Cortez testified on cross-
examination that Barrios told him that he got the information
contained in his report from Danos “personally.”)
Cortez testified that, after listening to Barrios, George, and
Howard, he called his clerk, Sharon Cortez. (Sharon Cortez is
not related to Leroy Cortez; in this section of the decision, ref-
erences to “Cortez” are to Leroy Cortez, not Ms. Cortez.) Cor-
tez testified that Ms. Cortez told him that Howard had one or
two warning notices, but that George had been “what we called
blue-lined.” Cortez was then asked and he testified:

Q. And what does blue-lined mean?
A. Blue-lined means an employee has a group of cita-
tions in their folder, and they have come to a point where
we are not going to write—we can’t write them up any
more, or they are in—they have got themselves in trouble
where we have got to look at this folder closely before we
write them up anymore.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1156
Q. Is there a number of citations that results in some-
one getting blue-lined? . . .
THE WITNESS: When it gets to the four or five mark, or
it ould be the two mark, depending on what the violation
is. If the employee does the same violation twice, then the
third citation would warrant a discharge. But then, again,
if an employee has different violations—absenteeism,
safety violation, and only one wasting time, then those
matters are taken into consideration.

On cross-examination, Cortez testified that the blue-lining re-
cords were maintained by Ms. Cortez, and, when a foreman or
general foreman under him asks that a warning notice be
drafted, “Sharon can automatically look at the book and note
how many citations the employee already has. And if he or she
has more than three citations, or more than two citations, for a
certain violation, it is just a code—the way we use the blue line;
it means I should go look at the folder.”
Cortez testified that upon hearing from Ms. Cortez, he went
to his office, and then he returned with the departmental files of
Howard and George. Cortez testified that his review of How-
ard’s file disclosed that she only had two warning notices, both
for attendance problems. Cortez testified that he decided only
to give Howard a warning notice because her two prior warning
notices were for absenteeism, not loafing. He called Howard
into Barrios’ office and told her that she would be getting a
warning notice. After Howard left, he called George into his
office and reviewed her prior warning notices with her.
Cortez testified that his review of George’s file disclosed six
prior warning notices, all of which he considered: (1) a March
30, 1992 warning notice signed by Cortez, himself; the box for
General Offense-4 is marked, and it states, “Employee was
noted out of work area and talking to two other employees.
Noted by L. Cortez and C. Danos.” (2) a September 14, 1992
warning notice for absenteeism; (3) a November 20, 1992
warning notice for quitting work between 3:20 and 3:30 (a
loafing-type of offense, as will be discussed in more detail in
the cases of other alleged discriminatees); (4) a December 21,
1992 warning notice for not wearing safety eyewear in a pro-
duction area; (5) an April 15, 1993 warning notice, again, for
not wearing safety eyewear; and (6) a July 8, 1993 warning
notice for absenteeism. Both the fourth and fifth warning no-
tices were marked “Final Warning.” Cortez was asked if he
considered any of these six warning notices more important
than the others. Cortez testified:

Exhibit 473 [the March 30, 1992, warning notice] is
important because of the handwritten a the bottom, and my
handwriting, “Employee was noted out of the work area
and talking to another employee by myself and Mr. Da-
nos.” It was the second time that our vice president had
caught this employee apparently not doing the work as-
signed.133
And 472 [the September 14, 1992, warning notice] is
because—it is on the same lines as wasting time, so that is
quitting work early, washing up. It is wasting time, not be-
ing in the work area that is assigned.

133 The Tr., vol. 96, p. 22,375, LL. 19–21, is corrected to move the
reporter’s closing quotation mark from the ending of the second sen-
tence of this paragraph to the ending of the first sentence.
The March 30, 1992 warning notice was, of course, more than
12 months old; precisely, on July 28 it was 2 days short of be-
ing 16 months old.
Cortez testified that after going over the warning notices
with George, he asked George “to step out while I further in-
vestigated—out of the office.” Cortez testified that, while
George was outside of the office, he called Personnel Officer
Bruce Nunez, “[b]ecause it was Mr. Danos and other foremen
that caught her, and I wasn’t exactly sure how I would handle it
and if I was doing the proper thing.” Cortez testified he re-
viewed all warning notices with Nunez. According to Cortez:

He [Nunez] told me that my decision to terminate[,] or
Mr. Danos’ decision to terminate[,] was very—that the
Company would agree with that[,] or his [Nunez’] stance
would be with that[,] because of the number of citations
and the number of times that this employee has broke
company rules, and this being the third time that she has
created a—broke a rule such as wasting time.

(As I indicate by the bracketed commas, Cortez here was not
using “or” as a conjunction; he was using it to “back up” and
change his testimony. When Nunez testified (vols. 65, 66, 117,
154, and 156), he was asked nothing about George’s case.
Cortez testified that after speaking to Nunez:

I told Ms. George that I had reviewed her files and
talked to Personnel, Mr. Bruce Nunez, and at that point
she was being terminated for the fact that she was also
caught once before by Mr. Danos and myself . . . . And I
told her that she was being terminated at that time for ex-
cessive citations and wasting time.

Cortez testified that George had not been terminated before
July 28 because she had never before received a third citation
for one type of misconduct, two of her prior warning notices
having been for safety violations, two for absenteeism, and two
for loafing-type offenses, one of which, again, was the March,
30, 1992 warning notice.134 Cortez denied that he told George
that it had been the vice president who had caused her dis-
charge.
On cross-examination, Cortez testified that he discharged
George immediately after hanging up the telephone from his
conversation with Nunez; on direct examination, however,
Cortez had testified that he spoke to George later in the day.
Cortez’ direct examination on this point is more consistent with
the facts as I find them. Cortez acknowledged that his reference
to “once before” when discharging George was a reference to
the March 1992 incident.
Further on cross-examination Cortez testified that he, not
Danos, made the decision to discharge George. Cortez was then
asked and he testified:

Q. And do you have any recollection of why you fired
[Julie George]?

134 As noted, George’s warning notice of April 15 for not wearing
safety eyewear, and her July 8 warning notice for absenteeism, are both
marked “Final Warning.” Additionally, the April 15 warning notice
further stated “Violation of any other company rules or regulations will
result in your termination.” Of course, George was not terminated upon
receipt of the July 8 warning notice for absenteeism, despite the “any
other company rules or regulations” language on the April 15 warning
notice. Again, the actual finality of Respondent’s finality language on
warning notices was a sometimes thing.
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1157
A. She was terminated, if I am correct, sir, for—she
was caught on the job by Mr. Carroll Danos.
Q. So is that the reason you fired her, because he was
caught on the job by Carroll Danos?
A. She was fired because of the number of citations
which was in her folder and the number of times that she
broke the rule of wasting time.

As noted, George’s March 20, 1992, warning notice was 16
months old, and Cortez testified that he considered it “impor-
tant” in determining to discharge George on July 28, 1993. On
cross-examination Cortez was further asked and he testified:

Q. [By Mr. Bensinger]: And could you tell us in what
circumstances, if any, you consider citations more than 12
months old when deciding to discipline or fire someone?
A. When a citation is so close to the 12 months and the
person was caught twice by the same assistant vice presi-
dent or vice president, that would warrant to be closer
looked at.
Q. Now, is there any other circumstance other than the
one you just specified where you consider citations more
than 12 months old?
A. As I said earlier in my testimony, there is excep-
tions for every rule. We do look at all citations.

Aside from the circumstance where a vice president witnesses
an infraction (or second infraction), Cortez could name no other
circumstance where, when contemplating a discharge, he would
count against an employee warning notices that were more than
12 months old.
Ms. Cortez (vol. 144, 145) testified that, as she serves as the
CDC clerk, foremen call her and ask that warning notices be
drafted for employees and that all warning notices are reviewed
by Cortez. On cross-examination Ms. Cortez was asked about
the blue-line procedure and for how long warning notices are
considered by Cortez. She testified that warning notices that are
more than 12 months old are “voided.”
George’s Discharge—General Counsel’s Rebuttal Evidence
As rebuttal evidence, and as evidence of disparate treatment
of George, the General Counsel relies on the facts represented
by Appendices A and B; to wit: during the 5-year period from
1990 through 1994, some 91 employees received six or more
warning notices in 12-month periods without being discharged.
Also, the General Counsel relies on further cross-examination
of Cortez and other facts that were proved as evidence that
George was treated disparately.
Cortez testified on cross-examination that Howard was not
discharged along with George because his review of Howard’s
file proved that she had only two prior warning notices, neither
of which were for loafing. Howard’s two prior warning notices
are dated April 14 and May 3, 1993. The former is for failing to
call in absences; the latter is for three absences in a 30-day
period. The latter is also marked “Violation of any other Com-
pany rules or regulations will result in your termination. Final
Warning.” In explaining why Howard was not discharged on
July 28, despite the broad language of this final warning, Cor-
tez testified:

Again, if she [Howard] would have had a number of
different violations of different company rules, it would
have been taken into consideration. Again, if she would
have missed time, those two [warning notices of April 14
and May 3] would have—yes. They were taken into con-
sideration, but, again, as I stated before, she did not—she
was [on July 28] being reprimanded for something of a to-
tally different nature, and that is why these didn’t carry
much weight.

Cortez was then asked, and he testified:

Q. Now, the language, “Violation of any other com-
pany rules or regulations”—that is construed to only apply
to absenteeism and call-in procedure?
A. That is the way I would read it. Yes. I understand
what you read it into, but that is the way my system works
and that is the way I would read it. Yes.

After Cortez testified, Respondent placed in evidence a warning
notice that Howard received on September 27, after the dis-
charge of George but, of course, within 12 months of her April
14 and May 3 warning notices. The September 27 warning
notice was also for absenteeism. Howard was not discharged
for this third absenteeism offense in 12 months, as proven by
Howard’s personnel card that shows that she continued her
employment into 1994.
Further on cross-examination, Cortez was shown three warn-
ing notices that had been issued to employee Johnnie Burton
(who was the General Counsel’s witness on other matters). The
three warning notices were issued within a 12-month period
ending June 28, 1994. All were issued by CDC Foreman Roy
Toledano, and are for wasting time. Cortez testified that he did
not discharge Burton, even after his third similar offense, be-
cause:

All three of these citations [to Burton] are for the same
thing. Correct. But they are also all by the same foreman,
so in my mind, I wanted to make sure that Mr. Burton and
Mr. Roy Toledano didn’t have some kind of problem with
one another, so I thought Mr. Burton deserved another
chance to prove himself for another foreman.

Further in rebuttal, the General Counsel also showed that CDC
employee Anthony Davis received six warning notices between
March 15, 1993, and February 24, 1994. Five of these are for
attendance-related discipline offenses; the sixth warning notice
(which is one of the attendance-related warning notices) is
marked “Final Warning.” I find that Davis was not discharged
upon issuance of this last warning; I do so because (1) Cortez
presumably would not have given an express “Final Warning”
to someone he was discharging; and (2) more importantly, Re-
spondent did not challenge the testimony in support of the Gen-
eral Counsel’s Exhibit 364 which lists Davis as not being dis-
charged after receiving three warning notices in February 1994
(as explained above in the case of discriminatee Marshall).
George’s Discharge—Credibility Resolutions
and Conclusions
The first issue is whether the General Counsel has presented
a prima facie case that George’s discharge was imposed unlaw-
fully. I have credited George’s testimony that she voiced the
commonly held grievance against favoritism at an early em-
ployer campaign meeting, and she suggested that the Union
might remedy such grievance. Moreover, in May, George told
Ledet that the Union would be successful because of the
“crazy” way that he was supervising her. Ledet told her not to
mention the Union again and took her to Cortez’ office. There,
as I have further found, she told Cortez that Ledet was harass-
ing her “because I was for the Union.” This was the plainest
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1158
statement of prounion sympathies. Moreover, as I have further
found, it was strong enough of a statement for Cortez to
threaten George by sending her to the human resources depart-
ment. Finally, I have credited George’s testimony that, from
June 28 through her discharge on July 28, she wore a “Union-
Yes” sticker on her hardhat. By doing so, George charged all of
her supervisors with knowledge of her prounion sympathies,
the denials notwithstanding. Specifically charged with this
knowledge is Danos who, as I find infra, made the decision to
discharge George. Respondent did not call Danos to deny
George’s testimony that, when she was confronted by Danos on
July 28, she was wearing the “Union-Yes” sticker on her hard-
hat. In International Automated Machines, 285 NLRB 1122,
1123 (1987), the Board rejected the rationale that, if a witnesses
is equally available to both the parties, no adverse inference can
be drawn if neither party calls him. As the Board stated, be-
cause the respondent in that case had failed to call one Davis, a
supervisor:

That rationale conflicts with the familiar rule, accepted by the
Board, that when a party fails to call a witness who may rea-
sonably be assumed to be favorably disposed to the party, an
adverse inference may be drawn regarding any factual ques-
tion on which the witness is likely to have knowledge. (2
Wigmore, Evidence, § 1A286 (2d ed. 1940); McCormick,
Evidence, § 1A272 (3d ed. 1984). See Greg Construction Co.,
277 NLRB 1411 (1985); Hadbar, 211 NLRB 333, 337
(1974).) In particular, it may be inferred that the witness, if
called, would have testified adversely to the party on that is-
sue. Ibid. Thus, while we recognize that an adverse inference
is unwarranted when both parties could have confidence in an
available witness’ objectivity, it is warranted in the instant
case, where the missing witness is a member of management,
and it supports the judge’s findings on the issues on which
Davis’ testimony would have been probative.

I do draw the inference that, had Danos been called to testify,
he would have admitted that George was wearing prounion
insignia when he approached her on July 28.135 I further draw
an adverse inference from the fact that, although he did testify,
Respondent did not ask Pertuit if George was wearing prounion
insignia on July 28.
Knowledge of George’s prounion sympathies is thus estab-
lished. Respondent’s animus toward such prounion employees
was made clear in the June 1 speech by Respondent’s chief
executive, Bossier, who labeled such prounion employees as
George “whiners, malcontents and slackers” who “want to de-
stroy Avondale,” simply because they did support the Union.
Moreover, such prounion insignia as George displayed were
often made the objects of threats to employees, as I have found
above, or as I do find infra. In view of Respondent’s animus
toward the employees who favored the Union, especially those
who wore prounion insignia, I conclude that a prima facie case
of unlawful discrimination against George has been established,
and the burden shifts to Respondent to demonstrate by a pre-
ponderance of the evidence that it would have taken the same
action against George even in the absence of her known pro-
tected activities. Respondent’s defenses must therefore be ex-
amined.

135 And, even if Danos did not make the decision to discharge
George, his observations and report to Cortez were what caused Cortez
to act against George.
It is first necessary to make a finding about something that
did not happen; Ledet did not tell Barrios about George’s con-
duct of July 28; I find that Danos did. Barrios testified that
Ledet brought George and Howard to Barrios’ office and that
Ledet told him that Howard and George had been loafing in the
presence of Danos, but Ledet did not tell Barrios how he got his
information (and, supposedly, Barrios did not ask). Ledet, how-
ever, testified that he was not working in the area and had noth-
ing to do with the events of July 28; he did not find out that
George was discharged for several days afterward. Barrios
testified that he called Cortez and asked him to come to Bar-
rios’ office; Cortez testified that he did not speak to Barrios
about the matter before he got to Barrios’ office. Cortez testi-
fied that, when he got to Barrios’ office, Barrios told him that
he had gotten his information from Danos “personally”; Bar-
rios, again, testified that he got his information from Ledet. It is
Respondent’s position that Danos, not Cortez, made the deci-
sion to discharge George, and it is obvious to me that Barrios
was making an attempt to take Danos out of the picture, as far
as the decision to terminate George was concerned. That is,
Barrios was lying in an attempt to convey the impression that it
was Cortez, not Danos, who made the decision to discharge
George. It was, indeed, Danos from whom Barrios had gotten
his information “personally” (as Cortez testified), and that in-
formation undoubtedly included an imperative that George be
discharged, as I find herein.136
I find the facts to be as follows: It is clear enough from the
testimony of both Cortez and Barrios that employees are al-
lowed to stop work for about 10 minutes between 9 and 10; and
they are allowed to eat a snack when they do so. George pre-
sumably knew this, but she did not testify that on July 28 she
told Danos (whose presence caused her to end her break) or
later Cortez (as he was contemplating the discharge) that she
was on a snack break to which she was entitled (because the
time had been closer to 9:30, as she testified). Also, George
admitted that she took a break for 15 minutes, and she did not
testify that she had been given reason to believe that she was
entitled to a break of that length. Pertuit was credible in his
testimony that, when he and Zeringue found Howard and
George, the employees were eating something. Moreover,
George’s admission on cross-examination that she and Howard
had not wanted Danos to catch them seated was an admission
that she and Howard were loafing when they should have been
working, whether they were eating or not. One matter, how-
ever, that is not in issue is what George and Howard did when
Danos reached the second level of the platen; as Pertuit testi-
fied: “And when Carrol Danos came up, that is when they got
up.” Although George and Howard rose when Danos came on
the second level, they obviously were not able to do so before
Danos saw them sitting. After Danos, and his party, saw
George and Howard sitting, Danos called Cortez and gave him
orders.
There can be no doubt that Danos made the decision to dis-
charge George. As quoted above, Cortez testified that, twice,
Danos “told” him to discharge George (and, according to Cor-
tez, Danos also told him to discharge Howard). Also, as quoted
above, at one point Cortez testified that when he called Nunez:

136 Barrios’ lie, that he heard about the Danos-George incident from
Foreman Ledet and not Vice President Danos, had to be conscious. A
lead foreman would not confuse a telephone call from his vice presi-
dent with a telephone call from his subordinate line foreman. This
factor contributes to my discrediting Barrios elsewhere.
AVONDALE INDUSTRIES

1159
“He [Nunez] told me that my decision to terminate[,] or Mr.
Danos’ decision to terminate . . . .” That is, although Cortez
first said that the decision was his, he immediately corrected
himself and said that it was “Mr. Danos’ decision.” And “Mr.
Danos’ decision,” I find, was that George, but not Howard, be
discharged.
The testimony of Cortez is that Danos gave him orders to
discharge both Howard and George, but he did not discharge
Howard because she had accumulated an insufficient number
(or kind) of warning notices. I do not believe this. I do not be-
lieve that Cortez got an order from his vice president that he
was to discharge Howard, as well as George, and then he just
disregarded the order because he did not think Howard had
accumulated a sufficient number of warning notices; certainly,
he did not do this without getting back to Danos and explaining
why the order to discharge both employees was not being car-
ried out. If Cortez had reconferred with Danos, and explained
why Howard was not being discharged, he would have so testi-
fied; and, presumably, so would have Danos. Moreover, Cortez
gave an extensive account of what he told Howard when he told
her that she was to get a warning notice; Cortez did not testify
that in that recitation he told Howard that the vice president had
ordered her discharge but he was letting her off with a warning
notice. If the vice president had told him to discharge Howard,
Cortez assuredly would have told Howard so, if for no other
reason than to impress upon Howard the seriousness of her
offense. And, if Cortez had told Howard that Danos had or-
dered her discharge, he would have so testified. I further do not
believe Pertuit’s testimony that, after Danos spoke to Howard
and George, he returned to his party and said nothing. If Danos
was angry enough to order the discharge of either Howard or
George, he would have said something. It is safe to infer, as I
do, that Danos told his party that he was ordering to happen
what, in fact, did happen, the warning of Howard and the dis-
charge of George. In sum, I believe that Cortez did exactly as
he was told; Danos told Cortez to issue a warning notice to
Howard and to discharge George. George was the employee
who was wearing the prounion insignia.137
If, after he had been told to discharge George, Cortez had re-
viewed George’s file and seen that there were sufficient
grounds to discharge her, he would simply have done it. In-
stead, he sent George back to work (as George testified), and
then he called Nunez. (That is, contrary to Cortez’ testimony,
he did not simply make a quick call to Nunez while George was
waiting outside the door of Barrios’ office.) Cortez’ testimony
that he called Nunez because he did not know if he could dis-
charge an employee when his own vice president was the wit-
ness was palpably incredible; of course, he could do what his
vice president told him. (Additionally, Cortez had to be led to
testify that Nunez told him, “Yes, it was within my rights to do
so.”) Obviously, Cortez knew that George could not be dis-
charged under any legitimate standard, and he called Personnel
Officer Nunez to express his concern; again, if he had not pos-
sessed strong reservations against discharging George, Cortez
would have done so as soon as he tallied the warning notices
that he had seen in George’s file, and Cortez would not have
bothered to bother Nunez about the matter.

137 In these findings, of course, I draw the strongest adverse infer-
ence against Respondent for its failure to call Danos, its vice president,
to testify.
As Cortez testified, it was in his telephone conference with
Nunez that the “stance” was developed that the 16-month-old
warning notice to George could be counted against her. This
“stance,” of course, was needed to defend the unfair labor prac-
tice allegations that would assuredly be filed because a known
prounion employee was being discharged and a nonunion em-
ployee who had engaged in the identical conduct was not being
discharged. The “stance,” as Nunez developed it, was that “be-
cause of the number of citations and the number of times that
this employee [George] has broke Company rules, and this
being the third time that she has created a—broke a rule such as
wasting time.” Again, a “stance” would presumably not be
needed if an employee was being discharged for legitimate
reasons. Nevertheless, this “stance” must be examined.
As Cortez admits, George was discharged, at least in part,
because her loafing of July 28 was the “third time.” It was the
“third time” only if her loafing of March 1992 was counted.
Cortez testified that, in making discipline decisions, he consid-
ers warning notices over 12 months old, “[w]hen a citation is so
close to the 12 months and the person was caught twice by the
same assistant vice president or vice president.” Specifically, he
testified that George’s 16-month-old warning notice for loafing
was “important” because the July 28 incident constituted: “the
second time that our vice president had caught this employee
apparently not doing the work assigned.” When asked on cross-
examination, Cortez could cite no other instance of a warning
notice’s having any effect beyond 12 months; and Respondent,
who offered proof of the existence of all other rules that it ad-
vanced in this proceeding, offered no other proof of a rule, or
practice, that would extend the effective life of a warning notice
beyond 12 months. No other supervisor in this long case testi-
fied that an employee could be penalized for an offense that
was over 12 months old. Finally, Respondent’s legal represen-
tatives are in the best position to articulate Respondent’s disci-
plinary policies. As mentioned in the introductory section of
this decision, in a letter to the Region dated October 15, 1993,
counsel states: “ASI’s policy [is] that three warning notices
within a 12-month period results in termination.” More specifi-
cally, in defending the charge filed on behalf of George, coun-
sel states in a second letter, dated February 4, 1994, that:

In conclusion, the decision to terminate Charging Party
[George] was made by Mr. Cortez solely on the basis that
Charging Party violated ASI’s [Respondent’s] policy by loaf-
ing, and because Charging Party had several other warnings in
her file, including a final warning notice.138 In accordance
with ASI policy, if an employee receives three warning no-
tices within a twelve-month period, the employee should be
terminated. [Emphasis added.]

In these letters to the Regional Office, counsel suggests no rule,
or reason, that a warning notice older than 12 months could be
held against any employee. In fact, the letters are the clearest of
expressions that Respondent would not do such a thing.
Each time he was asked about the reason for George’s dis-
charge, however, Cortez included reference to her March 1992

138 Counsel’s remarking about George’s “final” warning notice is not
part of the defense asserted at trial. George’s “final” warning notices
were for safety and absenteeism violations, and Cortez did not testify
that their expressed finality had anything to do with the discharge.
Also, as seen throughout this decision, many employees, including
George, received multiple “final” warning notices without being dis-
charged.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1160
offense. For example, Cortez testified that, when discharging
George, he told her that “she was being terminated for the fact
that she was also caught once before by Mr. Danos and myself .
. . . And I told her that she was being terminated at that time for
excessive citations and wasting time.” In arguing that Cortez
made the decision to discharge George, and in quoting Cortez’
testimony as a statement of the reason that he did so, Respon-
dent’s brief139 excises from this quotation Cortez’ phrase: “for
the fact that she was also caught once before by Mr. Danos and
myself . . . .” Of course, this phrase is critical; it reflects that
Cortez considered the 16-month-old incident to be indispensa-
ble in the decision to discharge George. The evidence is clear,
however, that Respondent considered warning notices over 12
months old to be “voided,” as Ms. Cortez testified. Therefore,
Respondent’s reliance on the 16-month-old disciplinary offense
of George is reliance on a pretext.140 A statement of defense
that indispensably relies on a pretext is not a statement of a
defense under Wright Line.
After he had orders from Danos, and a putative theory of jus-
tification from Nunez, Cortez sent Barrios to tell George that
she was discharged. Barrios then went and told George that she
was discharged for the “seven” warning notices that she had in
her file, as George further testified.141 Finally, as George also
testified, when she met Cortez in Barrios’ office for the second
time on July 28, Cortez told her that, “Whoever or whenever
you go to make a claim with the Union or whoever, don’t forget
to tell them that I didn’t fire you, the vice president did.” Again,
Cortez would not have made this statement to George if he had
not known that she was being discharged pursuant to a standard
that had not existed before. That is, Cortez knew the truth;
George was being discharged on a pretextual basis.
Appendices B and C further demonstrate that during the
1990–1994 period, some 91 other employees received six or
more warning notices within 12-month periods without being
discharged. This factor also compels the conclusion that George
was treated disparately in regard to the total number of warning
notices that she received within 12 months. Also, disparate
treatment of George is shown by the nondischarges of other
CDC employees who received three or more warning notices
for disciplinary violations of the same types within 12-month
periods; these employees were: (1) Burton, who received three
warning notices for wasting time, just as George was wasting
time,142 (2) Howard, who received three warning notices for the
offense of absenteeism, and (3) Davis, who received six warn-
ing notices, five of which were for the identical offense of ab-
senteeism.

139 Br. p. “CDC-CS-94.”
140 At one point in his testimony, Cortez compared his counting the
16-month-old warning notice against George to the situation where a
warranty benefit is extended in favor of a customer if an appliance
breaks just after its warranty expires. This is a false analogy. For
George, Cortez was not extending a period of grace; he was extending a
period of liability.
141 Strictly speaking, it was George’s seventh offense, not seventh
warning notice, that Respondent was using as a basis for the discharge.
Of course, one of those offenses had happened 16 months before.
142 Cortez testified that he did not discharge Burton for his third
warning notice for the same offense because there might have been a
“problem” between Burton and his supervisor. Such could be said
about virtually any disciplinary situation. The testimony was an admis-
sion that, if any three-of-a-kind rule actually existed, its enforcement
was inconsistent.
In view of all of this evidence of pretext and disparate treat-
ment, I find that Respondent has not come forward with evi-
dence that George would have been discharged even absent her
union activities, and I conclude that George was discharged in
violation of Section 8(a)(3).
I am further constrained to point out that, on brief, Respon-
dent does not state a Wright Line defense in its argument that:

As noted above, Mr. Cortez’ rule was that an employee would
be “blue-lined” for a particular offense on the second offense
of the same kind, and thus in consideration for termination on
the next offense of that kind; an employee would be blue-
lined regardless of the nature of the offense on the fourth or
fifth offense in 12 months, and thereupon in consideration for
termination for the next offense regardless of the nature of
that offense.143

Assuming that Cortez had so testified (which he did not), ab-
sent from this argument is any assertion that Cortez had a rule
that uniformly requires, or even usually requires, the discharge
of an employee when he commits his third similar offense
within a 12-month period (or in even greater than a 12-month
period). And, again assuming that Cortez had testified consis-
tently with the above-quoted lawyer’s argument on brief, there
is no representation that Cortez uniformly requires, or even
usually requires, the discharge of an employee when he com-
mits his sixth offense of any kind within 12 months. That is,
Respondent’s argument on brief is a statement of how employ-
ees could be discharged, but it is not a statement of a Wright
Line defense that employees similarly situated to George would
be discharged even absent their prounion sympathies. See
Structural Composite Industries, supra. Moreover, at most Cor-
tez testified that, if an employee commits another offense after
being blue-lined, “we have go to look at this folder closely
before we write them up any more.” Cortez did not testify that
employees are always, or even usually, discharged when they
commit one more offense after being blue-lined.
i. Dwight Ballard
Alleged discriminatee Dwight Ballard (vols. 14, 55, 56) was
a fourth-class mechanic who worked in the sheet metal depart-
ment until he was discharged on April 2, 1993. Pursuant to
unfair labor practice charges and a settlement agreement of
those charges,144 Ballard was reinstated on January 31, 1994.
On June 30, 1994, Ballard was again discharged. Lennie Valen-
tine (vols. 19, 20, 53, 54) is a fourth-class mechanic who, con-
tinuing through time of trial, also worked in the sheet metal
department. Valentine was discharged along with Ballard on
April 2, 1993, and he was reinstated along with Ballard, pursu-
ant to the same settlement agreement, on January 31, 1994.
Valentine was discharged again by Respondent on August 2,
1994, but he was immediately reinstated. Ballard’s and Valen-
tine’s 1993 discharges are not the subjects of the complaints
before the Board; Ballard’s and Valentine’s 1994 discharges
are. Also before the Board are allegations that, before their
1994 discharges, Respondent took several other unlawful ac-
tions against Ballard and Valentine.
(Editing note: All of the alleged 1994 discrimination against
Ballard is discussed here in Ballard’s case. Valentine’s 1994
discharge, and most of the other alleged 1994 discrimination

143 R. Br. p. “CDC-CS-80.”
144 The Tr., vol. 14, p. 2,495, L. 14, is corrected to change “attorney”
to “activity.”
AVONDALE INDUSTRIES

1161
against him, will be discussed below in his case; however, two
aspects of the alleged 1994 discrimination against Valentine
will be discussed here in Ballard’s case: On February 2, 1994,
Respondent allegedly harassed and admittedly suspended both
Ballard and Valentine. The admitted suspensions were ordered
by the same supervisor; because of this, and other reasons that
will become apparent, I shall discuss the harassment-
suspension element of Valentine’s case here in Ballard’s case.)
Respondent’s actions against Ballard are the subject of eight
8(a)(3) allegations of the complaints: (1) the second complaint,
at paragraphs 138, alleges that Ballard was harassed on Febru-
ary 2, 1994,145 by being required to submit to a tool-check (an
examination to see if an employee owns and possesses certain
hand tools); (2) the second complaint, at paragraph 137, alleges
that Ballard was suspended on February 2 when, after the tool-
check, he was found not to possess certain tools;146 (3) the sec-
ond complaint, at paragraph 147, alleges that Ballard was is-
sued a warning notice on April 26; (4–5) the fourth complaint,
at paragraphs 30 and 36, alleges that Ballard was issued warn-
ing notices on May 18 and June 6, respectively; (6–7) the
fourth complaint, at paragraph 40, alleges that Ballard was
issued two warning notices on June 28;147 and (8) the fourth
complaint, at paragraph 41, alleges that Ballard was unlawfully
discharged on June 30. The General Counsel contends that
these eight actions against Ballard were taken because of his
being reinstated pursuant to the settlement of the 1993 unfair
labor practice charges and his known union activities and ex-
pressions of sympathy that occurred after he was reinstated on
January 31; those activities include Ballard’s wearing of proun-
ion insignia and his posting of union handbills on two of Re-
spondent’s bulletin boards. The complaints further allege that
Ballard was threatened and “denigrated” because of his union
activities in violation of Section 8(a)(1). Finally, the complaints
further allege that, in 1993, in violation of Section 8(a)(1), su-
pervisors told other employees that Ballard and Valentine
would not be reinstated from their 1993 discharges because of
their union activities and sympathies.
Respondent denies that the reinstatement remarks to other
employees, the threat, or the “denigration” remark occurred.
Respondent further answers that: (1) On February 2, Ballard’s
and Valentine’s tools were checked just as any other em-
ployee’s tools would have been checked, and they were not
harassed; (2) Ballard and Valentine were suspended solely
because they did not possess all required personally owned
tools at the time of the tool-checks; (3) Ballard’s warning no-
tice of April 26 was issued solely because Ballard, in violation
of an established work rule, posted items on company bulletin
boards without permission; (4) Ballard’s May 18 warning no-
tice was issued solely because Ballard had been loafing; (5)
Ballard’s June 6 warning notice was issued solely because Bal-
lard was in a production area without wearing his safety glasses
in contravention to an established employee work rule; (6) Bal-

145 All dates mentioned in Ballard’s case are in 1994, unless other-
wise indicated.
146 The identical suspension allegation for Valentine is contained in
paragraph 136 of the second complaint. There is no separate allegation
of harassment-by-tool-check for Valentine, but there were no objec-
tions to the presentation of evidence on the issue, and the matter was
fully litigated.
147 Par. 40 is cast in the singular, but Ballard was issued two warn-
ings on June 28, and the lawfulness of both was litigated without objec-
tion.
lard’s first June 28 warning notice was issued solely because,
during working time, Ballard went outside Respondent’s gate
without permission, something that Ballard had done before;148
(7) Ballard’s second June 28 warning notice was issued solely
because, when supervisors approached Ballard with the June 28
warning notice for gate-exiting (as I shall call it), they found
him again in a production area not wearing his safety glasses;
and (8) Ballard was discharged solely because he had been
chronically violating Respondent’s work rules.
The General Counsel replies that: (1) Ballard’s and Valen-
tine’s tool checks were conducted pretextually because Re-
spondent’s supervisors were responsible for Ballard’s and Val-
entine’s not having their tools when they were reinstated from
their 1993 discharges; (2) Ballard’s and Valentine’s suspen-
sions were imposed disparately because, although there were
published requirements for tool-possession, other employees
who were found without required tools were not suspended
immediately for noncompliance; also, Ballard’s and Valentine’s
supervisors gave them a week to obtain the required tools, but
then, punitively, the supervisors required them to have the tools
immediately; (3) Ballard’s April 26 warning notice was issued
disparately because other employees placed notices on the bul-
letin boards without management’s approval, but those em-
ployees were not disciplined; (4) the defense for Ballard’s May
18 warning notice is pretextual because Ballard was not loafing
on that date; alternatively, the General Counsel contends that
Ballard was treated disparately because other employees, when
found loafing,
were no more than told to get to work, if that much; (5) the
defense for Ballard’s June 6 warning notice is pretextual be-
cause Ballard had only removed his safety glasses momentarily
to wipe perspiration from his face; alternatively, the General
Counsel contends that Ballard was treated disparately because
other employees, when found without safety glasses, were no
more than told to put them on, if that much; (6) the defense for
Ballard’s first June 28 warning notice is pretextual because
Ballard did not exit the gate without permission on that date;
(7) the defense for Ballard’s second June 28 warning notice is
pretextual because, again, Ballard had removed his safety
glasses only to wipe perspiration from his face; alternatively,
again, the General Counsel contends that Ballard was treated
disparately because other employees, when found without
safety glasses, were no more than told to put them on; (8) Bal-
lard’s discharge was discriminatory because it was premised, at
least in part, on violative warning notices.
Ultimately, I find and conclude that Ballard and Valentine
were not harassed by the tool-checks, but they were unlawfully
suspended for failure to have the tools. I further conclude that
Ballard’s June 28 warning notice for exiting the yard without
permission during working time was valid, but Respondent
violated Section 8(a)(3) by the issuances of the remainder of
the warning notices in issue. I further conclude that, because
Respondent partially premised Ballard’s discharge on the basis
of warning notices that it had issued in violation of Section
8(a)(3), that discharge was also a violation of Section 8(a)(3). I
further conclude that a 1-day suspension of Ballard that imme-
diately preceded the discharge was also violative of Section

148 As I find here, Ballard also left the yard without permission on
March 31, and he then received a warning notice that is not alleged to
be violative.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1162
8(a)(3), even though that suspension is not separately alleged as
a violation in the complaint.
1993 Allegations Pertaining to Ballard’s and
Valentine’s 1994 Cases
First 1993 allegation specific to Ballard and Valentine. Al-
leged discriminatee, and former welding department employee,
Keith Collins (vol. 5) testified that on May 17, 1993, while he
was on loan to the pipe department, he went to the office of
Sheet Metal Department Foreman Jesse Caston; there, accord-
ing to Collins:

Well, after work, I went to his [Caston’s] office, and
he was sitting in his office. And I would say, “Jessie, I
heard Lennie Valentine and Dwight Ballard was termi-
nated. What is the story on those two?”—because I know
those two had worked under his supervision.
And he say, “They was working in their work place,
and they had this Navy supervision working on the unit,
too, and they was talking about the Union, and they made
him [the Navy supervisor] nervous. And he [the Navy su-
pervisor] left off the job site and went told someone what
they [Ballard and Valentine] was talking about.”

Based on this testimony by Collins, paragraph 16 of the first
complaint alleges that Respondent, by Caston, “threatened its
employees with discharge by telling them that other employees
had been terminated by the Respondent because they aided or
supported the Union.”
Additionally, current employee Eric Evans, a shipfitter, testi-
fied (Vol 59) that on April 21, 1993, he saw Foreman Jesse
Caston in a working area and:

Caston was heading toward me, I was—I stopped him
and spoke to him. And then I asked him what happened to
Lennie Valentine; I hadn’t seen him in awhile. . . .
He said, “Nothing happened to Lennie Valentine, but I
had to fire him because he was for the Union and against
Avondale.”

There is no separate allegation of the complaint based on this
testimony by Evans.
Caston (vol. 106) testified that he did supervise Ballard and
Valentine in 1993 and, after they were discharged, two or three
employees did ask him about their discharges. Caston testified
that in each case he told the inquiring employees that Ballard
and Valentine had been discharged because they had intimi-
dated Navy personnel with racial slurs. Caston denied telling
any employee that Ballard and Valentine had been discharged
because they talked about the Union in the presence of Navy
personnel.
If Collins had wanted to lie and help his own case, he more
likely would have selected a supervisor in a line of authority
above him to attribute Caston’s alleged statement about Ballard
and Valentine. When Collins attributed the threat to Caston,
however, he attributed to a supervisor in another department,
and a low-level supervisor at that. I found Collins credible in
his testimony on the point. I further found to be credible the
testimony of current employee Evans, and this factor fortifies
my conclusion that Caston made the comment to alleged dis-
criminatee Collins. I conclude that, as alleged, Respondent, in
violation of Section 8(a)(1), by Caston, on or about May 17,
1993, threatened its employees by telling them that other em-
ployees had been discharged because of their union activities.
Second 1993 allegation specific to Ballard and Valentine.
Current employee Junius Duplantis (vol. 29) testified that about
2 weeks after the June 25, 1993 Board election, Foreman Joe
DeNicola conducted a safety meeting for his sheet metal de-
partment crew. According to Duplantis:

All I can recall was after the meeting was over some-
one had asked Joe DeNicola if Lennie [Valentine] and
Dwight [Ballard] had a chance of getting their jobs back.
And Joe told us, “No, those guys don’t stand a chance
of getting their jobs back. The Union is not going to come
into this yard and tell Avondale what to do; [Company
president] Bossier runs this yard.”

Based on this testimony by Duplantis, paragraph 61 of the sec-
ond complaint alleges that Respondent, by DeNicola: “(a) cre-
ated the impression among its employees that their union activi-
ties were under surveillance by the Respondent; (b) told its
employees that two union supporters had no chance to be rein-
stated; and (c) . . . informed its employees that it would be fu-
tile for them to select the Union as their bargaining representa-
tive . . . by telling employees that the Union was not going to
come into the yard and tell Respondent what to do.”
DeNicola (vol. 119) denied making any such statements to
Duplantis or any other employees. As he did when denying
other remarks attributed to him, DeNicola cited his instructions
from the TIPS card as a reason why he would not have made
the remarks. As noted in the discussions of the allegations of
paragraphs 43, 55, and 65 of the second complaint, DeNicola
testified that he learned from the TIPS instructions that he
should not intimidate himself. Again, I found Duplantis more
credible than DeNicola, and I do credit Duplantis’ testimony on
this issue.
Nothing in this credited testimony of Duplantis would lead a
reasonable employee to conclude that Respondent found out
about the prounion sympathies of Ballard and Valentine by
means of surveillance or other unlawful means, and I shall rec-
ommend dismissal of paragraph 61(a). Telling employees that
union adherents had no chance for reinstatement, and assigning
as a reason only the idea that the Union was not going to tell
Respondent what to do, however, is a statement that the em-
ployees would not be reinstated because of their prounion sym-
pathies, and the statement is violative of Section 8(a)(1). Fi-
nally, telling employees, without qualification, that the Union
will never be their collective-bargaining representative is an
unlawful expression of futility of the employees’ efforts to
secure collective bargaining, as alleged in paragraphs (b) and
(c). I therefore find and conclude that Respondent, in violation
of Section 8(a)(1), by DeNicola, in mid-July 1993, told em-
ployees that other employees would not be reinstated because
they were prounion, and DeNicola told employees that it would
be futile for them to select the Union as their collective-
bargaining representative.
The Prima Facie Cases of Unlawful Discrimination Against
Ballard and Valentine
It is undisputed that, from the time that they were reinstated
in 1994 until the times of their discharges, both Ballard and
Valentine wore union T-shirts, and they maintained several
prounion stickers on their hardhats. Given this element of un-
disputed employer knowledge of Ballard’s and Valentine’s
prounion sympathies, and the general animus against all em-
ployees who shared those sympathies as found in this decision,
AVONDALE INDUSTRIES

1163
and given the specific animus against Ballard’s prounion sym-
pathies as revealed by DeNicola’s threat to Duplantis and other
employees, and given Caston’s threat to Collins, regarding both
Ballard and Valentine, I find and conclude that the General
Counsel has presented prima facie cases of unlawfulness in
Respondent’s subsequently described 1994 acts against Ballard
and Valentine that are alleged herein to be violative of the Act.
(Further findings of specific animus against the prounion sym-
pathies of Ballard and Valentine will be discussed below.)
(1) Harassment and suspensions of Ballard and Valentine
Sheet metal mechanics are required to own and possess cer-
tain numbers and types of hand-tools, called “personal tools.”
Respondent issues “tool lists” that specify which tools are re-
quired. Gang boxes are large (about 60 cubic feet), heavy,
metal boxes that are owned by Respondent and found through-
out the yard. Once the gang boxes served other purposes, but
during 1993 and 1994 Respondent permitted the employees
who were required to own tools to use the gang boxes as outer-
boxes in which they could lock their personally owned tool-
boxes which, in turn, held their personal tools. Although the
term “gang” would seemingly imply use by several employees,
many times only one employee stored his tools in one gang
box. As the employees changed work stations, Respondent
would permit the use of power equipment to move their gang
boxes to newly assigned areas.
On Monday, January 31, 1994, their first day of reinstate-
ment from their 1993 discharges, Ballard and Valentine went
through personnel office procedures; they did no production
work. On February 1, Ballard and Valentine reported to the
office of Sheet Metal Department General Foreman Arthur
Schloegel. Schloegel assigned Valentine to work under Fore-
man Alan Kitzman, and he assigned Ballard to work under
Foreman Nathan Dubois. When they appeared for work on
February 1, Ballard and Valentine carried no personal tools.
Both testified that they had left their tools in gang boxes that
had been assigned to them when they were discharged in 1993.
They did not take the tools with them when they were dis-
charged in 1993, they testified, because security guards pre-
vented them from collecting the tools at the time. Ballard and
Valentine each testified that he expected his tools to be there
when he was reinstated. The tools are quite valuable; if the
guards had prevented Ballard and Valentine from securing their
tools when they were discharged, Ballard and Valentine assur-
edly would have contacted management about the matter (by
telephone if nothing else). Moreover, if Respondent had appro-
priated their tools in such fashion, Ballard and Valentine assur-
edly would have told the Regional Office about it, and re-
placement of the tools by Respondent would have been an issue
that would have been resolved in compliance before the settle-
ment agreement, which required reinstatement, was approved
by the Regional Director; either that would be the case or the
settlement agreement would have been set aside and the issue
of full reinstatement from the 1993 discharges would have been
litigated before me. That is, there is no reasonable basis for the
testimony that the employees believed that their personal tools
would be waiting for them in 1994, and I do not believe it.
In support of a theory that at least Valentine reasonably ex-
pected his tools to be there when he was reinstated, the General
Counsel called current employee Berthard Lotten (vol. 35) who
testified that, immediately after Valentine’s 1993 discharge,
Foreman Caston cut the lock on the gang box that Valentine
had been using. Lotten did not testify that he saw Caston take
the tools. Although I credit Lotten, the gang box was, neverthe-
less, Respondent’s property; Valentine necessarily knew that
the lock was going to be cut at some time after his 1993 dis-
charge (so that other employees could use the gang box), and
Valentine had no reasonable expectation that the tools would be
there when he returned to work if he had not collected them, for
whatever reason, when he was first discharged.
Harassment and Suspensions of Ballard and Valentine—
Valentine’s Testimony
Valentine (vols. 19, 20) testified that on February 1:

When I reported to Mr. Kitzman he asked me did I
have any tools, and I told him I didn’t have no tools with
me.
And he said, well, I would have to have them by the
7th, that Monday, of February, and I told him okay.

Valentine was assigned to do glueing work with mechanic
Raymond (T-Ray) Matherne; Matherne did not testify. Valen-
tine testified that the glueing work required the use only of
Respondent’s tools; he did not need any personal tools for the
job.
On February 2, Valentine and Matherne continued the glue-
ing work. After lunch, Valentine was paged to Kitzman’s of-
fice. According to Valentine:

Al Kitzman asked me did I have my tools and I replied
to him that: “You told me that I didn’t need my tools until
Monday.”
He said, “Well, I was told to send you home if you
didn’t have your tools.”
I said, “But you told me I didn’t need my tools until
Monday.” And I asked him, “Well, who is sending me
home?”
And he said, “Well, I am not going to tell you who is
sending you home, but I am told to send you home if you
don’t have your tools.”
He gave me a tool list and I went home to go to the
store to buy the tools that was on the list that I didn’t have.

On February 3, Valentine reported back to work. At 7 a.m.,
Kitzman checked Valentine’s personal tools against the tool
list, and he sent Valentine back to work with Matherne. Valen-
tine testified that, from the date of his suspension through the
date that he testified, he did not use the personal tools that he
bought during his suspension.
Valentine testified that he had undergone only one other tool
check during his 10-year employment with Respondent; that
was in 1992 when Caston checked the tools of Valentine and
four other employees (Ivory Johnson, Maurice Williams, Earl
Bennett, and Donald Lyons). All five of the employees had
some of the tools missing. None was sent home by Caston.
Caston told each employee that he had 30 days to come up with
the missing tools. Caston never did recheck to see if he had
purchased his missing tools, Valentine testified.
Harassment and Suspensions of Ballard and Valentine—
Ballard’s Testimony
According to Ballard, on February 1, when he reported to
Dubois:

[Dubois] asked me did I have all of my tools. And I told him,
“No, I do not have all of them.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1164
He said, “Well, I am going to give you until the fol-
lowing Monday [February 7] to have all your tools.”
And I said, “Okay.” And he assigned me to a job site.

Ballard testified that for the rest of the day he was assigned to
do taping work, work that did not require any of the tools on
the tool list for sheet metal mechanics.
According to Ballard, on February 2:

Approximately about 12:45, Mr. Dubois came up to
me, and he told me that [Sheet Metal Department Superin-
tendent] Mr. Allen Poleto had . . . asked him concerning
my tools, did I have all of my tools.
And he [Dubois] told him [Poleto] no, that he had told
me that on the following Monday, I could bring them all
in. And Mr. Poleto said for him [Dubois] to send me home
and not for me to return to work until I bring all my tools
in.

Ballard signed out; as he did so, Dubois gave him a copy of the
tool list for sheet metal mechanics. That day Ballard purchased
all of the tools that he did not have. Ballard testified that he
returned to work on February 3 with the tools. Dubois checked
Ballard’s tools at 7:30, and, upon being satisfied, Dubois gave
Ballard the day’s MCR and allowed him to write in his time
(“sign in”). Dubois sent Ballard back to doing taping work;
again, this was work that did not require use of any of the tools
on the tool list. Ballard further testified that he did not use any
of the tools on the tool list until late April.
The periods of the suspensions alleged for Valentine and
Ballard are for those of the afternoon of February 2 and, addi-
tionally in Ballard’s case, for one-half hour during the morning
of February 3, when Dubois conducted the tool-check and al-
lowed Ballard to sign in.
Harassment and Suspensions of Ballard and Valentine—
Respondent’s Evidence
Sheet Metal Department Superintendent Poleto (vol. 105)
testified that upon progressing from the rating of a helper to
that of fourth-class mechanic, employees are presented with a
list of tools that they must buy and possess at all times when
working. When one employee borrows tools from another, it
slows down work because of the time that is consumed in the
process. Foremen notice when workers are borrowing tools,
and they then conduct tool-checks of all mechanics to see who
is in compliance with the requirement that all tools on the list
be owned, as well as possessed. When asked what the foreman
should do if an employee does not have all the tools, Poleto
testified: “Well, if it was just a minimal amount, he would give
him to the following payday to retrieve them. But if it was nu-
merous where it affected his productivity, they could be sent
home.” (“Sending home” was a shop term used by the wit-
nesses to indicate suspensions.) General Foreman Arthur
Schloegel (who was absent the first week in February and who
was not involved in the suspensions of Ballard and Valentine)
and Foremen Dubois and Kitzman testified consistently with
Poleto on this point.
Poleto further testified that on February 2, he called Dubois
and Kitzman “to find out how the guys were doing.” Kitzman
and Dubois reported that Valentine and Ballard had appeared
without any tools, and the foremen were using them as helpers.
Poleto testified that he replied to each foreman (separately):

I said that we didn’t hire him back as a helper. He is a
fourth-class mechanic and if he didn’t have any of his
tools, send him home until he comes back with his tools,
because he was a fourth-class mechanic prior to leaving . .
. and not let him come back to work until he had his tools.

On cross-examination Poleto testified that he could not recall
whether Kitzman and Dubois had told him that they had given
Valentine and Ballard, respectively, until the following Monday
to obtain their tools. Further on cross-examination Poleto ex-
pressed confusion on whether he called Kitzman and Dubois or
they called him. He further contradicted himself about whether
he first asked Kitzman and Dubois if Valentine and Ballard had
their tools or the foremen volunteered the information that they
did not. Finally, on redirect examination, after a counsel-
requested break, Poleto testified that he did not first ask either
Dubois or Kitzman whether Ballard or Valentine had their
tools.
Kitzman (vols. 107, 115) testified that when Valentine re-
ported to him without any tools on February 1, he told Valen-
tine to have “a majority” of his tools the next day and all of
them by the following Monday, February 7. Kitzman testified
that he put Valentine to work as a helper to Matherne149 be-
cause Valentine did not have his tools, or even a majority of
them. The work that Valentine and Matherne were doing was
“screening,” which Kitzman called “very difficult, tedious”
work. Kitzman acknowledged, however, that the only personal
tool that was needed to do the screening was a 12-foot measur-
ing tape; Respondent furnished the other tools that were used in
the process. Kitzman testified that when Valentine again ap-
peared on February 2 with no tools, he again told Valentine that
he must have a majority of his tools on the next day and all of
them by February 7. Again, Kitzman placed Valentine with
Matherne, again as a helper, and again on the screening jobs.
Kitzman testified that after lunch on February 2, Poleto called
and:

[H]e asked how Lennie was doing, if I was having any prob-
lems with him. And I told him, no, I really wasn’t having any
problems with him, except I was using him as a helper. And
when he asked me why, I told him, “Well, he didn’t bring any
tools with him, so I am using him in a helper’s capacity.” . . . I
had told him [Poleto] that I told him [Valentine] the day pre-
viously to get a majority of his tools. . . .
He [Poleto] told me to give him [Valentine] a copy of
the tool list and send him home.

(Kitzman specifically denied that Poleto asked about Valen-
tine’s having, or not having, tools first.) On cross-examination,
Kitzman added that, when he was talking to Poleto on February
2, he told Poleto that he had told Valentine “to bring the major-
ity of the tools the following day to work, and all of his tools by
that following Monday.”
Further according to Kitzman, after the telephone call with
Poleto, he immediately went to where Valentine was working,
gave Valentine a tool list, and told him that Poleto had ordered
that Valentine be sent home. Valentine protested that Kitzman
had previously told him that he had until February 7 to have all
of his tools; Kitzman replied that he had also told Valentine to
have a majority of his tools the next time he reported to work;
the “next time” had been that morning, but Valentine had
(again) come to work without any personal tools. Valentine
then left. Kitzman acknowledged that, from the time that Val-

149 In Vol. 107 of the transcript, Ray (T-Ray) Matherne is referred to
as “T. Ray.”
AVONDALE INDUSTRIES

1165
entine returned to work on February 3, he has continued to do
screening work. Kitzman testified that Valentine quickly
showed that he could do the screening work better than Math-
erne, and, since Valentine returned from suspension, he has
assigned all such work to Valentine. Finally, Kitzman testified
on direct examination that all sheet metal department mechan-
ics are required to have all personal tools all of the time be-
cause assignments could change from day-to-day.
Friday, February 4, was a payday. On cross-examination,
Kitzman acknowledged that he gives employees who are miss-
ing tools until after an intervening payday to appear with a
complete set of personal tools, but he insisted that he does so
only when an employee has only a few tools missing; Kitzman
testified that he would not allow an employee an intervening
payday if he were missing all of his tools, as was Valentine.
Kitzman testified, however, that never before had an employee
presented himself for work with no tools at all. And Kitzman
further admitted that, until Poleto told him to do it, he had not
considered suspending Valentine for not having his tools (or a
majority of them) on February 1 or 2.
Whether Kitzman told Valentine on February 1 to have “a
majority” of his tools by February 2 is a matter in dispute. Fur-
ther on cross-examination Kitzman was asked if he required the
employees to possess one more than half the tools on the tool
list. Kitzman testified:

THE WITNESS: I wouldn’t say one more than half. It
would depend on the job that the mechanic was doing. If
the mechanic was installing spiral duct, and he had tools
sufficient enough to do that job [but not the] other tools
that are on the tool list that aren’t required to do that job, I
wouldn’t send him home for that reason because he didn’t
have those tools, but I would tell him that he would have
to have all his tools together by that following Monday. It
depended on the—it depends on the situation: what type of
duct he is installing.

Kitzman acknowledged, however, that, had Valentine been
missing only the 12-foot measuring tape, he would not have
suspended him.
Kitzman was further asked and he testified:

Q. [By Mr. Morgan]: What is the difference between
the work he [Valentine] was doing on February 1 and 2nd
and the work he was doing on February 3?
A. On February 1 and 2nd, he was working in a
helper’s capacity. He was helping another mechanic install
the screen. And, like I said, Lennie—the first couple of
days he showed that he was going to be good at this job,
and I let Lennie do it by himself on the third day.
And so instead of helping him—another mechanic—
assisted him, holding the screen, tacking it here and tack-
ing it there—Lennie was doing it by himself.
Q. [By Mr. Morgan]: The change that you described
from February 2 to February 3 had nothing to do with
tools, did it, Mr. Kitzman?
A. It had nothing to do with tools.

On direct examination, Dubois (vol. 116) testified that, if
sheet metal mechanics are found without any tools, they are
given until the next day to purchase them. Dubois testified that
when Ballard reported to him on February 1 without any tools,
Ballard told him that he had some tools in his automobile but
they were covered with grease and could not be used. Dubois
told Ballard to bring in the next day whatever tools he had and
that he had a week to get all of his tools; he gave Ballard a tool
list. Dubois put Ballard on a unit with another mechanic who
provided tools that Ballard would use in addition to those that
Respondent provided. Ballard left work that day at noon (with
permission). On February 2, Ballard reappeared without any
tools; Dubois asked Ballard where the tools were that he had
said were in his automobile; Ballard replied that he actually had
not had any tools in his trunk; Dubois put Ballard back to doing
the same work that he had been doing the day before, assisting
another mechanic from whom Ballard borrowed the tools that
Respondent did not furnish. After lunch that day, Dubois testi-
fied, he “heard” that Kitzman had sent Valentine home, “so I
called my superintendent, which is Allen Poleto, and I told him
that Ballard never had any tools neither.” At that, Dubois testi-
fied, Poleto told him to send Ballard home. Dubois went to
Ballard and told Ballard that “my boss” had said to send him
home because he had no personal tools. Without saying any-
thing, Dubois testified, Ballard left the unit and punched out.
On February 3, Ballard returned to work with a new toolbox
and a new set of tools. (Dubois asked Ballard why he had new
tools, and Ballard told him that the Union had bought them for
him.) On that day, and thereafter, Dubois assigned Ballard to
work that required several of the personal tools on the tool list,
and Dubois described that work in detail. Dubois denied that
Ballard continued to do the same work that he had done on the
first two days. On cross-examination, Dubois flatly denied that
Poleto called him and asked how Ballard was doing.
Harassment and Suspensions of Ballard and
Valentine—Conclusions
It is clear that Respondent requires its sheet metal depart-
ment mechanics to have a complement of personally owned
tools. There is therefore no element of “harassment” involved
in Dubois’ and Kitzman’s asking Ballard and Valentine, respec-
tively, where their tools were. I shall therefore recommend
dismissal of the allegations of the complaint that, by the tool-
checks, Ballard and Valentine were harassed. The actions that
Respondent’s supervisors took after the lawful tool-checks,
however, raise different considerations.
It is undisputed that Dubois and Kitzman initially gave Bal-
lard and Valentine, respectively, until February 7 to secure all
of the personal tools on the department’s tool list for sheet
metal mechanics. This factor, alone, belies certain testimony by
the supervisors that all sheet metal department mechanics must
have all tools at all times. At least it shows the formalistic,
rather than substantive, nature of the requirement that the sheet
metal mechanics own and possess all personal tools at all times.
The formalistic, rather than substantive, nature of Poleto’s de-
mand that Valentine secure all tools before doing any other
work is further demonstrated by the fact that the change in Val-
entine’s work after February 2, in Kitzman’s words, “had noth-
ing to do with tools.”
Kitzman also added that on February 1 he gave Valentine
only until the next day to come up with a “majority” of the
tools on the list. This portion of Kitzman’s testimony was in-
credible. If there had been any truth in it, Kitzman would not
have put Valentine to work on February 2, when, again, Valen-
tine showed up without tools. Kitzman further retreated from
his testimony by stating that by “majority” he meant only the
most important tools. Then Kitzman reversed himself on that
by acknowledging that, had Valentine been missing only the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1166
12-foot measuring tape on February 2, the only personal tool
that he used on the screening job, he nevertheless would not
have sent Valentine home. Finally on this point, on February 1,
Dubois placed no “majority” requirement on Ballard; he told
Ballard just to bring what tools that he had. (Then, when Bal-
lard turned up with nothing on February 2, he was still put to
work.) I discredit Kitzman’s testimony that on February 1 he
told Valentine to come back to work the next day with a “ma-
jority” of his tools.
Poleto testified that on February 2 he called Kitzman to see
how Valentine “was doing,” and he called Dubois to see how
Ballard “was doing.” Of course, Poleto and Dubois squarely
conflict on whether Poleto called them and asked how Ballard
“was doing,” and Poleto vacillated on whether he called the
foremen or they called him. The resolution of these conflicts
lies in Kitzman’s testimony: Kitzman credibly testified that
Poleto did call him and asked how Valentine was doing; Kitz-
man told Poleto that it was not causing any “problems,” but
Valentine did not have his tools. Poleto, even though he was
told that it was not causing problems, told Kitzman to suspend
Valentine until he secured all of his personal tools. When he
hung up the telephone after talking to Kitzman about Valentine,
Poleto, obviously sensing that Ballard might be vulnerable to
the same putative cause for adverse action, called Dubois to
find out if Ballard had all of his tools. These are my findings; I
discredit all testimony to the contrary.
It was not by coincidence that the two foremen, Dubois and
Kitzman, gave Ballard and Valentine the same period of time to
remedy the same problem; to secure their personal tools, the
supervisors gave the employees until Monday, February 7,
which was the Monday following the next (Friday) payday.
Such consistency of treatment is reflective of an established
practice, the testimony of the supervisors to the contrary not
withstanding. That practice was to allow employees at least one
intervening payday to come up with missing tools, whether it
was few or many tools that the employee did not have. (This
point is amply demonstrated in the case of alleged discrimina-
tee Ronald Johnson, infra, who was given many chances to
come up with many missing tools.) The forbearance afforded
would, of course, cause some diminution in productivity, but it
was something that Respondent’s supervisors had theretofore
allowed, and which they had initially afforded to Valentine and
Ballard. The forbearance afforded by Kitzman had not caused
any “problem” in Valentine’s case; in fact, it showed Kitzman a
better way to get the “very difficult, tedious” screening done.
That is, in Valentine’s case, the missing tools were not, to use
Poleto’s words, “numerous where it affected his productivity.”
(And when Kitzman told Poleto that he had given Valentine a
week to come up with all of the tools, Poleto did not tell Kitz-
man that he should not have done so.) Dubois credibly testified
that he would have had Ballard doing other things if Ballard
had had his tools, but it was still something that he could live
with, at least until after the next payday.
Kitzman admitted that he knew that Valentine had gotten re-
instated through an NLRB settlement agreement; although he
denied it, Poleto, Kitzman’s superintendent, assuredly knew the
same. The above-quoted testimonies of Duplantis and Collins
demonstrate animus that would engender resentment against
Respondent’s employees who had been reinstated after filing
unfair labor practice charges. I find that resentment against the
settlement agreement was the proximate reason that Poleto
disregarded past practices, overruled his foremen, and ordered
the immediate suspensions of Ballard and Valentine. That is,
Respondent has not demonstrated that, absent their protected
activities, Ballard and Valentine would have been suspended on
February 2. I therefore conclude that by those suspensions Re-
spondent violated Section 8(a)(3) of the Act.
(2) Ballard’s first warning notice for exiting gate without per-
mission (not alleged)
(As noted above, on March 31 Ballard was issued a warning
notice for exiting a gate during working time without permis-
sion. This warning notice is not alleged as a violation, but it is
an important part of the defense because part of the reason for
Ballard’s discharge was that he committed the same offense on
June 28; therefore, some credibility resolutions about the event
of March 31 are necessary.)
In March, Ballard was assigned to the crew of Sheet Metal
Department Foreman Archie Frickey. On March 31 Frickey
was absent, and Caston supervised Frickey’s crew as well as his
own. On April 2, Frickey returned to work and issued to Bal-
lard a warning notice dated March 31. The notice had been
signed by Caston who had entered as the date and time of of-
fense, “Thursday, 3/31/94 at 2:20 p.m.” Caston had checked
General Offense-4, and stated as the reason for the warning:
“Leaving the working place without permission. Employee was
observed coming from Personnel at 2:20 p.m. by his foreman.”
It is undisputed that for an employee to leave the yard during
working time he should have the permission of his supervisor
expressed in the form of a pass for that purpose, a “blue pass”
as the witnesses called it.
The details of the March 31 incident will not be fully devel-
oped here. It suffices to say that, over denials by Ballard, I
credit Respondent’s witnesses, and I find as follows: During the
day, while he was in Caston’s office, Ballard called the human
resources department office about some insurance forms that he
needed. Caston was present during this telephone call, and he
heard Ballard’s side of the conversation. At 2:05 p.m., at a time
that Ballard should have been working, and without the permis-
sion of Caston or any other supervisor, Ballard exited the yard
through gate 22, passing plant guard Patricia Winfield (vol.
151) and ignoring her requests that he show her a blue pass or
tell her his badge number. (Winfield, however, could identify
Ballard through a previous encounter.) Winfield saw Ballard
walk toward the human resources department office, which is
just outside gate 22. Ballard returned through the gate at 2:25,
again ignoring Winfield’s request for a blue pass and his badge
number. Before he could reach his work area, Ballard was con-
fronted by Caston. Ballard offered an explanation for his con-
duct, but Caston rejected the explanation as false (as do I). Cas-
ton told Ballard to go back to work, and Caston contacted Gen-
eral Foreman Schloegel. Schloegel and Caston conferred with
Winfield and found that Ballard had gone out through the gate
and walked toward the human resources department at the
times indicated above. Caston then completed and signed the
above-quoted warning notice and left for vacation. As Ballard’s
pretrial affidavit admits, while Caston was still on vacation
Frickey presented the above-quoted warning notice to Ballard.
As the affidavit further admits, Ballard read the warning notice
when it was presented to him by Frickey. (I point out this last
fact because Ballard falsely testified that he had not read the
warning notice. By this lie, Ballard was apparently hoping to
premise an argument that, before he was issued a warning no-
tice for exiting the gate on June 28, he had never been warned
AVONDALE INDUSTRIES

1167
against such conduct. As will be seen, Ballard was consistently
incredible when testifying about his own conduct.)
(3) Ballard’s warning notice for unauthorized postings
on bulletin boards
In mid-April Ballard was assigned to Caston’s crew. On
April 26, the Union distributed handbills that encouraged adop-
tion of certain resolutions for changes to Respondent’s ESOP
plan to be voted on at the aforementioned May 6 shareholders’
meeting. Respondent issued literature in opposition to those
resolutions. Ballard testified that as he arrived at Respondent’s
gate on the morning of April 26, he received several of the
union handbills. Ballard testified that he then went to Caston’s
office to sign in; after doing so, he took some tape from Cas-
ton’s desk and taped one of the handbills on the wall outside
Caston’s office in a space where other notices are sometimes
posted (the bulletin board). Ballard testified that at the time that
he posted the handbill, there were on the bulletin board “other
leaflets with garage sales, boat sales, house sales, go-cart sales
and suppers—benefits suppers.” Ballard testified that he also
posted a copy of the handbill on another bulletin board in the
area; that bulletin Board, Ballard acknowledged, previously had
nothing on it.
Later in the day, Ballard was called to the office of Samuel
Capaci, Respondent’s assistant director of security. Capaci
presented Ballard with the following warning notice:

Employee is being warned on General offense #11 on
page # 14 in Employee’s Guide Book: “Posting or remov-
ing of any material on bulletin boards located on Company
property or on any structure controlled by the Company
without prior approval.” As per Security Department in-
vestigation.

The warning notice was signed by Capaci and Schloegel.
Ballard testified that he returned to the bulletin board on
April 27 and noted that the handbills for sales and the benefit
supper were still posted.
On cross-examination, Electrical Department Foreman Del-
ling Thibodeaux (vol. 130) testified that notices to employees
are usually posted at a tool room. Annually, from October
through December, Respondent posts United Way flyers at the
tool room. Also, Thibodeaux testified that sometimes when
electrical department employees are retiring, other employees
post notices soliciting contributions toward gifts for the occa-
sions.
Ballard’s Warning Notice for Unauthorized Postings—
Respondent’s Evidence
Caston (vols. 106, 107) testified that on April 26, Ballard
showed him a union handbill, grabbed a roll of tape off his
desk, walked outside, and then came back in to the office and
put the tape back on Caston’s desk. Caston asked Ballard what
he had done; Ballard replied that he had placed the handbill on
the outside wall of the office; Caston stepped outside and im-
mediately tore it down. Ballard told Caston not to “worry” be-
cause he had posted several others throughout the yard. Caston
called General Foreman Schloegel. Later in the morning, Cas-
ton was ordered to go to Capaci’s office where he gave a state-
ment about the event.
On direct examination, Caston was first asked about Bal-
lard’s handbill and he testified:

Q. Were there any other documents posted on the wall
outside of your office at that time, on your area outside the
wall of your office?
A. I don’t recall.

Then Caston was asked what sort of things should be posted
outside his office; Caston replied that only company memo-
randa should be posted there. Caston was then asked and he
testified:

Q. Was there any—on the day that you took that
document down, was there any document on that wall next
to the door of your office—the wall right next to the door
of your office where—that had anything to do with sales
or advertising or anything like that?
A. No.

On cross-examination, Caston testified that on April 27 Bal-
lard brought to him copies of three handbills; one was advertis-
ing a benefit dinner for an employee; one advertised the sale of
a boat; and the third was for the sale of a go-cart. (Ballard had
not testified to having done this.) Referring to the handbills,
Caston acknowledged that “I could have possibly seen them
posted” at the plant premises, although not around his office.
When asked if it were not frequently that he saw such “per-
sonal” postings, Caston replied, “I have seen them posted, you
know, from time to time.” When specifically shown the go-cart
advertisement, Caston was asked and he testified:

Q. You had seen something like that posted?
A. I would say it is this one here. I can’t guarantee it
would be no 100 percent, 1,000 percent sure on it . . . .

Finally on the point, Caston was asked and he testified:

Q. [By Mr. Morgan]: At the time Mr. Ballard brought
you these posters or fliers that you just described, there
were other posters or fliers of a personal nature posted
around the Avondale yard. Isn’t that true?
A. I would imagine so.

On redirect examination, Caston denied seeing the go-cart ad-
vertisement posted at the plant premises.
Ballard’s Warning Notice for Unauthorized
Postings—Conclusions
I credit Ballard’s testimony that when he posted the union
handbill outside Caston’s office there were also posted per-
sonal, for sale, handbills. Company Assistant Security Chief
Capaci investigated the matter personally, but, although he was
called to testify by Respondent, he was not asked what he
found when (and if) he inspected the bulletin board in question.
When Caston was asked about other postings, he first claimed
loss of memory; then, after being brought back to the supposed
sole purpose of the bulletin board, Caston claimed that there
were no personal flyers on the bulletin board. Also, although he
first testified that he “would imagine” personal postings such as
the go-cart advertisement existed at the plant, Caston changed
that testimony on redirect examination. When he slipped and
acknowledged that one of the sample personal handbills (the
go-cart handbill) had been posted at the plant, Caston tried an
evasive back-track and stated that he could not be 100 or
“1000” percent sure. Caston was most unimpressive in these
exercises. Moreover, even if there were no such personal hand-
bills posted outside Caston’s office on April 26, Caston admit-
ted that he “would imagine” that other such handbills were
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1168
posted in the yard at the time. This was an admission, as was
Caston’s testimony that he had seen posted in the yard at least
two of the handbills that Ballard brought to him on April 27.
Finally, Thibodeaux admitted that postings for solicitations of
gifts are permitted in the electrical department, and, at least in
the electrical department, there are annual postings of United
Way flyers.
Respondent argues that electrical department posting policies
are not relevant to what happened in the sheet metal depart-
ment. Apparently, however, union-related postings are the sub-
ject of some over-all company policy-otherwise Company As-
sistant Security Chief Capaci would not have been called in to
investigate the matter and to issue the warning notice himself.
Even accepting the Respondent’s argument, however, Caston
admitted seeing personal, for-sale, flyers posted in the yard.
Finally, I have credited Ballard’s testimony and found that such
were posted in one of the spaces where Ballard posted the un-
ion handbill.
Allowing personal notices, and even United Way notices, to
be posted, while prohibiting and punishing the posting of un-
ion-related postings,150 is discrimination that would tend to
discourage union or protected concerted activities. That is, I
find that Respondent has not demonstrated that it would have
issued the April 26 warning notice to Ballard even in the ab-
sence of his protected activities. I therefore conclude that Re-
spondent violated Section 8(a)(3) of the Act by the issuance of
that warning notice.
(4) Alleged threat to Ballard by Simpson
On May 17, as Ballard was standing in a roadway waiting
for a power-vehicle to bring him his gang box, Production Vice
President Michael Simpson, whom Ballard had never met be-
fore, drove by. Simpson stopped and asked Ballard his name;
Ballard told Simpson and, then, according to Ballard:

Then he said, “Oh, you are the famous Dwight Bal-
lard.”
I say, “Yes, I am the famous Dwight Ballard.”
He said, “Who do you work for?”
I told him I worked for Jessie Caston.
He said, “Oh, are you still working for Jessie? I
thought Jessie would been to fire you by now.”
I said, “He trying to; all you all are trying to, but you
all won’t succeed at it.”
Then he looked at me, and he got back in his truck and
got on his phone, and he drove off.

Based on this testimony by Ballard, paragraph 15 of the fourth
complaint alleges that Respondent, by Simpson, “threatened its
employees with discharge because they aided or assisted the
Union.”
Simpson testified that on May 17 he saw Ballard standing in
the road, apparently doing nothing. According to Simpson (vol.
139):

I asked him what his name was, and he said, “Dwight
Ballard.”

150 Respondent argues that the postings were not protected concerted
activity because they related only to a vote on the Union’s ESOP pro-
posals. Of course, postings about go-cart sales, and the like, are also not
protected concerted activities. The issue, however, is disparate en-
forcement of Respondent’s no-posting rule, not the protected nature of
the content of the postings.
It surprised me. I said, “Oh, you are the famous Mr.
Ballard.”
And he said, “Yes, I am.”
I asked him where his foreman was, and he said, “I
don’t know.”
I asked him who is foreman was, and he said, “Jessie
Caston.”
And I said, “I thought Jessie had gotten rid of you.”
And Ballard said, “He did, but I came back.”
I asked him, “Isn’t there something you can be doing
here instead of just standing?”
And he said, “Yes, but I am waiting for my gang box.”

As one can see, there are no substantive differences in the two
versions of the encounter between Simpson and Ballard. (The
term “gotten rid of,” as quoted by Simpson, and the word
“fired,” as quoted by Ballard, are essentially synonymous
terms.) To the extent that they differ, however, I credit Simp-
son. At trial, Simpson gave explanations for his questions to
Ballard, but, of course, the issue under Section 8(a)(1) is what
impact the statements made by Simpson would have had on a
reasonable employee. (Also, Simpson’s explanations for his
statements to Ballard were not credible.)
Telling an employee who has recently been reinstated pursu-
ant a settlement of unfair labor practice charges that he is “fa-
mous” is telling him that he has brought attention to himself. If
the management staff of the employer is bitterly hostile to the
exercise of Section 7 rights by the employees, telling an em-
ployee that he is “famous” is telling him that he is infamous. A
hostile employer’s telling a recently Board-reinstated employee
that he is infamous is telling him that he is a marked man,
scheduled for adverse action. Such is the case here. If there
could have been any doubt about the probable impact of his
statement, Simpson removed it by telling Ballard that he was
surprised that Caston had not already “gotten rid” of Ballard. I
find that there was a probable coercive impact in Simpson’s
statements to Ballard, and that impact is only magnified by the
fact that Simpson is the highest-level production manager, next
to Company President Bossier. I conclude that, in violation of
Section 8(a)(1), Respondent, by Simpson, on May 17, 1994,
threatened an employee with discharge or other unspecified
reprisals because he had engaged in union or other protected
concerted activities.
(5) Ballard’s warning notice for loafing
Ballard testified that on Wednesday, May 18, he was called
to Caston’s office. Caston presented Ballard with a warning
notice that was dated May 12. Typed in the space for date and
time of offense time was: “5/11/94, Wednesday, at approx. 2:30
p.m.” The box for General Offense-4 of the Avondale Employ-
ees’ Guide was checked, and the reason for the warning was
stated as:

Wasting time, loitering or leaving the working place
without permission. Employee was observed sitting on
material box next to water cooler out of work area by 2
Avondale Foremen, [badge number] W-33 Johnny Rome
(Elect. Dept.) & Bobby Ramirez, [badge number] W-561
(Welding Dept.) at approx 2:30 p.m. Employee was ver-
bally warned by his foreman Jessie Caston on [April] 25
about sitting on the job. He states that he was sitting in the
shade to get out of the sun.

AVONDALE INDUSTRIES

1169
On direct examination, Ballard was not asked what was said
between him and Caston on May 18 when Caston presented
this warning notice to him, but he did testify about the event
that was the subject of the warning notice.
Ballard testified that May 11 was a day that he wore his un-
ion T-shirt to work; he also then had four “Union-Yes” stickers
on his hardhat. Ballard acknowledged that on May 11 he left
his work area to get water. He testified that he did so because it
was a hot day, and he had been working in the sun. He stood in
line at the water cooler, got a drink, got back in line for another
drink, and then “stood in the shade for about two or three min-
utes” before going back to work. During this time, Ballard testi-
fied, he saw Foremen Rome and Ramirez in the area, but nei-
ther spoke to him. Ballard denied that, at any time, he was sit-
ting, and he denied that there was a “material box” (or gang
box) in the area upon which he could have sat. Ballard denied
that Caston had previously warned him about sitting when he
should be working. Finally, Ballard testified on direct examina-
tion that May 18 (when Caston presented him with the warning
notice) was the first time that any supervisor told him that he
was to be disciplined for his conduct of May 11. (As will be
seen, Caston testified that he spoke to Ballard about the matter
on May 12.) On cross-examination, Ballard admitted that, on
May 18, he told Caston that he had a “don’t give a damn atti-
tude” and should be able to spend time sitting, just as supervi-
sors do in their offices. (As will be see, however, Caston testi-
fied that Ballard made these remarks on May 12 as well as May
18.)
Ballard’s Warning Notice for Loafing—
Respondent’s Evidence
It is undisputed that when the employees feel overheated
they are free to walk to the nearest water cooler and get a drink;
of course, they are supposed to return to work as soon as they
do.
Caston testified that he had, in fact, found Ballard sitting,
loafing, on April 25, as he stated in the above-quoted warning
notice. When he then asked Ballard what he was doing, Ballard
told him that he was “getting out of the sun.” Caston told Bal-
lard that such would not be tolerated, and he told Ballard that
the next time that it happened Ballard “would be written up.”
Caston testified that he caused an internal memorandum to be
created about that incident, and that testimony was not ques-
tioned by the General Counsel (who had subpoenaed all such
memoranda). I found to be credible Caston’s testimony about
Ballard’s April 25 loafing and his oral warning to Ballard on
that date. I discredit Ballard’s testimony that he had not re-
ceived a prior oral warning about sitting when he went to get
water.
One element of the General Counsel’s contention that the
May 18 warning notice was issued to Ballard in violation of
Section 8(a)(3) is that pretext is shown by the delay between
the events of May 11 and the May 18 issuance of the warning
notice; therefore, Caston’s explanations for that delay must be
examined. The first question to be resolved is when Caston got
his information about Ballard’s May 11 conduct. Caston testi-
fied that Rome and Ramirez reported Ballard’s May 11 conduct
to him during the morning of Thursday, May 12, and they did
so separately, first Rome “on the morning of 5/12” then Rami-
rez “shortly after that, about mid-morning.” Caston testified
that both Rome and Ramirez reported to him that, about 2:30
on May 11, they had seen Ballard “sitting down on the material
box next to a water cooler right outside.” Caston first testified
that Rome named Ballard, but he immediately changed that
testimony to state that Rome had indicated only that the indi-
vidual loafing was “one of my guys.” Then, on cross-
examination, Caston changed his testimony again to state that
Rome named Ballard by name. Caston was consistent that Ra-
mirez did not indicate Ballard by name.
Further on direct examination, Caston testified that he told
Rome and Ramirez (again, separately, and again, during the
morning of May 12) that he would look into the matter. Caston
then went to Ballard’s work area that morning of May 12 and
told Ballard to come to his office. In the office, further accord-
ing to Caston, Ballard admitted that he had been sitting down
near the water cooler and that he knew that he had been seen by
Rome and Ramirez. Caston told Ballard that he would be re-
ceiving a warning notice. Caston testified that it was then that
Ballard said that he had a “don’t give a damn” attitude and
should be allowed to sit just as supervisors sit in their offices.
Caston further testified that on May 12, after he told Ballard
that he was going to be receiving a warning notice:

I then told Dwight he could go back to work and I then
called the clerk. Told her that I would need a written warn-
ing notice typed up. But I didn’t have the other foremen’s
badge numbers and their—the proper spelling of their
names. So I told her I would get that information for her as
soon as possible. . . . [S]o during the course of the day, I
got in touch with Johnny Rome, got his name, full name
and badge number; and Bobby Ramirez and his badge
number.

Caston further testified on direct examination that the warning
notice was not given to Ballard on May 12 because:

It hadn’t been typed up yet because, like I said earlier,
I hadn’t got the information till later on that day. And my
clerk—you know, once I gave her the information, the
only thing I could do then was wait for her to get the—
send the write-up to me.

Caston further testified that presentation of the notice to Ballard
was further delayed because Ballard took a vacation day on
Friday, May 13, and he (Caston) took vacation days on Monday
and Tuesday, May 16 and 17. Respondent introduced MCRs
reflecting those vacation dates for Ballard and Caston, and that
part of Caston’s testimony is not disputed.
Caston testified that when he gave the warning notice to Bal-
lard on May 18 Ballard again stated that he had a “don’t give a
damn” attitude and that he should be able to sit on the job be-
cause supervisors did so. Caston denied that, either on May 12
or 18, Ballard told him that he had been sitting near the water
cooler on May 11 because he was overheated. Caston further
testified that employees may sit down when they are over-
heated, but, if that happens, he will call an ambulance to get the
employee to the medical department.
On cross-examination, Caston again testified that Ramirez
and Rome reported Ballard’s May 11 conduct to him on the
morning of May 12. When asked if he knew why they had not
reported the incident on the afternoon of May 11, when it hap-
pened, Caston testified, “Chances are they didn’t see me.”
Ramirez (vol. 134) testified that on an afternoon in May,
about 2:30, he went to the water fountain near Caston’s office
where he saw an employee whom he knew to be on Caston’s
crew, but he did not know the employee’s name. The employee
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1170
was sitting on a gang box, with nothing in his hands, doing
nothing. After 5 minutes of that, Ramirez started walking to-
ward Caston’s office and Rome walked up to Ramirez. Ramirez
and Rome continued to watch the employee for about three
minutes more. Ramirez testified that he could not recall if the
employee was drinking anything, but he flatly denied that the
employee went to the water cooler while he and Rome watched
him. Ramirez testified that the employee who had been seen
sitting on the gang box was not sweating and did not appear to
be overheated. Ramirez further testified that he and the em-
ployee exchanged looks, but neither he nor Rome said anything
to the employee. After Rome and Ramirez watched Ballard for
about 3 minutes, further according to Ramirez, Ramirez told
Rome, “I am going to go talk to his boss [meaning Caston].”
Ramirez further testified that he then went directly to Caston’s
office, which was a 2-minute walk away. When he got to Cas-
ton’s office, he told Caston, “[W]e have got a man sitting on a
box over there. . . . You need to go check with him.” Caston
replied, “I am going to take care of it.” Ramirez testified that he
then “walked on.”
On cross-examination, Ramirez testified that, when he re-
ported the incident to Caston (again, that afternoon, between
2:30 and 3:00), he told Caston, “I don’t know his name; he is
sitting on a box. He is out there right now; go see him.” When
asked why he said nothing to the employee (like “get to work”),
Ramirez replied that the employee’s foreman was then in the
immediate area, and it was his foreman’s job to do something
about it.
Rome (vol. 137) testified that the employee whom he and
Ramirez observed on May 11 had a soda in his hand as he was
sitting on the gang box; otherwise, his testimony was consistent
with Ramirez’s. Rome testified that he never knew the name of
the employee. Rome also testified that it was Ramirez who
went to see Caston, and not he. On cross-examination, Rome
testified that later that same afternoon he met Caston, and Cas-
ton then thanked him for helping to cause the matter to be
brought to his attention; Caston then told Rome that he in-
tended to talk to the employee, but he did not say that he in-
tended to issue a warning notice to the employee. Rome placed
this meeting with Caston at “[a]bout three o’clock” of the same
day that he and Ramirez had seen the employee loafing.
Ballard’s Warning Notice for Loafing—Conclusions
The employees are allowed to take up to a 10-minute break
during the afternoons, and during those breaks they can go to
the soda machines and drink the sodas there or bring them back
to their work areas. Ballard, however, made no pretense of
being on such a break. He testified that he was hot, went to get
some water (and water only) and stood in the shade a while. He
did not claim to be on his afternoon break. Ballard denied sit-
ting down for 8 minutes near the water cooler on May 11; he
denied sitting down at all.
When his other warning notices were presented, Ballard
strongly protested the accuracy of their allegations, but he did
not protest to Caston that the May 18 warning notice was inac-
curate. Instead, as shown by his cross-examination (and as tac-
itly admitted by the General Counsel’s failure to conduct direct
examination on the point), Ballard protested not being able to
sit in the same manner that supervisors are permitted to sit. At
the same time he acknowledged an attitude (“don’t give a
damn”) that is consistent with sitting, and doing nothing, when
he should have been working.
Although Ramirez was shown to have lied under oath at an-
other point in the hearing,151 his testimony was fully corrobo-
rated by the testimony of Rome, who was fully credible. I credit
their testimonies that they saw an employee, who turned out to
be Ballard, sitting for a total of 8 minutes on May 11, doing
nothing and not getting a drink of water.
The credited testimony of Rome and Ramirez, however,
squarely conflicts with the testimony of Caston in one signifi-
cant respect. Caston testified that both Rome and Ramirez re-
ported the events of May 11 to him on the morning of May 12.
Ramirez and Rome testified, however, that only Ramirez made
a report to Caston, and he did so on the same afternoon that
they had seen the employee loafing, which would have been the
afternoon of May 11.
Caston testified that it was not until he had the May 12
morning discussion with Ballard that he decided to issue the
warning notice; after that, he had to contact Rome and Ramirez
to get their badge numbers to fill out the warning notice; then
ensued his and Ballard’s vacation days, not making it possible
to issue the warning notice until May 18. While the vacation
days did occur, Caston did not have to know the badge numbers
of Ramirez and Rome to fill out the warning notice; if he did
feel he needed them, he could have gotten them immediately by
calling the electrical department office (for Rome’s) and the
welding department office (for Ramirez’), or he could have had
the sheet metal department clerk (who, after all, was going to
type out the warning notice, anyway) make such telephone
calls.
Caston concocted the May 12 morning reports from Rome
and Ramirez, and he concocted the May 12 discussion with
Ballard, to partially explain the delay in issuing the warning
notice. I find that on the afternoon of May 11, Ramirez went to
Caston and told him that he (Caston) had an employee loafing
“right now”; Ramirez told Caston that he did not know the
name of the employee, but Caston should then come out of his
office and see which employee it was. As Ramirez further testi-
fied, Caston then started walking out of his office, obviously to
see who the employee was, and Ramirez left Caston’s office,
and the area, at that point. I find that, when Caston went to see
which employee Ramirez was referring to, Caston saw Ballard.
Possibly Ballard was still sitting but possibly he was, by that
point, walking back to his job. Either way, Caston saw Ballard
on May 11, and he then knew who Ramirez was talking about.
There is no other explanation of how Caston would have
known that the loafing employee was Ballard. (Again, neither
Rome nor Ramirez knew Ballard’s name, and they certainly
could not have told Caston that it was Ballard.) Rome’s testi-
mony on cross-examination that, about 3 the same afternoon,
Caston thanked him for helping bring the matter to his attention
and indicated that he intended to talk to the employee, is further
evidence that Caston knew who the loafing employee was on
May 11. Finally, another demonstration of Caston’s incredibil-
ity on the point is contained in Caston’s self-conflicting testi-
mony that Rome named Ballard, then Rome did not name Bal-
lard, then (on cross-examination) Rome did name Ballard when
Rome gave his report during the morning of May 12.
I credit Ballard’s testimony that no one mentioned a warning
notice to him before May 18 when the warning notice was ac-
tually delivered by Caston. Although Caston knew who the

151 See the discussion in the case of alleged discriminatee Mark Can-
cienne, infra.
AVONDALE INDUSTRIES

1171
loafing employee was on May 11, he did nothing about it, then
or during the next day, May 12. I find that Caston did nothing
about Ballard’s loafing until he got back from his vacation on
May 18. On May 18, it is obvious to me, Caston found out that
Simpson had met Ballard on May 17, as discussed above, and
Simpson had been surprised that Caston had not already dis-
charged, or otherwise “gotten rid” of Ballard.152 When Caston
found that Simpson still harbored animus against Ballard, Cas-
ton then ordered the notice created. It is purely problematical to
say that, even without Simpson’s expression of animus, Caston
at some time after May 11 (or even May 12) would have issued
the warning notice to Ballard because of Ballard’s May 11
conduct. Again, Caston did not speak to Ballard about the mat-
ter until he handed the warning notice to Ballard on May 18,
the day after Simpson told Ballard that he thought Caston
would have already gotten rid of Ballard. (And Caston did not
testify that he did not create and issue the warning notice late
on May 11, or during the full day of May 12, because he had
been too busy, or that he decided to issue the warning notice on
May 11 but just forgot to do it on May 12.)
That is, I find that Respondent has not demonstrated that it
would have issued the May 18 warning notice to Ballard even
in the absence of his protected activities. I therefore conclude
that Respondent violated Section 8(a)(3) of the Act by the issu-
ance of that warning notice.
(6) Ballard’s first warning notice for not wearing
safety glasses
Background
Respondent maintains a work rule that, when in production
areas, employees must wear OSHA-approved safety eyewear,
either glasses with safety lenses and frames and side-shields, or
approved goggles (jointly, “safety glasses”). The degree of
uniformity of enforcement of this rule is an issue in the cases of
alleged discriminatees Darrell Smith and Leroy King, as well as
an issue in Ballard’s case. At minimum, it is fair to say that
supervisors do not issue a warning notice each time that they
see an employee not wearing safety glasses in production areas.
More than that, a December 28, 1994 letter from Simpson to all
employees indicates that a substantial number of employees
had, to that date, refused to follow the rules regarding the wear-
ing of safety equipment, and they had done so with impunity.
As Simpson states in the letter:

Recently I’ve noted some laxity in the wearing of per-
sonal protective equipment (PPE) in production areas.
Your hardhat, safety glasses and safety shoes are your first
line of defense. . . .
By this letter, all Production Department Supervision
is instructed to remind offenders of our PPE policy, re-
gardless who they work for, including other departments,
customers and vendors. I intend to place signs in many of
the production areas to help remind people to use their
PPE. If, by the end of January 1995, the use of PPE in
production areas is not uniformly followed, we will ask for
identification of offenders and order them out of the pro-
duction area in question. Offenders outside the Production
Department are to be brought to my attention. After 31

152 Simpson did testify that, after his May 17 exchange with Ballard,
he called Poleto, Caston’s superintendent.
January, the Production Department offenders will be
cited in accordance with standing Avondale policies.

(Again, to be “cited” is to be issued a warning notice.) Simp-
son’s letter is an admission that the PPE rules, including the
rule requiring safety glasses, were not being “uniformly fol-
lowed” as late as the date of the letter. Simpson would not have
issued such a letter if the lack of enforcement uniformity were
not significant. Moreover, it is to be noted that Simpson’s letter
states that warning notices are to be issued consistently only
after a grace period in which employees are to be reminded of
the rule.
Sheet metal department supervisors, like the supervisors of
many other departments, testified that they issued warning no-
tices for failures to wear safety glasses only after one or more
oral warnings failed to get the employees to abide by the safety
glasses rule. For example, Frickey was asked and he testified:

Q. [By Mr. Morgan]: Is it true, Mr. Frickey, that you
only give citations for safety glasses after repeated verbal
[oral] warnings to the employee?
A. No.
Q. Is that what you do most of the time concerning
safety glasses, that you only do it after you have repeat-
edly verbally warned the employee concerning safety
glasses?
A. If I repeat—if he is warned twice in the day, he will
get a citation.
Q. And that is, would you say, your policy? If you
have to warn him twice in a day, then you get a citation.
A. Oh, yes.

Even after repeated violations of the safety glasses rule, warn-
ing notices were not always issued (at least not before Simp-
son’s letter of December 28, 1994). For example, as discussed
in this section, Caston testified that when Ballard was under his
supervision, from mid-April through his discharge on June 30,
Ballard “constantly” was without safety glasses in production
areas; Caston, however, never issued a warning notice to Bal-
lard for that reason.
Ballard’s First Warning Notice for not Wearing Safety
Glasses—the General Counsel’s Evidence
On June 6, Ballard was still on Caston’s crew. Ballard testi-
fied that June 6 was another day that he wore a union T-shirt to
work. On that date, when he was in a production area, Foreman
DeNicola, who was riding a motorbike, stopped near him. At
the time that DeNicola approached Ballard, DeNicola was not
wearing safety glasses.153 Further according to Ballard:

He [DeNicola] said, “You are not tired of wearing that
shirt?”
And I looked at him, and I said, “No, I am not tired of
wearing this shirt.” And I said, “You don’t have nothing
better to do than to worry about me wearing this T-shirt?
That is the problem with the yard today, people like you.”
And then he said, “Put your safety glasses on.”
And I said, “Well, I was wiping my face because I was
sweating.”
And he said, “Put your safety glasses on.”

153 Ballard also testified that DeNicola was not wearing earplugs at
the time. Respondent, however, proved that ear plugs are required only
in especially noisy areas, and, because of the risks of collisions, they
are never required for those riding motorbikes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1172
And I said, “Soon I get through wiping my face I will
put my safety glasses on.”
He said, “Well, I am going to write you up.”
I said, “Well, write up—write them up.”
Then he drove off on his bike.

Ballard further testified that he was, in fact, wiping perspiration
from his face with his handkerchief when DeNicola told him to
put on his safety glasses. Based on Ballard’s testimony about
what DeNicola said about his T-shirt, paragraph 17 of the
fourth complaint alleges that Respondent, by DeNicola, “deni-
grated its employees because they were wearing clothing bear-
ing the Union s insignia.”
Further according to Ballard, later on June 6, DeNicola ap-
proached Ballard and Ballard’s helper, David Sanders. Accord-
ing to Ballard, Sanders was not wearing safety glasses at the
time, but Ballard was. DeNicola said nothing to Sanders, but he
told Ballard to come to his office. When he got to DeNicola’s
office, DeNicola told Ballard that he was issuing a warning
notice to Ballard because Ballard had not been wearing safety
glasses; Ballard again protested the he had been wiping perspi-
ration from his face; DeNicola replied, “I am just doing what I
am told to do.” DeNicola then issued to Ballard a warning no-
tice signed by himself and Schloegel. Checking and quoting
General Offense-12 of the Avondale Employees’ Guide, the
warning notice states:

Violation of Company safety rules and regulations
through carelessness. Employee was observed not wearing
safety glasses on job. Employee has been verbally warned
on same [i.e., same offense] on several occasions. FINAL
WARNING.

On direct examination, Ballard was asked, and he testified:

Q. Prior to June 6, 1994, had you ever been verbally
warned on several occasions about not wearing safety
glasses?
A. No, I have not.
Q. At any time after your reinstatement at Avondale in
January of ‘94 until Joe DeNicola gave you a warning on
June 6 did any member of supervision at Avondale ever
speak to you about wearing your safety glasses?
A. No, they did not.

On cross-examination, however, Ballard was asked,
and he testified:

Q. [By Mr. Hymowitz]: June 6, 1994, was not the first
time Mr. DeNicola spoke to you about not wearing safety
glasses, was it?
A. Not that I can remember.
Q. You don’t remember any time before that that Mr.
DeNicola spoke to you about wearing safety glasses?
A. He might have. I don’t know.
Q. Oh. He might have? Well, isn’t it a fact that, on
February 2, 1994, Mr. DeNicola saw you not wearing
safety glasses while you were walking from the job site to
the tool room?
A. I don’t remember.
Q. And didn’t he tell you to—that you had better put
your safety glasses on at that time?
A. I don’t remember.

Ballard was then presented with his pretrial affidavit and asked:

Q. [By Mr. Hymowitz]: And isn’t it true in that affida-
vit that you say that Mr. DeNicola, on February 2, saw you
without safety glasses and he said, quote, “You had better
keep those safety glasses on your eyes?” Didn’t he tell you
that? . . .
A. Correct.
Q. And isn’t it also true that you said in that affidavit,
“I should have been wearing the safety glasses at the
time?”
A. Uh-huh. [Yes.] . . . I was coming out of the bath-
room at the time. And I was—I had to wash the glasses in
the bathroom, and I was wiping them off. And that was
what happened and how he saw me on that incident.

From these admissions on cross-examination, I find that, on
February 2, at a time that Ballard was not wearing safety
glasses (but should have been), DeNicola told Ballard that he
“had better” put them on.
As well as reflecting a lack of credibility in Ballard, the ad-
mission by affidavit raises the issue of whether DeNicola’s
February 2 statement to Ballard constituted a warning of disci-
pline. Not every instruction constitutes a warning of discipline;
certainly, no more than telling an employee to get to work (e.g.,
“Come on, Joe, let’s get with it.”) is such a warning of disci-
pline. Anything more than that, however, would seem to consti-
tute a warning of discipline. I believe that an oral warning of
discipline is issued when supervisor tells an employee that he
“had better” do something that the employee had not been do-
ing (if, of course, the thing that the employee had not been
doing is the subject of a disciplinary work rule). Based on Bal-
lard’s admissions and this reasoning and conclusion, I find and
conclude that on February 2, DeNicola orally warned Ballard of
discipline if he did not wear his safety glasses.
Ballard’s First Warning Notice for not Wearing Safety
Glasses—Respondent’s Evidence
DeNicola (vol. 119) testified that twice on February 2 he saw
Ballard in production areas without his safety glasses. DeNicola
admitted that he knew at the time that Ballard had recently been
reinstated from his 1993 discharge. The first time on February 2
that DeNicola saw Ballard without safety glasses, Ballard was
walking toward a tool room; DeNicola asked Ballard where his
safety glasses were, and Ballard told him that he did not have
any yet. According to DeNicola, “I said, ‘Go get you a pair and
let’s put them on.”’ About two hours later, DeNicola saw Bal-
lard in a production area, again without safety glasses. It was
then that he told Ballard, as Ballard testified, that he “had bet-
ter” put on his safety glasses. This second instruction, not the
first, is the oral warning that I have found to have been issued
by DeNicola to Ballard on February 2.
In mid-April, Ballard was moved from Frickey’s crew to
Caston’s crew where he stayed until his discharge on June 30.
On direct examination, Caston was asked about Ballard’s dili-
gence in following the rule requiring safety glasses, and Caston
testified:

Q. How often would this happen, from the time that he
started working with you?
A. Constantly. I would tell him to go on and put his
safety glasses on, and he would go—generally go and get
a pair of safety glasses and, usually the next day or after
lunch, you know, two or three hours later, four hours later,
AVONDALE INDUSTRIES

1173
he wouldn’t have his safety glasses on. He would still—he
would go back to his sunglasses.
Q. And what would you do then?
A. I would tell him to put his safety glasses on. Take
the sunglasses off, because they weren’t OSHA-approved.

Only in general terms, which I have discredited, did Ballard
deny this testimony.
DeNicola testified on direct examination that on June 6 he
twice saw Ballard not wearing safety glasses in production
areas. The first time, Ballard had safety glasses on a cord
around his neck; DeNicola told Ballard that he would issue
Ballard a warning notice if he did not wear the safety glasses.
Ballard replied, “You can write me up 100 times; I don’t care.”
DeNicola was not asked whether Ballard complied with his
order to put on his safety glasses. DeNicola testified that later
in the day DeNicola saw Ballard in a production area, again not
wearing safety glasses. DeNicola was not asked what was said
during that second confrontation of June 6; instead, he was led
directly to deny that he asked Ballard if he were not tired of
wearing the union T-shirt. After the denial, DeNicola was still
not asked what had been said during the second confrontation
with Ballard on June 6. DeNicola also was not asked whether
Ballard’s helper, Sanders, was present but not wearing safety
glasses.
DeNicola testified that after he left Ballard, he told Schloegel
that he intended to issue a warning notice to Ballard. DeNicola
testified, “So Mr. Schloegel said, ‘Well, let’s write him up and
make it a final warning.”’ DeNicola further testified that, later
in the day, after he had gotten the warning notice typed up, he
sent his expediter to summons Ballard to his office (rather than
going himself to summons Ballard, as Ballard testified). When
Ballard arrived, DeNicola read the above-quoted warning no-
tice. DeNicola was not asked what else, if anything, was said
during the meeting in his office in which he presented the June
6 warning notice to Ballard.
As noted, Caston testified that Ballard “constantly” worked
without his safety glasses, although many times he had told
Ballard to put them on. Respondent relies on this testimony to
show that DeNicola’s warning notice was preceded by Caston’s
oral instructions to Ballard to put his safety glasses on. On
cross-examination, however, DeNicola flatly denied that he
discussed issuing the June 6 warning notice with Caston, and
there is no evidence that DeNicola knew of Caston’s experience
with Ballard.154 Caston, moreover, did not testify that he ever
discussed his experiences with Ballard’s not wearing safety
glasses with DeNicola, and it is clear that he did not.
Schloegel (vol. 109) testified that DeNicola approached him
on June 6 and told him that twice that day he had caught Bal-
lard without safety glasses in production areas. DeNicola told
Schloegel, “I don’t know what to do any more.” Schloegel
testified that he told DeNicola:

I said, “What you need to do, Joe, is issue him a writ-
ten warning. You know, you verbal, verbal, verbal. That is
all right. But maybe you will snap him if you put him—

154 On redirect examination, after a break requested by Respondent’s
counsel, DeNicola changed his testimony to state that he did not re-
member discussing the matter with Caston; this was one more manifes-
tation of DeNicola’s lack of credibility, and another reason that I have
credited Duplantis and other employees over DeNicola’s denials of
remarks alleged to have violated Sec. 8(a)(1), supra.
put a written warning in his hand. . . . Go ahead and do
that. Give him a written warning.”

Schloegel further testified that he told DeNicola to make the
warning notice “final.” Schloegel was asked and he testified:

Q. And why did you want to make it a final written
warning?
A. Repeats. Just repeats all the time. You know what I
mean? He did it not—just a few minutes before. Okay?
[I told DeNicola,] “Give him a final written warning.
Maybe he will snap out with that.”

Schloegel did not testify that he knew, on June 6 (or thereafter),
that Caston had observed Ballard not wearing safety glasses in
production areas.
Respondent argues that the issuance of Ballard’s warning no-
tice could not have been violative because on the same day that
he issued a warning notice to Ballard, DeNicola issued safety
glasses warning notices to two other employees. Of course,
many other employees were issued warning notices for safety
glasses violations, but a significant number, as has been shown
above, were not. The issue before the Board is why Ballard was
issued a warning notice although a significant number of other
employees were allowed, with impunity, to go without safety
glasses in production areas.
Ballard’s First Warning Notice for not Wearing Safety
Glasses—Conclusions
Ballard denied remembering DeNicola’s February 2 oral
warning for not wearing safety glasses, but he testified that he
was exiting a restroom, wiping his glasses, when he got it. Ob-
viously, Ballard was not telling the truth about receiving that
oral warning. Ballard’s acknowledgment in his affidavit that he
should have been wearing the safety glasses when he was orally
warned on February 2 further shows that his excuse of wiping
his glasses off was nothing more than a self-serving, incredible,
rationalization. Moreover, the tactic shows that Ballard would
concoct such an excuse to defend against valid accusations that
he was found not wearing safety glasses when he should have
been, as discussed below. I believe that Ballard was not wear-
ing his safety glasses when he was approached on June 6 by
DeNicola, and he did not take them off only to wipe perspira-
tion from his face.
Nevertheless, DeNicola was not wearing safety glasses ei-
ther. Also, DeNicola said nothing to Ballard about his safety
glasses until Ballard gave an unsatisfactory answer to DeNi-
cola’s question of whether Ballard was not tired of wearing the
union T-shirt. That is, I credit Ballard’s testimony that DeNi-
cola approached him with the question about his T-shirt, and
DeNicola announced the warning notice for safety glasses only
after Ballard gave his response. The key to making this credi-
bility resolution lies in the fact that DeNicola spotted Ballard
without safety glasses in the production area only once during
the morning of June 6. Had there been a prior warning that
morning (or even a prior instruction that morning) DeNicola
assuredly would have mentioned it in the written warning; in-
stead, DeNicola referred only to an indefinite time of “several
occasions” to state when the employee had been warned before.
Moreover, further reason to disbelieve DeNicola’s testimony
(that there were two occasions during the morning of June 6
that he saw Ballard without safety glasses) lies in the fact that
DeNicola was not asked what was said when he saw Ballard
without safety glasses in the production area for the second
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1174
time. (DeNicola was asked, by leading questions, what was not
said on that second occasion, but I discredit that testimony.)
After DeNicola left Ballard, he sought out Schloegel and told
him that he was going to issue Ballard a warning notice;
Schloegel told DeNicola to make the warning notice “final.”
Schloegel testified that he gave this instruction because of Bal-
lard’s “repeats” as Schloegel put it. Of course, there were no
such repeats; Ballard had not, since his reinstatement, been
issued a warning notice for not wearing safety glasses. (Ballard
and DeNicola agree that in a production area on June 6, DeNi-
cola told Ballard that DeNicola was going to issue to Ballard a
written warning notice. This agreement, and DeNicola’s testi-
mony that he told Schloegel that he intended to issue a warning
notice to Ballard, belies Schloegel’s testimony that DeNicola
told him that he did not know “what to do” about the situation.
This is just one of the many points of incredibility in
Schloegel’s testimony; many others are discussed below.) After
his conference with Schloegel, DeNicola returned to Ballard
and his helper Sanders, and DeNicola then issued Ballard the
warning notice. As he did so, according to Ballard’s undisputed
testimony, DeNicola ignored Sanders who was then working
without safety glasses. Although Sanders, as Ballard admitted,
was wearing prounion insignia, there is no contention or evi-
dence that he was as active a prounion employee as Ballard;
certainly, there is no evidence that Sanders had been reinstated
pursuant to a Board settlement agreement.155
I find that on June 6 DeNicola introduced his remarks to Bal-
lard by asking him if he were not tired of wearing a union T-
shirt. When he did not get the response that he wanted, DeNi-
cola told Ballard that he would be issued a warning notice for
not wearing safety glasses. This DeNicola did, even though
Ballard’s then-immediate supervisor, Caston, had condoned
Ballard’s “constantly” failing to wear safety glasses in produc-
tion areas. I further find that Schloegel and DeNicola decided to
make the warning notice a final warning notice, not because of
a second sighting of Ballard without his safety glasses that
morning (something that did not happen), and not because of
prior warnings on “several occasions” (something that was not
corroborated), and not because DeNicola had known about
Caston’s instructions when Caston “constantly” found Ballard
without safety glasses (because, as DeNicola testified truthfully
on cross-examination, he did not talk to Caston before issuing
the warning notice), and not because of DeNicola’s oral warn-
ing to Ballard on February 2 (something that was remote, and
something that DeNicola did not mention as a basis for the
warning notice). DeNicola issued the warning notice, and made
it a final warning notice, because of Respondent’s animus
against what the T-shirt stood for, in general, and Ballard’s
unsatisfactory answer to the T-shirt inquiry, in particular.
That is, I find that Respondent has not demonstrated that it
would have issued the June 6 warning notice to Ballard even in
the absence of his protected activities. I therefore conclude that
Respondent violated Section 8(a)(3) of the Act by the issuance
of that warning notice. I have further credited Ballard’s testi-
mony that DeNicola approached him and asked if Ballard were
not tired of wearing his union T-shirt. DeNicola’s remark, and
Ballard’s protected response to it, constitute relevant back-
ground for the finding about the warning notice of June 6; how-

155 This factor distinguishes a case cited by Respondent on brief in
which employees of equal degrees of prounion activity were disci-
plined.
ever, DeNicola’s act did not constitute a separate violation of
Section 8(a)(1). The General Counsel cites no authority for the
proposition that denigration of an employee constitutes such a
violation; moreover, the Board has only found such a violation
where an employer denigrates a union and thereby conveys the
impression to employees that their efforts to achieve collective
bargaining will be futile. See, for example, Albert Einstein
Medical Center, 316 NLRB 1040 (1995). I shall therefore rec-
ommend dismissal of this allegation of the complaint.
(7) Ballard’s second warning notice for exiting gate
without permission
On June 28 Ballard was still assigned to Caston’s crew, but
Caston was absent on that day, and Frickey supervised Caston’s
crew as well as his own.156 Extensive discussion of the conflict-
ing testimony is not necessary. Over testimony by Ballard, I
again credit the testimony of gate-guard Winfield, and I find
that at 9:57 a.m., Ballard again exited gate 22 and again ignored
Winfield’s requests that Ballard give her a pass or his badge
number. Ballard came back through the gate, past Winfield, at
10:02. (The General Counsel argues that Ballard could not have
accomplished anything during this 5-minute period, so it is
unlikely that the event occurred. I disagree. I need not deter-
mine Ballard’s motives, but he knew that he had received a
warning notice for the identical conduct on March 31, and it
could well be that he thought better of the venture and turned
around.) Winfield called Schloegel and told him that Ballard
had (again) exited the gate without showing a pass or giving his
badge number. Schloegel located Frickey and asked if he had
given Ballard a pass; Frickey told Schloegel that he had not;
and Schloegel decided to issue a warning notice to Ballard.
Schloegel and Frickey drafted and signed a warning notice to
Ballard that states:

Major offense #11: Unauthorized exit from Company
premises at any location at any time. Employee left his
work area without permission; he went out of gate #22 at
9:57 a.m.
Major Offense #12: Failure to comply with instruc-
tions given by a Plant Protection officer, security represen-
tative or other proper authority in the performance of their
duties: When employee left through gate #22, Security
guard Patricia Winfield, Clock #1130, asked employee for
his clock #; he refused to give it to her. FINAL
WARNING.

Schloegel and Frickey then went to Ballard and presented this
warning notice. (The circumstances of that presentation gave
rise to Ballard’s second warning notice of June 28, and I shall
discuss those circumstances below. Now, however, I enter my
conclusions about the first warning notice that Ballard received
on June 28.)
There is no contention (or alternate contention) that Ballard
was treated disparately by being issued the warning notice for
exiting the gate, without permission, during his working time.
Based on my credibility resolutions, I find and conclude that

156 That is, the exact converse of the situation of March 31 existed.
On March 31, Ballard was assigned to Frickey’s crew, but Frickey was
absent and Caston was substituting for Frickey when Ballard exited the
gate during working time without permission. On June 28, as I find
herein, Ballard was assigned to Caston’s crew, but Caston was absent
and Frickey was substituting for Caston when Ballard exited the gate
during working time without permission for the second time.
AVONDALE INDUSTRIES

1175
Respondent has amply demonstrated that it would have issued
this warning notice to Ballard, regardless of his protected ac-
tivities, and I shall recommend dismissal of the allegation that
the issuance of Ballard’s first warning notice of June 28 vio-
lated Section 8(a)(3).
(8) Ballard’s second warning notice for not wearing
safety glasses
Ballard testified that at some point during the morning of
June 28 (evidently after he had returned from gate 22) Frickey
found him and told him that he needed to be in his own work
area. Ballard testified, “So I proceeded to go back to more or
less my work area.”157 Ballard testified that shortly after he
returned to his work area, he was approached by Frickey and
Schloegel who had ridden up to him on motorbikes. According
to Ballard, Schloegel told him that he was being issued a warn-
ing notice for exiting the gate without permission. Ballard de-
nied that he had done so and refused to sign the warning notice.
Further according to Ballard:

He [Schloegel] said, “Well, I guess you want a copy to
take to the Union people.”
And I say, “Well, I would like to have a copy.” . . .
[A]fter he gave me the warning notice then I took my
[safety] glasses off then, and I wiped my face. Then he
[Schloegel] said [to Frickey], “Archie, look; he don’t have
no safety glasses on. We could write him up for no safety
glasses.”
And I said, “Arthur, you don’t wear safety glasses nor
ear plugs.”
He told me, he said, “Fuck you.”
I say, “Look, Arthur, I respect you as my supervisor. I
never disrespected you; I never got out of the way with
you. I always respect you. You don’t have to curse me. I
am putting up with the write ups; I am putting up with the
harassment; I am putting up with it all, but you don’t have
to curse me.”
And him and Archie [Frickey] got on their bike[s] and
rode off.

Ballard further testified that within a few minutes he was again
approached by Schloegel and Frickey. Schloegel gave Ballard
another warning notice and asked Ballard to sign it. Ballard
refused; Schloegel gave Ballard a copy, shook his hand and
said, “Well, I will see you in court.” The second warning notice
issued to Ballard on June 28 is signed by Schloegel and
Frickey. It cites as a time, “11:25 a.m.”; checking and quoting
Major Offense-23 of the Avondale Employees’ Guide, the su-
pervisors wrote:

Deliberate violations of safety, security or plant
protection regulations. Employee refused to wear safety
glasses after being verbally warned on several occasions;
has had prior written warning for same; also was asked to
wear safety glasses today by Arthur Schloegel, Jr. FINAL
WARNING.

Ballard testified that the only time that he had his safety glasses
off during this confrontation with Schloegel and Frickey was
when he was wiping perspiration from his face.

157 This “more or less” testimony fortifies my conclusion that Ballard
had gone through gate 22 as Winfield described.
Ballard’s Second Warning Notice for not Wearing Safety
Glasses—Respondent’s Evidence
Schloegel and Frickey testified that when they approached
Ballard with the notice for exiting the yard, they were wearing
safety glasses. Frickey testified (vol. 116) that Schloegel gave
Ballard the warning notice and told him “see you in court.”
Then he and Schloegel turned and walked away from Ballard.
As they walked away, Ballard called out, in a mocking, sarcas-
tic tone of voice, “When am I going to get my next citation?”
Frickey and Schloegel turned around and saw Ballard, bent
over at the waist, one hand on hip, and head up with a sneering
expression on his face. This part of the testimony was undis-
puted, and I find that Ballard was using insolent body language
toward Schloegel and Frickey, as well as sarcastic, taunting
words.
Schloegel, further according to Frickey, immediately re-
sponded to Ballard, “Right now, you don’t have any safety
glasses on.” Frickey was asked and he testified:

Q. Now, after Mr. Schloegel told Mr. Ballard that he
was going to give him a citation right now because he
doesn’t have any safety glasses on, did Mr. Ballard say
anything?
A. Yes, he did.
Q. What did he say?
A. He said, “Arthur, you don’t have any earplugs on.”
Q. And what did Mr.—did Mr. Schloegel reply to that?
A. Yes, he did.
Q. What did he say?
A. “Dwight, I don’t need my safety glasses in this
area”—I mean—I am sorry—”earplugs.”
Q. Okay. Would you repeat what you heard Mr.
Schloegel say.
A. Yes. “Dwight, I don’t need my earplugs in this
area.”
Q. Was there anything else said in that conversation
between Mr. Schloegel and Mr. Ballard that you can re-
call?
A. No.

Ballard’s Second Warning Notice for not Wearing Safety
Glasses—Conclusions
Although he caught himself and attempted a change (and
counsel asked that the changed testimony be repeated),
Frickey’s first testimony was that Schloegel responded to Bal-
lard, “Dwight, I don’t need my safety glasses in this area.” I
believe that Frickey’s first response was the truthful one.
Frickey would not have given this reply if Schloegel had, in
fact, been wearing safety glasses. That is, Ballard accused
Schloegel of not wearing safety glasses because Schloegel, in
fact, was not wearing safety glasses. I further find that to this
valid observation by Ballard, Schloegel replied, “Fuck you.”
Schloegel (vol. 109) admitted that, when he presented the
gate-exiting warning notice to Ballard on June 28, he told Bal-
lard, “[S]ee you in court.” Schloegel testified that he did so:
“Because whenever you dealt with Dwight or something hap-
pened with Dwight, I would see lawyers. There was always
lawyers around.” On cross-examination, however, Schloegel
acknowledged that never before June 28 had he been in contact
with a lawyer as a result of dealing with Ballard; he further
admitted that he had had no dealings with or about Ballard
since March 31 (upon the occasion of Ballard’s first gate-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1176
exiting episode). Further on cross-examination Schloegel was
asked why he had not given Ballard a warning notice for not
wearing safety glasses even before Ballard challenged him to
bring his “next” warning notice:

Q. [By Mr. Morgan]: When you stood there and talked
to Mr. Ballard about him being outside of the yard, you re-
alized he didn’t have his safety glasses on at that time.
Isn’t that correct?
A. No. That is the thing. I didn’t even—I didn’t realize
that.

When Schloegel and Frickey approached Ballard, it was as
plain as the safety glasses that were not on Ballard’s face that
Ballard was not wearing safety glasses. Schloegel’s testimony
that he had not realized that Ballard had not been wearing
safety glasses until Ballard asked when he was going to receive
another warning notice was necessarily untrue. Further on
cross-examination Schloegel steadfastly denied that his “see
you in court” statement to Ballard was a reference to NLRB
proceedings. In fact, Schloegel denied that he had known that
Ballard (and Valentine) had ever filed unfair labor practice
charges or that they had ever claimed that they had been dis-
charged in 1993 because of their union activities. These denials
by Schloegel fly in the face of the testimony of his immediate
subordinate Kitzman who testified that on February 1:

Mr. Schloegel had called me and told me that Lennie
Valentine was coming to work for me and to put him to
work and treat him like any other employee, that he had
understood that the Labor Board had got his—had gotten
his job back, and I was to treat him like any other em-
ployee, and if I had any problems with him, to inform him.

Therefore, Schloegel’s testimony that his “see you in court”
remark referred to something other than NLRB proceedings
was also false. Further evidence of Schloegel’s mendacity lies
in his testimony that on February 1 he told Dubois and Kitzman
to treat Ballard and Valentine like any other employee because,
“I didn’t want no favoritism in anything,” as if favoritism to-
ward Ballard and Valentine were something to fear. Further
evidence of Schloegel’s untruthfulness lies in his denial on
cross-examination that he considered Respondent’s February 2
actions against Ballard and Valentine to be “suspensions,” al-
though an affidavit that he had previously signed used precisely
that word. Finally, as mentioned above, Schloegel testified that
it was he who first suggested to DeNicola the idea of issuing
Ballard a warning notice on June 6, although DeNicola (as well
as Ballard) testified that DeNicola had told Ballard at the time
of their confrontation that Ballard would be getting a warning
notice.
All of this is to say that Schloegel was not a truthful witness,
and thusly fortified are my conclusions that Schloegel lied
about having his safety glasses on, and he lied about cursing
Ballard, on June 28 when he and Frickey then presented to
Ballard a warning notice for leaving the yard without permis-
sion.
On the other hand, I do not believe that Ballard wore his
safety glasses in the production area on June 28 except when he
was wiping his face. That much of Schloegel’s and Frickey’s
testimonies was credible. Ballard had invoked his usual face-
wiping (or glasses-wiping) excuse for his failure to wear his
safety glasses on February 2, even though he admitted (on affi-
davit) that he should have been wearing his safety glasses.
Perhaps a different case would have been presented to the
Board if Schloegel had testified that he issued the second June
28 warning notice to Ballard in retaliation for Ballard’s making
an insolent challenge to his authority when he presented the
first warning notice of June 28. It would have been a natural
reaction and may well have constituted a complete defense to
the allegation. Schloegel, however, testified that he issued the
warning notice solely because Ballard was not wearing safety
glasses, something that he noticed only after Ballard’s exercise
in insolence. That testimony, however, was untrue, as I have
found above.158 Respondent does not present a Wright Line
defense when it presents only untruthful testimony. That is, I
find that Respondent has not demonstrated that it would have
issued the second (safety glasses) warning notice of June 28 to
Ballard even in the absence of his protected activities. I, there-
fore, conclude that Respondent violated Section 8(a)(3) of the
Act by the issuance of that warning notice.
(9) Ballard’s discharge for having received multiple
warning notices
Before 7 a.m. on June 29, Production Vice President Simp-
son met with Sheet Metal Department Superintendent Poleto,
General Foreman Schloegel, and Foreman Frickey. All that
came of that meeting was that Simpson told Poleto to go and
find out what excuse Ballard might give for having exited gate
22 during working time, without permission, during the previ-
ous day. Poleto met Ballard at the start of the shift and asked
Ballard why he had left the premises on the day before; Ballard
denied that he had done so. As both Poleto and Ballard testi-
fied, Poleto told Ballard that he was not then fired, but “they”
were discussing the matter with Respondent’s attorneys. Poleto
told Ballard to “go home.” (That is, Poleto suspended Ballard
for the day.)
On June 30, Simpson met with the same supervisors and
Winfield. After getting the various accounts, Simpson excused
all in attendance except Poleto. Simpson and Poleto reviewed
copies of all of the warning notices to Ballard that are discussed
above. Poleto testified:

So after reviewing all of those documents since he
[Ballard] has been back and several of them being final
warnings, is when I made the decision that it was that Mr.
Ballard deliberately didn’t obey the instructions from his
foreman and didn’t abide by the policies of the Company.
And at that time, I determined that he needed to be
terminated because he wouldn’t follow—he would delib-
erately wouldn’t follow the rules of the Company or in-
structions from his supervisor.

Simpson (vol. 139) testified consistently with Schloegel. I do
not believe that Poleto made the decision to discharge Ballard;
Simpson did, but it does not matter. Ballard was being dis-
charged because he had been issued all of the above-discussed
warning notices.
On June 30, Schloegel met Ballard before Ballard could sign
in. Schloegel told Ballard that he was discharged, “For not

158 I believe that Schloegel ventured this untruthful testimony be-
cause he felt forced to deny the simple fact that supervisors do not issue
warning notices each time that they see an employee not wearing safety
glasses in a production area. As Electrical Department Superintendent
Terry (vol. 92) put it: “You have got to be reasonable with it; other-
wise, you would be writing up everybody in the shipyard every day.
And, you know, that is not what we are there for.”
AVONDALE INDUSTRIES

1177
following Company rules and regulations,” according to Bal-
lard.
Ballard’s Discharge—Conclusions
Two of the warning notices (the ones for gate-exiting) that
Ballard was issued after his return to work pursuant to the
Board settlement agreement were valid, but there is no testi-
mony by either Poleto or Simpson upon which a conclusion
could be reasonably based that Ballard would have been dis-
charged solely because of those two warning notices even in
the absence of Ballard’s prounion sympathies. I have concluded
that Ballard’s April 26 warning notice for unauthorized post-
ings of handbills, Ballard’s May 18 warning notice for loafing
around the water cooler, Ballard’s June 6 warning notice for not
wearing safety glasses, and Ballard’s May 28 warning notice
for not wearing safety glasses, were issued in violation of Sec-
tion 8(a)(3). According to the testimony of both Simpson and
Poleto, Ballard was discharged, in part, because of these warn-
ing notices.
A discharge of an employee on the basis of an accumulation
of warning notices, some of which were issued in violation of
Section 8(a)(3), is itself a violation of Section 8(a)(3). I, there-
fore, conclude that by discharging Ballard on June 30, Respon-
dent violated Section 8(a)(3) of the Act. The June 29 suspen-
sion of Ballard (while “they” were discussing the matter) was
not specifically alleged in the complaint, but the matter was
fully litigated; the suspension was just a 1-day step in imposing
the violative discharge, and it is equally violative of Section
8(a)(3), as I further find and conclude.
2. Employees warned or discharged for absenteeism
or tardiness
As previously noted, the Avondale Employees’ Guide lists as
its general offense-1, “Unexcused absences of three (3) work-
ing days within a 30-day period.” The Guide also lists as major
offense-1, “Unexcused absences of three (3) consecutive work-
ing days.” Both offenses turn on whether Respondent’s super-
visors consider an absence to be excused or unexcused.
When a foreman completes his daily Man-hour Control Re-
port (MCR), and he then considers an employee’s absence to be
excused, he will enter (or “code”) an “05” on the MCR for that
absence. If the supervisor considers the absence to be unex-
cused, he will place an “06” on the MCR. As noted above, the
Avondale Employees’ Guide requires employees to notify their
superintendents or department heads of the reasons for ab-
sences and tardiness “on a daily basis.” Such notifications are
referred to as “call-ins.” Call-ins by first- and second-shift em-
ployees are to be made before, or in the early part of, the shift;
third-shift call-in requirements are discussed separately, below.
Many supervisors testified that, if employees give them ad-
vance notice that they are going to be absent, they will code the
employees’ absences as “05,” excused, on the days of those
absences. Some supervisors testified that if they know that an
employee has called in to their departmental office on the day
of an absence, they will also code the employee as “05,” even if
the employee has not given advance notice that he will be ab-
sent. Employees are coded “06,” unexcused, if they do not give
their foremen advance notice or their foremen do not know that
the employees have called to the departmental offices before
they make out their MCRs.
Respondent’s supervisors consistently testified that, whether
an employee is coded “05” or “06” on the day of his absence,
he is required to present documentation of the reason for his
absence when he returns.159 Respondent accepts most anything
for documentation; doctors’ excuses were the most common in
this case, but Respondent also accepts receipts for automobile
repairs, or even parts, if an employee claims that his absence
was caused by a breakdown of his automobile.160 If an em-
ployee fails to present documentation upon his return, his ab-
sence is considered to be unexcused, even if he had called in, or
had given advance notice, and even if his absence had origi-
nally been coded as “05.” On the other hand, even if an em-
ployee is recorded initially as “06,” his absence may not be
counted against him if he produces satisfactory documentation
when he returns. (Whether he called in, or gave other advance
notice, may be a factor in that determination.)
Records of attendance are maintained by departmental
clerks. The clerks in some departments maintain call-in logs
which reflect the days that employees call in and the reasons
that they give for their absences. Employees usually present
documentation to their foremen when they return from their
absences. The foremen usually photocopy the documentation,
return the originals to the employees, and send the copies to the
clerks. The clerks record the documentation on departmental
records. (The MCRs cannot be retroactively changed even if
employees present satisfactory documentation when they return
from absences; this is because, by the time an employee returns
and presents the documentation, the MCR of the day of his
absence has already been delivered to Respondent’s central
data processing department and recorded there.) The clerks
confer with departmental superintendents (or sometimes gen-
eral foremen) if employees’ absenteeism records appear to
warrant discipline under the Avondale Employees’ Guide. Then
decisions whether to discipline employees for absenteeism are
made by superintendents or general foremen.
Absenteeism, like other disciplinary offenses, is subject to
Respondent’s progressive disciplinary system. As stated in the
Avondale Employees’ Guide, the progressive disciplinary sys-
tem starts with warning notices and progresses through dis-
charges. In this section of the decision, I consider the cases of
the alleged discriminatees whom the General Counsel contends
were issued warning notices or discharged on the pretext of
absenteeism. (Also in this section, I consider the case of one
alleged discriminatee who was discharged for tardiness, and I
consider the case of another alleged discriminatee who was
issued one warning notice for union solicitation as well as three
warning notices for absenteeism.)
a. Isador Ancar’s discharge for absenteeism
Isador Ancar (vols. 19, 20, 131, and 158) was a brush painter
until he was discharged on June 29, 1993. The second com-
plaint, at paragraph 94, alleges that by discharging Ancar Re-
spondent violated Section 8(a)(3). The General Counsel con-
tends that Respondent discharged Ancar because of his known
union activities and expressions of sympathy which included
his accepting and distributing union literature in view of super-

159 There do appear to be a few examples where supervisors did not
require documentation, but they were not enough in number to find
that, when Respondent did require documentation from returning em-
ployees, it was engaging in disparate treatment, which is essentially
what the General Counsel contends.
160 Of course, some absences do not permit documentation; illness
short of that which requires purchase of medicine or medical services
would be an example. No such absence is an issue in this case, how-
ever.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1178
visors at one of Respondent’s gates, displaying union authoriza-
tion cards in the presence of a supervisor, and placing a “Un-
ion-Yes” sticker on his lunchbox. The General Counsel further
contends that Ancar’s prounion sympathies were known be-
cause he responded affirmatively to an unlawful interrogation.
The complaint further alleges that Ancar was threatened by a
supervisor in violation of Section 8(a)(1). Respondent denies
that the alleged threat and interrogation occurred. Respondent
further answers that the supervisors involved in Ancar’s dis-
charge had no knowledge of any prounion sympathies that An-
car may have held at any relevant time, and Respondent an-
swers that Ancar was discharged solely because of his record of
absenteeism. Finally, Respondent contends that Ancar is barred
from any possible remedy of reinstatement because, a few days
after his discharge (when he returned to the plant to check in
his company-owned tools and receive his final paycheck) An-
car attempted (unsuccessfully) to steal about 20 of Respon-
dent’s paintbrushes. The General Counsel replies that Ancar
was discharged disparately, and unlawfully, because other em-
ployees had worse absenteeism records, but they were no more
than issued warning notices for their conduct. The General
Counsel further called Ancar in rebuttal to deny that he at-
tempted to steal the paintbrushes. Ultimately, I find and con-
clude that Ancar was treated disparately, and he was discharged
unlawfully, but the preponderance of the evidence is that he did
attempt to steal paintbrushes from Respondent and he should be
denied reinstatement for that reason.
Ancar was first employed by Respondent in 1988, and he
worked until March 1992.161 Ancar was rehired in October
1992. Ancar testified that he distributed union handbills at Re-
spondent’s gate three times before the June 25 Board election.
Ancar testified that the following supervisors stood on the levee
overlooking the gate and saw him distributing the handbills on
one or more of those three occasions: General Foremen Tommy
Bourgeois and Glenn Clement, Lead Foreman Erroll Rodri-
gue,162 and Line Foremen Terry Knight and Randall Laborde.
Ancar testified that twice he saw Bourgeois taking notes as he
watched the handbilling in which Ancar participated. Ancar
further testified that he maintained a “Union-Yes” bumper
sticker on his lunchbox throughout the union campaign.
Ancar testified that, on April 17, he and two other employ-
ees, Calvin _____ and Connell _____ (the last names were
unknown to Ancar) were looking at union cards that they had
received at a gate. Foreman Jay Pertuit approached the three
men, and Ancar put his card in his lunchbox. Pertuit took Cal-
vin and Connell to another work area and then returned to An-
car to tell Ancar what job to do next. Ancar was asked and he
testified:

Q. What, if anything, was said when Mr. Pertuit came
back and told you what to do?
A. He told me if I sign a union card, I could get fired.
Q. And what, if any, response did you make?
A. I asked him what he meant by that.
Q. And what, if anything, did Mr. Pertuit do then?

161 Ancar testified that he “resigned” in March 1992. Respondent’s
records, however, indicate that his first employment ended when he
simply stopped coming to work, and he was terminated as assumed to
have quit.
162 In his testimony Ancar referred to Erroll Rodrigue as “Erol
Mendez.” The parties stipulated that the “Erol” to whom Ancar referred
necessarily was Foreman Erroll Rodrigue.
A. He walked away.

Based on this testimony by Ancar, paragraph 17 of the second
complaint alleges that Respondent, by Pertuit, “threatened its
employees with discharge because they engaged in union ac-
tivities.”163 Pertuit testified, but he did not deny this testimony
by Ancar. I found Ancar’s testimony on the point to be credi-
ble, and I conclude that, in violation of Section 8(a)(1) Respon-
dent, by Pertuit, on April 17, 1993, threatened its employees
with discharge if they signed union authorization cards.
In May, at his request, Ancar was transferred to wet dock-3
where Randall Laborde and Carl Mott Jr. became his foremen.
Comeaux’s Grocery Store (Comeaux’s) is located near the
plant. Ancar and alleged discriminatee Larry Gibson are
friends; Laborde and Gibson are also personal friends; Laborde
and Gibson often met at Comeaux’s to drink beer after work.
Ancar testified that in May, he went to Comeaux’s and found
Laborde and Gibson, and also Mott. Ancar joined the three
other men for beer. (Ancar testified that he had drunk beer after
work with Laborde at Comeaux’s “several” times. Ancar testi-
fied that only twice before had he drunk beer after work with
Mott at Comeaux’s, once several years before, and once during
the period following his being rehired in October 1992.) Ac-
cording to Ancar, as soon as he joined the three other men,
Mott asked him and Gibson if they had signed union authoriza-
tion cards.164 Ancar and Gibson told Mott, and Laborde, that
they had. Mott then asked Ancar and Gibson what the Union
could do for them. Ancar testified that he answered: “better
wages and need a change and better conditions.” Gibson an-
swered: “it would stop harassment by some of the foremen.”
Ancar testified that Mott and Laborde then denied that they had
ever harassed employees. Then, further according to Ancar:
“Mott asked . . . [i]f the election would come up, would we vote
yes for the election.” Gibson and Ancar replied that they would.
After that, the men discussed other things. Gibson (vol. 26)
testified that he and Ancar were at Comeaux’s, talking about
the Union, when Laborde approached them.165 Laborde imme-
diately waived Mott over to join them. Gibson testified that,
immediately upon Mott’s joining the conversation, Mott asked
him and Ancar if they had signed union authorization cards.
When the employees responded affirmatively, Mott asked them
why. Gibson showed the supervisors some union literature.
Mott, according to Gibson, responded that “the Union was just
going to hurt us.” Further according to Gibson, Mott and La-
borde, “both asked us if we intended to vote for the Union in
the election.” Gibson testified: “We both told him [sic] yes.”
Based on this testimony by Ancar and Gibson, paragraph 28 of
the second complaint (as amended at trial) alleges that Mott and
Laborde unlawfully interrogated employees.166
Mott (vol. 126) testified that Ancar initiated the conversation
about the Union at Comeaux’s, and Ancar and Gibson both

163 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against Ancar, as well as the
charge in Case 15–CA–12171–1.
164 When he was called by Respondent (vol. 131), Ancar admitted
that he was holding a union authorization card in his hand at the time of
this incident.
165 Gibson acknowledged that, from the first of the organizational
campaign, he told Laborde that he supported the Union.
166 See All dates mentioned in Clark’s case are between March 1,
1993, and January 10, 1994, unless otherwise indicated.
AVONDALE INDUSTRIES

1179
volunteered that they supported the Union. Mott denied that he
asked either Gibson or Ancar if they had signed a union au-
thorization card or if they would vote for the Union in the
scheduled June 25 Board election. Laborde (vol. 124) testified
that Ancar, as well as Gibson, had told him from the beginning
of the organizational campaign that he was “for” the Union. On
direct examination, Laborde was asked who brought up the
subject of the Union at Comeaux’s. Laborde answered that he
did not remember, but he knew that he did not. When asked
specifically if Mott had brought up the subject of the Union,
Laborde replied: “I don’t recall.” Laborde was then asked on
direct examination and he testified:

Q. [By Ms. Canny]: At any time that day at
Comeaux’s, did you ask Mr. Gibson or Mr. Ancar if they
had signed a union card?
A. No, I didn’t.
Q. At any point that day at Comeaux’s, did you ask
Mr. Gibson or Mr. Ancar if they were going to vote for a
union?
A. No.
Q. Why not?
A. There was no need to. I already knew how they
stood.
Q. Did you hear Mr. Mott ask Mr. Gibson or Mr. An-
car if they signed a union card?
A. No, I didn’t.
Q. Did you hear Mr. Mott ask Mr. Gibson or Mr. An-
car if they were going to vote for a union at Avondale?
A. No, I didn’t.

It is to be noted that Laborde flatly denied that he brought up
the subject of the Union, but he only testified that he could not
remember if Mott had done so. Also, in answer to direct, un-
equivocal questions, Laborde flatly denied that he had asked
Ancar and Gibson if they had signed union authorization cards
or if they were going to vote for the Union. In answer to the
equivocal, escape-providing, questions of whether he had heard
Mott ask the same questions, Laborde testified that he did not.
In my opinion, both supervisors were testifying untruthfully;
Mott was just willing to do so more directly.167 Although they
differed on the sequence of how the four men gathered at
Comeaux’s, Ancar and Gibson agreed about what they were
asked there. Gibson vacillated about whether he was questioned
by one supervisor or both, and from the examination of La-
borde it is clear that it was only Mott who questioned the em-
ployees. Even if both Gibson and Ancar had then, or previ-
ously, told the supervisors that they were “for” the Union, they
had not revealed that their union activities had gone as far as
signing union authorization cards. And even if there was an
underlying friendship between Laborde and Gibson, Mott was
not entitled to ask Gibson and Ancar if they had signed union
authorization cards; nor was Mott entitled to ask if either Ancar
or Gibson (still) intended to vote for the Union in the Board
election. Accordingly, I find and conclude that, in violation of
Section 8(a)(1), Respondent, by Carl Mott Jr. in mid-May 1993,
interrogated its employees about their union membership, ac-
tivities, and desires.

167 As noted above, Mott’s willingness to lie under oath was demon-
strated, inter alia, in his testimony that Larry Danos discharged dis-
criminatee Marshall, which testimony was squarely contradicted by his
own pretrial affidavit.
Ancar’s Discharge
Ancar received two written warnings for his absenteeism af-
ter he was rehired in October 1992. The first warning notice is
dated December 14, 1992; citing absences of November 23 and
25 and December 4, the warning notice states: “Absences of 3
or more days in a 30-day period. Failure to submit paperwork
for an excused absence for car repairs.” (Apparently for one of
the three cited absences, Ancar had given notice that he was, or
would be, absent for needed automobile repairs, and his ab-
sence was preliminarily recorded as excused, but he did not
submit documentation when he returned.) Ancar’s second
warning notice for absenteeism is dated February 5, 1993; cit-
ing absences of January 11 and 18 and February 4, the notice
recites: “Absences of 3 or more days in a 30-day period. Failure
to call into the main paint office during all of your absences.
You have been notified of the call-in procedure during ab-
sences.” Ancar testified that after he received the February 5,
1993 warning notice, he and employee Dee Singleton were
spoken to by Foreman Roland Ongeron. As Ancar acknowl-
edged, “He told us that if we missed any more days we would
be fired.”168
From June 1 until June 28, Pertuit was absent for jury duty
and vacation, and Lead Foreman Rodrigue directly supervised
Pertuit’s crew. Ancar was again absent on June 1; he was coded
“05” (excused) on Rodrigue’s MCR. (Rodrigue testified that he
believed that he coded Ancar “05” because Ancar had given
him satisfactory prior notice of his need to be absent on June 1.)
Ancar was again absent on June 21, one of the days that Pertuit
was absent for jury duty. Ancar testified that he took the day off
to get a marriage certificate. Ancar testified that he called in to
report his absence, and Respondent’s call-in log reflects that he
did so. Ancar further testified that he brought documentation
(the certificate) when he returned, but Rodrigue did not ask for
it, and he did not offer it to Rodrigue. Rodrigue coded Ancar as
“06” (unexcused) for June 21.
Ancar testified that he got married on Saturday, June 26, and
he went on his honeymoon to Biloxi, Mississippi (which is less
than a day’s drive from New Orleans). Ancar testified that on
Sunday night, he just decided not to come back to work on
Monday. On June 28, he called departmental clerk Joy Plai-
sance to report that he would be absent. According to Ancar: “I
told Joy that I wasn’t going to be in, I was out of town, and she
told me that I was fired.”
Ancar testified that he made this call to Plaisance at 7 on
June 28. In a claim that he made with the Louisiana Department
of Labor, however, Ancar acknowledged that he did not call in
until 9 on June 28. When she was called by Respondent, Plai-
sance (vols. 145, 146) identified the call-in log for June 28
which reflects no call from Ancar on that date. Respondent’s
counsel did not, however, ask Plaisance to admit or deny the
exchange that Ancar described. I credit Ancar about the sub-
stance of the call, if not the time.169

168 Singleton did have subsequent absences, and she was not dis-
charged. The General Counsel contends that the treatment of Singleton
proves disparate treatment of Ancar. Ongeron, however, was necessar-
ily referring to future unexcused absences, and Singleton’s absences
subsequent to Ongeron’s warning were excused.
169 As it will be seen, well before 9 on June 28, Plaisance knew from
Clement that Ancar had been discharged, and it is therefore unlikely
that she would have bothered to enter Ancar’s call in the call-in log if
she knew that. Accordingly, there is no significance in the fact that the
call-in log does not reflect Ancar’s call of June 28.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1180
On Tuesday, June 29, Ancar returned to the plant. He first
found Lead Foreman Rodrigue and asked why he had been
discharged; Rodrigue replied that Ancar should ask Clement,
who was then riding up on a motor bike. According to Ancar:
“I asked Glenn what was happening. He told me I was fired
because I missed Monday.” Ancar protested that he had been
on his honeymoon. Clement replied that Ancar should have told
Rodrigue (who had been substituting for Foreman Pertuit until
Pertuit returned from leave on June 28) that he was going to be
on his honeymoon on June 28. Clement further asked Ancar
why he had not done so. Ancar testified, “I told him that was
personal.” Further according to Ancar: “He [Clement] told me I
was fired and for Erol to escort me off the premises.”
The General Counsel contends that, at most, Ancar should
have been treated as having only one unexcused absence in
June, that of June 28. Rodrigue testified that he treated Ancar’s
June 21 absence as unexcused because Ancar did not present
documentation for his absence when he returned to work on
June 22. Ancar denied that each day’s absence required docu-
mentation; Ancar testified, “It is up to you if you want to bring
paperwork.” Then Ancar testified that it was up to the supervi-
sor to decide if documentation would be required of employees
who had been absent. Based on this and certain other testi-
mony, the General Counsel argues on brief that, solely because
Ancar called in on June 21, his absence on that date should
have been treated as excused. The preponderance of the evi-
dence, however, is that, as well as calling in, employees are
required to present documentation for absences, if possible.
Specifically in Ancar’s case, he was warned, in part, on De-
cember 14, 1992, because he had failed “to submit paperwork”
when he had been excused for 1 day for car repairs. Also, An-
car acknowledged that he did not offer his documentation to
Rodrigue when he returned to work on June 22 (and he did not
ask for more time to secure his documentation). There certainly
is no argument that a supervisor must seek out an employee and
ask for documentation of past absences; presumably, if an em-
ployee has it, he will tell his supervisor in order to validate an
excuse he had previously tendered or to prevent a previous
“unexcused” designation from being counted against him. I find
that Ancar was properly charged twice with unexcused ab-
sences in June; once for June 21, and once for his final absence
of June 28.
Ancar’s Discharge—Respondent’s Evidence
Respondent contends that Ancar was discharged solely be-
cause of: (1) his unexcused absences of June 21 and 28 which
(2) occurred after he had already received two warning notices
for absenteeism in the preceding 12-month period and, which
(3) occurred after he had been given two specific oral warnings
of discharge for any future absences. As I find herein, however,
General Foreman Clement made the decision to discharge An-
car on June 28, and, at the time, Clement did not know of An-
car’s June 21 absence or either of the prior oral warnings to
Ancar.
(The following narration of Respondent’s defense is com-
plicated by the fact that the testimonies of Respondent’s wit-
nesses conflicted about when Clement made the decision to
discharge Ancar, and they conflicted about what information
Clement possessed when he decided to discharge Ancar. Clem-
ent testified that he made the decision on June 29, after Ancar
returned to work from his June 28 absence. Clement further
testified that he made the June 29 decision at the job site solely
on the basis of (1) Ancar’s June 28 absence and (2) Ancar’s
warning notice history. Clement further testified that he found
out about Ancar’s warning notice history on June 29. Much
after Clement testified, however, Lead Foreman Rodrigue testi-
fied that Clement (and Superintendent Borg) made the decision
to discharge Ancar in a supervisors’ meeting on June 28, at
which time he told Clement (and Borg) about (1) Ancar’s June
21 absence and (2) Ancar’s history of oral warnings. Ulti-
mately, I conclude that the meeting described by Rodrigue did
not occur and that Clement made the decision on June 28,
without conferring with Rodrigue, when he knew only that
Ancar was absent on that date and that Ancar had two prior
(written) warning notices.)
Ancar’s warning notices of December 14, 1992, and Febru-
ary 5, 1993, are quoted above. Also as noted above, Ancar ad-
mitted that on February 5 Ongeron orally warned him that any
more absences would result in his termination. Respondent
contends that a second oral warning was given to Ancar on
June 22 by Lead Foreman Rodrigue. Again, Rodrigue substi-
tuted for Pertuit in June until Pertuit returned from jury duty
and vacation on June 28. Rodrigue testified that on June 22,
when Ancar returned from his June 21 unexcused absence, he
told Ancar that “the next day you miss unexcused there is a
possibility you will be terminated.” Ancar was called in rebut-
tal, but he did not deny this testimony by Rodrigue.
When Pertuit returned from vacation and jury duty on June
28, he resumed being the supervisor of the crew upon which
Ancar was scheduled to work. Rodrigue testified that he was
present at the beginning of the June 28 shift when Pertuit
signed in the crew. Rodrigue testified that when Ancar’s ab-
sence was noted he went to the office and met with Paint De-
partment Superintendent Bourg and General Foreman Glen
Clement. Rodrigue testified that at the “supervisors’ meeting,”
as I shall call it, Rodrigue reported: (1) Ancar’s absence of that
date, (2) Ancar’s absence of June 21, (3) his June 22 warning to
Ancar, and (4) Ongeron’s February 5 oral warning to Ancar.
(Rodrigue testified that he could make this report because he
had previously been informed of Ongeron’s February 5 warn-
ing to Ancar by Ongeron. Ongeron did not testify.) Further
according to Rodrigue, he, Borg, and Clement also possessed at
the June 28 supervisors meeting, and they reviewed there, An-
car’s two prior warning notices for absenteeism. Rodrigue fur-
ther testified that Clement checked with Plaisance and found
that as of that hour, 8 a.m., Ancar had not called in. Rodrigue
testified that he recommended that Ancar be discharged for
absenteeism, and Bourg and Clement agreed.
All of Rodrigue’s testimony about the supervisors’ meeting
is seemingly logical, and there exists the element of seeming
consistency with Ancar’s testimony that Plaisance told him on
June 28 (as I have found, at 9) that he had been discharged. The
problem with Rodrigue’s testimony about the supervisors’
meeting is that it is corroborated by neither Bourg nor Clement.
Clement was called by Respondent on day-86, well before
Rodrigue testified. The first question that counsel asked Clem-
ent about Ancar’s discharge was:

Q. [By Ms. Canny]: Directing your attention to June
29, 1994, do you recall whether or not you saw Mr. Ancar
that day?

That is, Clement was led directly to the day after Ancar’s final
absence on June 28. Clement was not asked how, or when, or
even if, he discovered on June 28 that Ancar was absent. Spe-
AVONDALE INDUSTRIES

1181
cifically, Clement was not asked about any supervisors’ meet-
ing of June 28. (Clement also was not asked for any testimony
that might explain how Plaisance could have told Ancar on
June 28 that he had been discharged.)
After being led to testify only about June 29, Clement testi-
fied that, at the jobsite, when Ancar appeared, he asked Ancar
where he had been on June 28. According to Clement, Ancar
told him that he had been absent on June 28 because he had
gotten married (and had not called in because it was “per-
sonal”). Clement testified that he then made a call on his port-
able radio. Clement was asked and he testified:

Q. [By Ms. Canny]: What did you do or who did you
speak to [then, on June 29]?
A. I called the main paint office on my radio to check
with Joy [Plaisance] and found out how many citations
this employee had in his folder, and I went and told [An-
car] that he had enough citations in his folder now to war-
rant a termination, you know. He should have told us
where he was at and why he missed.
Q. And did he say anything else?
A. Yes. He got very upset and name-calling went on.
He said, “I don’t think I had to do that. It was a personal
problem, and I don’t see what is the problem.”
Q. And what, if anything, did you do?
A. I terminated him. . . . I called Security to escort him
out of the yard.

Respondent’s counsel did not ask Clement why he discharged
Ancar. From all it appears from this testimony on direct exami-
nation, Clement discharged Ancar solely because of his June 28
absence and his history of two warning notices. Specifically,
Clement did not testify that he discharged Ancar, even in part,
because he had learned that Ancar had been absent on June 21
and had received two oral warnings.
Further, when he was on cross-examination, Clement was
bluntly asked, and he bluntly replied:

Q. And it is fair to say on the morning you fired him,
you really didn’t know how many days he had been absent
when you fired him? . . .
A. I did not.

Clement was then asked about who else he may have consulted
with before deciding to discharge Ancar:

Q. And it is fair to say other than what you have told
us that Joy [Plaisance] told [you], no one else has told you
what is in Mr. Ancar’s personnel file.

. . . .

A. No one else has told me what is in Mr. Ancar’s per-
sonnel file. . . .
Q. Did you ever speak to Charlie Bourg about Isador
Ancar?
A. I may have.
Q. You may have; you might not have; you are not
sure?
A. Well, I may have.

. . . .

JUDGE EVANS: Did Bourg ever speak about Ancar to
you?
THE WITNESS: No, he didn’t.

In summary, Clement did not testify how he found out about
Ancar’s absence of June 28; he did not testify that he met with
Bourg or Rodrigue on that date (in a supervisors’ meeting or
otherwise); he did not testify that Rodrigue told him about An-
car’s absence of June 21; and he did not testify that he knew
about the oral warnings that Rodrigue and Ongeron had given
to Ancar.
Borg (vol. 81) testified twice on direct examination that he
had nothing to do with the decision to discharge Ancar. On
cross-examination, Borg specifically denied that there was any
meeting such as Rodrigue described:

Q. And you didn’t deliberate in the decision to fire him
the last time he was fired.
A. No, I did not.
Q. And no one discussed it with you.
A. No.
Q. For example, none of his general foremen or line
foremen discussed it with you.
A. No. The only time I knew about it, when I seen the
papers on my desk that he was terminated.
Q. For example, Mr. Erroll Rodrigue didn’t discuss it
with you.
A. Erroll Rodrigue? I can’t remember whether he did
or not.
Q. But you have no recollection.
A. No.
Q. And you didn’t tell anybody anything that would
cause them to fire Mr. Ancar.
A. No, I did not.

That is, Borg’s testimony squarely conflicted Rodrigue’s testi-
mony that there was a June 28 supervisors’ meeting in which
Ancar’s absences of June 21 and 28, and Ancar’s oral warnings
and Ancar’s written warning notices were discussed. And, of
course, Borg’s testimony squarely conflicts with Rodrigue’s
testimony that the decision to discharge Ancar was made at
some “supervisors’ meeting” on June 28.
It is clear enough to me, and I find, that the supervisors’
meeting that Rodrigue described as having happened on June
28 did not occur; otherwise, Rodrigue’s testimony about the
meeting would have received corroboration, not contradiction,
from Clement and Bourg . The next question is why Rodrigue’s
testimony was fabricated.
Like Clement, Pertuit (vol. 95) testified for Respondent, but
he was not asked about the events of June 28. Like Clement,
Respondent’s counsel led Pertuit directly to the events of June
29; to wit:

[By Ms. Canny]: Your second day back at work, Tues-
day, June 29, did you have a crew?

Pertuit duly answered that he did, indeed, have a crew on June
29, something that is not in dispute. After meeting this nonis-
sue, Respondent’s counsel then asked Pertuit about what he
witnessed being said between Clement and Ancar on June 29,
another matter that is not in dispute. (Additionally, it is to be
noted that, in his testimony about the June 29 exchange be-
tween Clement and Ancar, Pertuit did not corroborate Clem-
ent’s testimony that, on June 29, after Ancar arrived at the job
site, Clement used his radio to call anyone. This failure of cor-
roboration by Pertuit is part of the reason that I find infra that
Clement’s radio call to Plaisance occurred on June 28, not June
29.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1182
Pertuit, not Rodrigue, was Ancar’s direct supervisor on June
28. One would have expected Pertuit to have testified about the
events of June 28 because, if Rodrigue’s testimony about the
supervisors’ meeting had been truthful, Pertuit could have cor-
roborated Rodrigue’s testimony that he (Rodrigue) was present
with Pertuit’s crew at the start of the June 28 shift when An-
car’s absence was first noticed. This was a critical element;
after all, that testimony by Rodrigue was the predicate for his
testimony that there was a June 28 supervisors’ meeting at
which Ancar’s entire record (written, oral, and absenteeism)
was reviewed by himself, Clement, and Borg. Although Pertuit
could have provided this critical testimony, he was not asked
for it by Respondent. The question is why.
It appears to me that Clement and Pertuit were steered
around the events of June 28 because it was on that date, not
June 29, that (1) Clement went to the jobsite, (2) found from
Pertuit, not Rodrigue, that Ancar was absent, (3) radioed Plai-
sance, (4) found out that Ancar had two prior warning notices
for absenteeism, and (5) announced to Pertuit and Plaisance
that Ancar was discharged. I draw the strongest possible ad-
verse inferences against Respondent for its failure to ask Pertuit
about the events of June 28.
(Pertuit was, in all respects, a truthful witness; indeed, he
was one of the very few completely truthful witness who testi-
fied at the hearing. It is apparent to me that his truthfulness was
the reason that Respondent guided Pertuit around the events of
June 28. It is also Pertuit’s truthfulness that evidently caused
Respondent not to ask him about the above-described threat to
which Ancar testified; to wit: “He [Pertuit] told me if I sign a
union card, I could get fired.” On brief (p. “Paint-74”) Respon-
dent states that it “has declined to present testimony on this
allegation because it is time-barred as a matter of law and a
proper motion to dismiss was made at the hearing concerning
the allegation.” I do not believe this statement. Respondent
invariably asked other supervisors for such denials, even
though it also objected that there were no underlying charges
for the allegations based on the conduct of those other supervi-
sors. Also, even if there were no supporting charge for the
8(a)(1) allegation that Pertuit threatened Ancar, Ancar’s testi-
mony was evidence of the baldest kind of animus, and it was
animus that was directed immediately against an alleged dis-
criminatee who also claimed to have been interrogated (by
Mott, at Comeaux’s) about whether he had signed a union au-
thorization card. In all other cases, Respondent adduced testi-
mony in denial of such expressions of animus from its wit-
nesses, even when the expressions were not separately alleged
as violations.)
Clement testified that he did not routinely review MCRs;
therefore, someone else must have told him of Ancar’s June 28
absence. It was not Rodrigue, or Clement would have so testi-
fied. It is clear enough to me, and I find, that it was Pertuit who
reported Ancar’s June 28 absence to Clement, and I find that
Pertuit did so on June 28. Pertuit did not then tell Clement that
Ancar had also been absent on June 21 because Pertuit, himself,
had been absent on June 21, and Pertuit did not even know
about that absence.170 Also there is no evidence that Pertuit had

170 Of course, it could have been someone other than Pertuit who no-
tified Clement of Ancar’s June 28 absence, but it was not Rodrigue or
Plaisance; otherwise, Clement would have so testified. Whoever it was,
there is no basis for assuming that he (or she) knew of, and could have
told Clement about, Ancar’s June 21 unexcused absence (or prior oral
warnings).
known about Ongeron’s and Rodrigue’s oral warnings to An-
car, so he could not have told Clement about those warnings
before Clement discharged Ancar.
Therefore, on June 28, not June 29, with no more informa-
tion than that Ancar was absent on June 28, Clement radioed
Plaisance and asked how many warning notices Ancar had
accumulated by that date. When Plaisance told Clement that the
number was two, Clement, immediately, and without knowl-
edge of any other absences of Ancar, and without knowledge of
any prior oral warnings to Ancar, decided to discharge Ancar.
Then, as Ancar described, at the start of the shift on June 29,
Clement met Ancar and told him that he was discharged for
missing June 28, and only June 28.171
(It is further apparent that Clement, on June 28, at the job-
site, announced his decision to Pertuit, and that is why the
truthful Pertuit was not asked about the events of June 28. It is
further apparent that Clement then, on June 28, on the radio,
related his jobsite decision to Plaisance, and that is why Plai-
sance was not asked about the events of June 28 while she was
on direct examination. I draw an adverse inference against Re-
spondent for its failure to ask Plaisance when it was that Clem-
ent radioed her and asked for Ancar’s record of warning no-
tices. I further believe that Plaisance flatly lied when, on cross-
examination, she disclaimed memory of any of the circum-
stances of Ancar’s discharge. On June 28, Plaisance told Ancar
that he had been discharged; it is unlikely that by time of trial
she had forgotten that she did so, and why. Because the super-
visors’ meeting of June 28 did not occur, it is apparent that
Plaisance learned of Ancar’s discharge from her, undoubtedly
memorable, radio call from Clement.)
All of which is to say is that, contrary to the contention of
Respondent, Ancar was not discharged for two unexcused ab-
sences that followed two written warning notices and two oral
warnings. The decision-maker, Clement, did not know about
either oral warning or Ancar’s June 21 unexcused absence. At
best, Clement discharged Ancar because he was absent once
after having received two warning notices for absenteeism
within the preceding 12 months.
(It is further obvious to me that Respondent advanced (on
day-110 of trial) Rodrigue’s false testimony about the June 28
supervisors’ meeting because Clement had previously (on day-
86 of trial) made two admissions that are inconsistent with
Respondent’s theory of defense: (1) Clement admitted on cross-
examination that he did not know what absences, other than
June 28, that Ancar may have had. Therefore, Clement’s testi-
mony conflicted with Respondent’s theory that Ancar was dis-
charged, in part, because he had two unexcused absences after
having received two warning notices for absenteeism. (2)
Clement had also admitted that, in making his decision to dis-
charge Ancar, he possessed only Plaisance’s report of the num-
ber of warning notices that Ancar had accumulated; this was an
acknowledgment by Clement that he did not rely on Rodrigue’s
and Ongeron’s oral warnings. Therefore, Clement’s testimony
conflicted with Respondent’s further contention Ancar that was
discharged, in part, because he had received two oral warnings.
It was after this two-point failure of testimony by the decision-

171 At one point on cross-examination, Clement testified that part of
the reason that he discharged Ancar was that Ancar displayed an “atti-
tude” on June 29 when he asked Ancar where he had been on June 28.
If Ancar displayed an “attitude” on June 29, however, it was only after
he had been told (by Plaisance, on June 28) that he had been dis-
charged.
AVONDALE INDUSTRIES

1183
maker, I firmly believe, that Rodrigue’s false testimony was
procured.
(Rodrigue’s testimony about a supervisors’ meeting on June
28 was, I further believe, outright perjury. As discussed infra,
Respondent contends that alleged discriminatee Octave Rouege
should be denied any remedies under the Act because of his
perjury. I shall note again Rodrigue’s perjury when I consider
Respondent’s contention in regard to the effect of Rouege’s
perjury. At the same time I will also consider other cases of
perjury that were demonstrated at the hearing.)
Ancar’s Discharge—the General Counsel’s Evidence of Dispa-
rate Treatment
In its case, Respondent called several paint department su-
pervisors to testify that employees could (but not “would”) be
discharged after only one absence that followed two warning
notices for absenteeism that were less than 12 months old. On
rebuttal, in an effort to show Ancar was treated disparately, the
General Counsel introduced many warning notices that Re-
spondent issued in the 3 years prior to March 1, 1993, the date
that the overt organizational campaign attempt began.
Under the Avondale Employees’ Guide’s general offense-1,
warning notices are to be issued for three absences in a 30-day
period. It goes without saying that any employee who is issued
a third general offense warning notice for absenteeism has not
been discharged on the occasion of his second absence follow-
ing his second warning notice for absenteeism. As his Exhibit
800, the General Counsel introduced several hundred warning
notices that demonstrated that, from 1990 through the inception
of the overt organizational campaign, 58 employees were per-
mitted to accumulate three warning notices for absenteeism.172
As his Exhibit 792, the General Counsel introduced many other
warning notices that demonstrated that, in the 3 years before the
organizational campaign began, 66 employees were permitted
to accumulate four or more warning notices for absenteeism.
(In considering Ancar’s case, all of these comparative cases
are relevant, even though some involve employees in other
production departments. Respondent would have the Board
treat its departments as separate employers for purposes of
considering its discipline for absenteeism and some other of-
fenses, but Respondent would have the Board treat its depart-
ments as one employer for purposes of considering its disci-
pline for safety violations, theft, drug-use, vandalism and some
other offenses. This the Board will not do; Respondent’s sepa-
rate departments are not the functional, or legal, equivalents of
separate employers. Absent probative evidence that the em-
ployees have been informed of Respondent’s supposedly differ-
ing standards for different departments, comparisons of Re-
spondent’s discipline of employees in different departments
may be validly made. As it happens, however, a majority of the
cases disclosed by the General Counsel’s Exhibits 792 and 800,
combined, involve the paint department. Of the 58 comparative
cases disclosed by the General Counsel’s Exhibit 800, 39 in-
volve employees in the paint department. Of the 66 compara-
tive cases disclosed by the General Counsel’s Exhibit 792, 33
involve employees in the paint department.)

172 G.C. Exh. 800 includes 64 series, and therefore 64 cases to be
compared with Ancar, but I exclude the series marked 800(j),which
covers more than a period of 12 months. For purposes of contrast only,
I also exclude the series marked 800(z), (jj), (kk), (ll), and (ss), which
were not issued before the organizational campaign began.
In appendix D of this decision, I have summarized the cases
of employees who were shown by the General Counsel’s Ex-
hibit 792 to have been issued four or more warning notices for
absenteeism in 12-month periods from 1990 through the incep-
tion of the organizational campaign on March 1, 1993. As ap-
pendix D is read, it should be noted that many of the third (or
greater) warning notices conclude with words of “Final Warn-
ing.” These comments necessarily create the presumption that
the employee is not being discharged even for his third (or
greater) series of more than three or more unexcused absences
in 30-day periods; this is because there is no reason to expressly
“warn” an employee who is being discharged. (And the pre-
sumption is even stronger where the departmental superinten-
dents sign the warning notice; and Bourg signed all Paint De-
partment warning notices.) Even if this inference is not drawn,
however, it is again obvious that, when an employee received
his third (or fourth, or greater) warning notice for absenteeism,
he had been absent at least twice, without excuse, following his
second warning notice for absenteeism, and he was still not
discharged. Further to be noted as appendix D is read is the fact
that, quite often, more than three absences were made the sub-
ject of one warning notice; indeed, a single warning notice was
issued for 10 absences that an employee had in one 30-day
period. Obviously, where there are six absences noted on one
warning notice, for example, the employee could have received
two warning notices under the Avondale Employees’ Guide, as
did Ancar.
(Editing note: In addition to entering the bare numbers and
dates in appendix D, I also enter comments about aspects that
are particularly relevant to Ancar’s case. I also make some
comments about the relevance of certain of the entries in ap-
pendix D to the cases of other alleged discriminatees whom
Respondent contends were discharged for absenteeism. In ap-
pendix D, I have listed the comparative cases in chronological
order according to the dates of the first warning notices that the
comparative employees received. The documents upon which
appendix D is based were identified at trial by employees’
badge numbers; to facilitate review, especially review by com-
puter search, I include those numbers in the appendix, in paren-
theses, after the employees’ names.)
As noted above, the General Counsel’s Exhibit 800 includes
58 comparative cases of employees who were issued three
warning notices for absenteeism in 12-month periods before the
organizational campaign began. In addition to those 58 cases,
my examination of the General Counsel’s Exhibit 792 reveals
that nine cases included in that exhibit are reflective of three,
not four, warning notices’ being issued in 12-month periods.
(That is, although presented by the General Counsel as evi-
dence of four warning notices for absenteeism, and therefore
offered as part of the GC Exh. 792, these nine cases disclose
instances of three, not four, warning notices being issued for
absenteeism during 12-month periods, and they should have
been a part of the GC Exh. 800.) These nine (additional) com-
parative cases of three warning notices for absenteeism being
issued in 12-month periods during the 3 years before the organ-
izational campaign began on March 1, 1993, are:

1. On September 24, 1992, Paint Department em-
ployee Conrad Noil (447) was issued his third warning no-
tice for absenteeism in the twelve-month period that began
with his October 23, 1991, warning notice that is described
in Appendix D; absences of September 1, 14, 23 and 24
are cited. Like his warning notice of March 16, 1992, that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1184
is described in Appendix D this warning notice combines
Noil’s failures to call in on the dates of his absences, and,
also like the March 16, 1992, warning notice, it is marked
“Final Warning.”
2. On January 26, 1993, Noil was issued his third
warning notice for absenteeism in the twelve-month period
that began with his March 16, 1992, warning notice; ab-
sences of January 4, 13 and 25 are cited. Again, the warn-
ing notice combines Noil’s failures to call in on all days
cited, and, again, the warning notice concludes: “Final
Warning.” (That is, Noil was still not discharged; he was,
unlike Ancar, given another chance.)
3. On January 18 and September 12, 1990, Electrical
Department employee Ronald Baldwin (12658) was issued
warning notices for absenteeism. (The second of these was
for five separate dates ending on September 12.) On De-
cember 28, 1990, Baldwin was issued his third warning
notice for absenteeism; cited are his absences of December
3, 20 and 26, 1990.
4. On June 5 and July 31, 1991, Paint Department em-
ployee number 2411 (name illegible) was issued two
warning notices for absenteeism. On September 5, 1991,
this employee was issued another warning notice for three
absences within a 30-day period .
5. On January 14, and March 25, 1991, Shipfitting De-
partment employee Donald Harris (12281) was issued two
warning notices for missing three days in a 30 day period.
On May 27, 1991, Harris was issued his third warning for
missing three days in a 30-day period.
6. On February 13, 1992, Harris was issued his third
warning notice for absenteeism in the year that began on
March 25, 1991. This warning cites Harris’ absences on
January 6, 27 and 28 and February 11, 12 and 13, 1992. Of
course, these two rounds of absences could have been the
subject of two warning notices as well as one. The warn-
ing notice concludes: “This is your last and final warning.
Continue to miss time could result in your termination.”
7. On September 21, and November 10, 1992, Harris
was issued additional warnings for being absent. The latter
warning notice, of course, was Harris’s third for absentee-
ism in the 12-month period that began with his February
13, 1992 warning notice. Again this warning notice con-
cludes: “This is your last and final warning for missing
time. Continue to do so will result in your termination.”
8. On November 16, 1992, Paint Department employee
Gregory Martin (4290) was issued a warning notice for
absenteeism, his second within the twelve-month period
that began with his warning notice of March 19, 1992, that
is described in Appendix D. Then, on December 3, 1992,
Martin was issued his third warning notice within that
twelve-month period for absenteeism. The dates of No-
vember 23 and 24, and December 2, 1992, are cited. This
warning notice was marked “Final Warning.”
9. On September 18, 1992, despite his prior expressed
final warning, Paint Department employee Alvin Roussel
(4122) was issued his third warning notice for absenteeism
within the twelve-month period that began with his warn-
ing notice of October 23, 1991, that is described in Ap-
pendix D; the dates of September 1, 14, 17 and 18 are
cited; the warning notice is marked “Final Warning.”

Therefore, the General Counsel has demonstrated that, during
various 12-month periods from 1990 through the inception of
the organizational campaign, Respondent issued to employees
three warning notices for absenteeism 67 times, and it issued to
employees four or more warning notices for absenteeism an
additional 66 times.
Ancar’s Discharge—Conclusions
Respondent contends that Clement, the decision-maker in
Ancar’s case, had no knowledge of any prounion sympathies
that Ancar may have held at the time of his discharge on June
29. Respondent further relies on testimony by Rodrigue and
Clement that at one employer campaign meeting, Ancar made
remarks that would tend to indicate that Ancar opposed the
Union. Clement, however, did not deny that, at the time of the
discharge, he knew that Ancar favored the Union. Clement’s
failure to deny knowledge of Ancar’s prounion sympathies is to
be contrasted with his testimony about alleged discriminatees
Patrick Noah and Carlos Henriquez, as discussed infra. Clem-
ent discharged both Noah and Henriquez, and he categorically
denied that he knew of their prounion sympathies. The failure
of Clement to deny knowledge of Ancar’s prounion sympathies
at the time that he discharged Ancar belies any contention that
Clement did not know of those sympathies.
Moreover, I credit Ancar’s testimony that he distributed un-
ion handbills in the presence of supervisors and he displayed a
“Union-Yes” bumper sticker on his lunchbox. I find that, be-
cause of this open and obvious conduct, Respondent’s produc-
tion supervisors over Ancar, such as Clement, had knowledge
of Ancar’s prounion sympathies. This finding, of course, re-
quires an inference that Clement, and other supervisors, saw
Ancar’s prounion insignia. No inference, however, is necessary
for other evidence of Respondent’s knowledge of Ancar’s
prounion sympathies and union activities. It is undisputed that
Pertuit saw Ancar with a union authorization card (and, again,
it is undisputed that Pertuit told Ancar that he could be dis-
charged for signing one). Additionally, Ancar was interrogated
by Mott about whether he had signed a union authorization
card, and Ancar responded affirmatively. Respondent’s super-
visors therefore clearly knew of this union activity, as well as
Ancar’s prounion sympathies, at the time that he was dis-
charged.
Knowledge of Ancar’s prounion sympathies and activities
has been proved; Respondent’s animus against all prounion
employees also has been proved; and Respondent’s specific
animus against Ancar’s protected activity of signing a union
authorization card also has been proved. It must therefore be
concluded that a prima facie case that Ancar was unlawfully
discharged has been established by the General Counsel, and
the burden shifts to Respondent to demonstrate by a preponder-
ance of the evidence that it would have taken the same action
against Ancar even in the absence of his known protected ac-
tivities. Respondent’s defenses must therefore be examined.
To recapitulate: Respondent contends that Ancar was dis-
charged solely because, after twice receiving warning notices
for absenteeism, and after twice being orally warned that any
further absence could cause his discharge, he was twice absent
(on June 21 and 28). As I have found, however, the decision-
maker, Clement, did not know of the prior oral warnings to
Ancar, and he did not know that Ancar had been absent on June
21. Therefore, the elements of two absences and two oral warn-
ings could not have been factors in Clement’s decision. As I
have stated above, Ancar was discharged for no more than one
unexcused absence after two warning notices. The General
AVONDALE INDUSTRIES

1185
Counsel has shown on rebuttal, however, that a significant
number of employees (a majority of them in the paint depart-
ment) were not discharged even though they had one (or even
two) absences that followed two warning notices for absentee-
ism.
As detailed above, and in appendix D, during the 1990–1993
period there were 133 occasions that employees were issued
their third, or greater, warning notice for absenteeism; on 66 of
those occasions, the employees were issued their fourth, or
greater, warning notice for absenteeism. (And some employees
were issued their fourth absenteeism warning notices in 12-
month periods multiple times; one employee was issued his
fourth absenteeism warning notice in a 12-month period five
times.) Because all of these cases involve employees’ having
three (or more) absences following their second warning no-
tices, all of them involve employees with worse absenteeism
records than Ancar’s,173 and none was discharged.
Indeed, some of the cases shown by the warning notices that
I have detailed above and in appendix D involve employees’
being issued one warning notice for more than Ancar’s total
number of absences. That is, Ancar had eight unexcused ab-
sences in 1994, but Clement knew of only seven at the time that
he discharged Ancar; of the employees listed on appendix D,
however, one was issued one warning notice for 10 absences,
one was issued one warning notice for nine absences, one was
issued one warning notice for eight absences, and seven were
issued one warning notice for seven absences. Additionally,
many, if not the majority, of the fourth (or greater) warning
notices noted on appendix D are preceded by one or more “Fi-
nal” warnings. And, as further shown by appendix D, employ-
ees were issued as many as eight absenteeism warning notices
in 12-month periods without being discharged; moreover, the
employee who was issued his eighth absenteeism warning no-
tice (a paint department employee, as it so happened) had at
least four absences after his seventh warning notice without
being discharged.174
The case of one of the employees listed in appendix D is
most illustrative of all of these points. As I state in appendix D,
on November 1, 1990, paint department employee Fred Wilson
was issued 1 warning notice for 10 absences in the month of
October 1990. (Of course, these 10 absences could have been
the subject of three separate warning notices and Wilson’s sub-
sequent absences would be viewed accordingly.) On April 10,
1991, Wilson was issued his second warning notice for absen-
teeism; seven absences within a 30-day period are cited, and the
notice includes a warning for the offense of failing to call in on
any of his days of absence. The warning notice concludes: “Fi-
nal Warning.” On May 13, 1991, despite his prior expressed
final warning, Wilson was issued his third warning notice for
absenteeism; five absences in a 30-day period are cited; to wit:
April 15, 16, 17, and May 2 and 13, 1991; the notice also in-

173 Respondent’s supervisors testified with absolute consistency that
they orally warned employees before they issued such warning notices;
it must therefore be assumed that, like Ancar, these comparison em-
ployees were issued oral warnings as well as written ones.
174 At one point during the trial, I commented that I was “monumen-
tally unimpressed” with Ancar’s case, and Respondent quotes that
remark back to me on brief. My remark was made, however, over a
year before I saw the General Counsel’s rebuttal evidence which dem-
onstrates that Respondent, especially in the paint department, regularly
allowed other employees to compile attendance records that were worse
than Ancar’s without discharging them.
cludes a warning for the offense of failing to call in on three of
those dates. On June 7, 1991, Wilson was issued his fourth
warning notice for absenteeism in 12 months; four absences
within a 30-day period are cited, and it includes a warning for
failing to call in on three of those dates.175
The points that Wilson’s case well illustrate are these: Re-
spondent contends that, because the Avondale Employees’
Guide prescribes discharge for an employee’s third offense, all
second warning notices, specifically second warning notices for
absenteeism, are final, even if “Final” is not expressly stated on
the warning notice itself. This line of reasoning is the core of
Respondent’s defense for Ancar’s discharge; again, Respondent
contends that Ancar was discharged because he was absent
twice after having received two warning notices for absentee-
ism within a 12-month period. (I leave aside for the moment
my conclusion that Clement, the decision-maker in Ancar’s
case, only knew of one of Ancar’s unexcused absences follow-
ing his second warning notice.) Obviously, however, Wilson
was not discharged immediately after his April 16, 1991 ab-
sence, even though that was his second unexcused absence after
his second warning notice for absenteeism. Respondent offered
no surrebuttal of why Ancar was discharged on his second un-
excused absence after his second warning notice, but Wilson
was not. Nor did Respondent offer such surrebuttal to the cases
of the other employees listed in appendix D who were (a) not
discharged on their second absence after two warning notices
for absenteeism, and (b) allowed to accumulate other absences
and only warned again, not discharged. It is further to be noted
that Wilson’s third warning notice was based, in part, on ab-
sences of three consecutive days, April 15 through 17. This was
a violation of major offense-1 of the Avondale Employees’
Guide; Ancar had no prior major offense violations, yet he was
discharged and Wilson was not.176
In summary, under Respondent’s theory of defense for An-
car’s discharge, no employee should have received a third
warning notice for absenteeism if he had already received two
absenteeism warning notices within a 12-month period. That is,
under Respondent’s theory, no employee who had been issued
two warning notices for absenteeism should have been em-
ployed long enough to receive another warning notice that was
premised on three more absences. The exhibits introduced by
the General Counsel, however, demonstrate that exactly that
happened a significant number of times. Respondent offered no
evidence in surrebuttal of why Ancar was discharged on his
first (or second) unexcused absence after his second warning
notice, but the other employees were not discharged on the
occasion of their first (or greater) absence after two (or more)
warning notices for absenteeism. On brief, Respondent also
makes no suggestion of why the evidence of disparate treatment

175 For comparison with the case of alleged discriminatee Octave
Rouege, infra, it is to be noted that Respondent offered no evidence to
explain why Wilson, as well as many other employees mentioned in
Appendix D, was issued single warning notices for being absent and
failing to call in on those days of absences, but Rouege, as discussed
infra, was issued one warning for an absence and another warning for a
failure to call in on the date of that absence.
176 In fact, as detailed in appendix D, on November 11, 1991, Wilson
was issued his fourth warning notice for absenteeism in the year that
began with his warning notice of April 10, 1991. (That warning also
incorporated a violation of major offense-1 because Wilson had been
absent on 5 consecutive days.) Indeed, on March 13, 1992, Wilson was
issued his fifth warning notice for absenteeism in the year that began on
April 10, 1991.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1186
of Ancar should not be controlling in his case, other than to
state that nonpaint department evidence may not be used as a
comparison. In making that argument, as well as ignoring the
evidence that is, in fact, from the paint department, Respondent
is contending that historic, well-established theories of dispa-
rate treatment cannot apply to it because of the great autonomy
that it vests in its various departments and that it vests in super-
visors within various departments.177 Again, Respondent is one
employer, and the Board will not artificially treat its depart-
ments as conceptually separate employers when adjudicating its
employees’ rights under the Act.178
I find that Ancar was treated disparately, and, in view of the
animus directed toward Ancar and the other employees who
held prounion sympathies, I find that Ancar was treated dispar-
ately because of his protected activities.179 That is, the General
Counsel has presented a prima facie case that Ancar was dis-
charged unlawfully, and Respondent has failed to demonstrate
that it would have discharged Ancar even in the absence of his
known prounion sympathies. Therefore, I conclude that Ancar
was discharged in violation of Section 8(a)(3) of the Act.
Ancar’s Postdischarge Misconduct
Terminated employees are required to return company-
owned equipment to appropriate toolrooms before they will
receive their last paychecks. If employees do not make such
accountings on their last workdays, they are required to later
return to the plant for that purpose. When such employees re-
turn to the plant, they report to Respondent’s security depart-
ment and guards drive them (often in pickup trucks) to wher-
ever they may have stored company-owned equipment. When
he was discharged on Tuesday, June 29, Ancar did not make his
accounting of company-owned property that he had kept in a
locked toolbox. Ancar returned to the plant on Friday, July 2,
for such purpose.
Paint Department Foreman Ernie Cantrelle (vol. 103) testi-
fied that Ancar appeared about 8:30 with a guard at a satellite
toolroom. With Cantrelle at the time was the toolroom atten-
dant Warren Robicheaux (who did not testify). According to
Cantrelle:

Well, he [Ancar] said he was here to get his toolbox.
I told him, “Go ahead and get it.” . . .
Well, he left the toolroom. He went around the back
with the security guard, and Mr. Robicheaux went to help
him to carry his toolbox. . . .
Mr. Robicheaux came back and told me to go around
the back and see what was going on. So when I went back
there. . . .
Mr. Ancar and the security guard was carrying the box
to the truck, so I asked him to put it down and open it up.
He refused. I told him he wasn’t going to get out of the
yard unless they opened the box, because I had to see if
they had any tools left in there.

177 This contention of Respondent is extensively made in the “Over-
view” section of its brief.
178 In considering the many other cases of alleged disparate treatment
involved in this decision, I shall not repeat Respondent’s contention in
this regard, or my response.
179 Other evidence of disparate treatment of Ancar exists in the cases
of the 883 employees who were permitted to accumulate three or more
warning notices in 12-month periods from 1990 through 1994 without
being discharged, as demonstrated previously in the case of discrimina-
tee Marshall.
So he put the box down and they opened it up at that
point. He had a large number of paintbrushes, new paint-
brushes that was never used. . . . Approximately 26 to 27
brushes, brand-new ones. . . . They were individually
wrapped in cellophane, but they were loose.
I put them [the brushes] back in the toolroom.

Pertuit testified that he came upon the scene. He saw the
paintbrushes in the toolbox, but he estimated their numbers at
“[r]oughly 20, approximately 20.” Moreover, Pertuit described
their condition as: “They were brand-new, most of them.” On
other than this point, the testimonies of Cantrelle and Pertuit are
essentially consistent.
On rebuttal, Ancar denied that the toolbox was his and he
denied that it was moved. Ancar testified that he took a respira-
tor and a few other things out of the toolbox so that he could
return them to the main toolroom, and he left Respondent’s
paintbrushes and everything else in the toolbox. Ancar denied
attempting to steal any paintbrushes.
Ancar was an unimpressive witness; I have found his dis-
charge to be violative only on the basis of the undisputed evi-
dence of Pertuit’s threat, the false nature of the defense pre-
sented, the undisputed evidence of disparate treatment, and the
evidence of the interrogation by Mott at Comeaux’s. (Ancar’s
testimony about that interrogation was disputed, but only by the
equivocations of Laborde, and it was corroborated by Gibson.)
On the other hand, Pertuit, as I have emphasized before, was an
honest witness. I believe that Pertuit was telling the truth. I
believe that Cantrelle also was telling the truth, except for his
exaggerations about the numbers and conditions of the paint-
brushes. I find that on July 2 Ancar attempted to steal about 20
of Respondent’s paintbrushes, most of which were new. (That
Ancar may not have been the owner of the toolbox is not con-
clusive, as the General Counsel argues on brief. Either Ancar
was attempting to steal a toolbox, as well, or he wanted the box
taken where he could sequester 20 brushes out of the sight of
Respondent’s production supervisors.)
Because of his attempted theft of Respondent’s property, I
shall recommend that the Board not order Ancar’s reinstate-
ment, and I shall recommend that it order back pay for Ancar
only for the period of June 29 through 8:30 a.m. on July 2.180
b. Octave Rouege
Octave Rouege (vols. 48, 149), a painter, was issued two
warning notices on June 9; Rouege was assigned to an alleg-
edly more onerous job at Respondent’s “Shot House” on July
15; and Rouege was discharged on August 4, 1993. In several
different paragraphs, the second complaint alleges that Respon-
dent violated Section 8(a)(3) by these actions; to wit: the alle-
gations concerning the warning notices are located at paragraph
113(b), as amended at trial;181 the allegation concerning the

180 See generally Marshall Durbin Poultry Co., 310 NLRB 68, 70
(1993), which states that “if an employer satisfies its burden of estab-
lishing that the discriminatee engaged in unprotected conduct for which
the employer would have discharged any employee, reinstatement is
not ordered and backpay is terminated on the date that the employer
first acquired knowledge of the conduct.” There is no credible, proba-
tive evidence that Respondent allowed such thefts to occur without
discharge
181 Respondent contends that this amended allegation of the com-
plaint is not supported by a timely filed charge. The warning notices
were part of the putative reasons for Rouege’s discharge, and they are
therefore related to the complaint allegations concerning that discharge.
AVONDALE INDUSTRIES

1187
allegedly onerous job assignment is located at paragraph 100,182
and the discharge allegation is located at paragraph 113(a). The
General Counsel contends that Respondent warned Rouege,
then assigned Rouege to work that was more onerous, and then
discharged Rouege, all because of his known union activities
and expressions of sympathy which included his wearing union
insignia and speaking for the Union at an employer campaign
meeting. The General Counsel further contends that, in viola-
tion of Section 8(a)(1), Rouege was threatened with discharge
and unspecified reprisals, and the General Counsel contends
that Rouege was warned by a supervisor that the employees’
union activities were being maintained under surveillance.183
Respondent denies that the threats and warnings occurred. Re-
spondent further answers that its supervisors had no knowledge
of any prounion sympathies that Rouege may have held at any
relevant time. Respondent further contends that Rouege was
assigned to a different job solely because of business necessity
and that Rouege’s different job was no more onerous than that
of other employees in his classification. Respondent further
contends that Rouege was issued warning notices and dis-
charged solely because of excessive absenteeism and a failure
to call in to the paint department on one day of his absences.
Finally, Respondent contends that, even if the Board does find
a violation in Rouege’s discharge, Rouege should be denied all
reinstatement and backpay remedies because of (1) perjury that
he committed during the hearing, and, independently, (2) be-
cause he submitted false documentation to it as excuses for
some of his absences. The General Counsel replies that alleged
supervisory statements demonstrate an unlawful motive for the
allegedly onerous job assignment; the General Counsel further
replies that, although Rouege was absent to the extent claimed
by Respondent, Rouege was treated disparately because other
employees had worse absenteeism records, but they were issued
lesser, or no, discipline. Ultimately, I find and conclude that the
work assignment in question was more onerous, but it was not
made for unlawful reasons. I further find and conclude that the
warning notices were unlawfully issued and that Rouege was
unlawfully discharged. I do find that Rouege committed perjury
at the hearing, but I conclude further that, because of certain
demonstrated perjury that was committed by Respondent’s
supervisors, Rouege should not be denied reinstatement and
backpay because of his perjury. I do, however, conclude that,

Moreover, I permitted the amendment only after Respondent intro-
duced evidence that tended to show that the warning notices were is-
sued on a spurious, and possibly unlawful, basis. See Pincus Elevator
& Electric Co., 308 NLRB 684 (1992), where the Board held that such
amendments are permissible after a respondent adduces evidence of its
own misconduct. This factor distinguishes the instances in which I
refused to allow other trial amendments to the complaint.
182 Respondent contends that this allegation is also unsupported by a
timely filed charge. The allegedly onerous job assignment is alleged to
be a part of a violative course of conduct directed at Rouege that re-
sulted in his discharge. Therefore, the allegation is supported by the
undisputably timely filed charge over Rouege’s discharge.
183 Respondent further denies that timely filed charges support the
8(a)(1) allegations because no charge contains the in haec verba. I find
and conclude that the allegations are supported by the charge on
Rouege’s discharge because that charge necessarily includes such alle-
gations of specific expressions of animus that may have caused that
discharge. Moreover, as I stated above, all such complaint allegations
are supported by the first charge that was filed in this matter, the June
7, 1993 charge that was filed on behalf of alleged discriminatee James
Cox in charge number Case 15–CA–12171–1.
because of his submissions to Respondent of false documenta-
tion as excuses for his absences, Rouege should be denied the
remedy of reinstatement, and Rouege’s remedy of backpay
should terminate as of the time that Respondent discovered
Rouege’s submissions of false documentation.
Rouege’s false testimony regarded only the circumstances of
certain absences that he experienced, but, of course, Rouege’s
lying under oath necessarily affects some of the credibility
resolutions that I must make in other aspects of his case.
Rouege also admitted that, before being discharged for absen-
teeism, he lied to Respondent’s clerks and supervisors about the
circumstances of certain of his absences, and those admitted
lies affect certain other of my credibility resolutions, as well.
Rouege testified that, beginning about a month before the
June 25 Board election, he placed two “Union-Yes” stickers on
his hardhat and three on his toolbox; Rouege testified that he
“never” removed them. Rouege named one other of the General
Counsel’s witnesses as having worked with him, Donald
McGee. The General Counsel asked McGee (vol. 58) for cor-
roboration of certain testimony by Rouege about complaints to
Paint Department Superintendent Bourg about the July 15
transfer from wet dock-3 to the shot house, as discussed below.
McGee testified that he did make such a complaint; when he
did so, he was accompanied by alleged discriminatee Charles
Bennett, the General Counsel’s witness James Lanham, and
another man whose name he did not know. McGee described
the fourth man as: “This guy—I would say he was about 5 feet,
on a stocky build, Negro like myself, light complexion.” This
description fit Rouege well, and I find that the fourth man was
Rouege. McGee testified that, when he and the others went to
Bourg, Rouege was wearing two “Union-Yes” stickers on his
hardhat. Also, as discussed below, Rouege testified that about
July 16, with no one else present, he met twice with Bourg at
the shot house to ask to at least trade shifts with another em-
ployee. Bourg did not deny this testimony, and he did not deny
seeing prounion insignia that Rouege had on his hardhat at the
time. Other supervisors testified that they did not notice
Rouege’s wearing prounion insignia, or they did not remember
Rouege’s wearing prounion insignia, or they flatly denied that
he did so; however, I found Rouege’s testimony on this point,
as corroborated at least in part by McGee, and as undenied by
Bourg, to be credible, even given Rouege’s admitted lying
about his absences as discussed infra. I find that Rouege wore
prounion insignia on his hardhat from late May through the
date of his discharge.
Rouege testified that about 2 weeks before the Board elec-
tion Paint Department Superintendent Charles Bourg Sr. con-
ducted an employer campaign meeting that he attended. Ac-
cording to Rouege, 13 other employees and several supervisors,
including General Foreman Tommy Bourgeois, were present.
At the conclusion of the presentation, Bourg asked if any of the
employees had questions. Rouege testified that:

I asked him why we didn’t have any seniority in the
yard or wages and promotions. All I knew was only family
members was getting raises and promotions.

. . . .

[Bourg said that there] was a freeze in the yard. No one was
getting raises and promotions.
[I asked], How did Scott [get]—to [be] a foreman?

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1188
“Scott” is Scott Sutherland, a nephew of Bourg. Sutherland was
a sometimes-foreman in the paint department. Rouege testified
that upon his questioning about Sutherland’s promotion, Bourg
asked him to leave the meeting, and Rouege did so. When Re-
spondent’s counsel called Bourg to testify, she asked him noth-
ing about Rouege or whether he asked Rouege, or any other
employee, to leave an employer campaign meeting that he con-
ducted because of something that the employee said. Bourgeois
testified that he could not remember such an event, something
short of a denial. I credit Rouege.
Based on certain other testimony by Rouege, paragraphs 36
and 66 of the second complaint allege that Respondent, by
Sutherland, threatened Rouege in both June and July.184 Re-
spondent denies that, at the times alleged, Sutherland was a
supervisor within the meaning of Section 2(11) of the Act.
Sutherland’s supervisory status was attested to only by Rouege
and alleged discriminatee Audra Scott. Neither witness offered
credible, probative testimony that Sutherland possessed super-
visory authority at any relevant time. Moreover, Respondent
proved that Sutherland ceased being a foreman, and supervisor,
on May 16. Therefore, I shall recommend dismissal of the alle-
gations relating to Sutherland’s conduct. For possible purposes
of review, however, I here state that I do not credit Rouege’s
testimony that, shortly after he put the “Union-Yes” stickers on
his hardhat, Sutherland noticed them and stated (as Rouege
employed the mode of indirect quotation): “To be careful;
Avondale didn’t like union supporters.” I also discredit
Rouege’s testimony that, in July, Sutherland told him that Re-
spondent’s supervisors wanted to discharge him. (In the latter
case, however, even if I did credit the testimony, I would not
find a violation of the Act because at the time, as discussed
below, Rouege was compiling a substantial record of absentee-
ism, and a substantial degree of implicit ambiguity thus at-
tended Sutherland’s alleged remark.)
In early to mid-June, Rouege was transferred from the wet
dock-1 area to the wet dock-3 area. (This transfer is not alleged
to be violative.) Rouege testified that he was informed of the
transfer by Foreman L.—J. Bishop. According to Rouege,
Bishop told Rouege that he was being transferred because he
was on a “hit list.” Based on this testimony by Rouege, para-
graph 46 of the second complaint alleges that Respondent, by
Bishop, “threatened its employees with unspecified reprisals
because they aided or supported the Union.”185 Bishop (vol.
117) did deny this testimony by Rouege, and, because of
Rouege’s demonstrated willingness to lie under oath, as dis-
cussed infra, I credit Bishop. I shall therefore recommend dis-
missal of this allegation of the complaint also.
Further according to Rouege, he attended a union meeting on
July 10. On July 13, Paint Department Foreman James
Knoblock approached Rouege and told him that he knew that
Rouege had been at the union meeting because Respondent had
its “spies.” Based on this testimony by Rouege, paragraph 62 of
the second complaint alleges that Respondent, by Knoblock,
“created the impression among its employees that their union
activities were under surveillance by the Respondent.”186

184 Respondent contends that these 8(a)(1) allegations are not sup-
ported by timely filed charges. For the reasons stated above in sec.
IV(A)(1) of this decision, I find and conclude that these allegations are
supported by the timely filed charge of discrimination against Rouege,
as well as the charge in Case 15–CA–12171–1.
185 Id.
186 Id.
Knoblock (vol. 98) did deny this testimony by Rouege, and,
because of Rouege’s demonstrated willingness to lie under
oath, as discussed infra, I credit Knoblock. I shall therefore
recommend dismissal of this allegation of the complaint also.
(1) Rouege’s two warning notices for attendance offenses
When Rouege was on cross-examination, he was asked and
he testified:

Q. You knew you had to call in to the paint office if
you were going to be absent. Didn’t you?
A. Correct.
Q. And you had to bring paperwork for an absence to
be excused, didn’t you?
A. Correct.

That is, Rouege knew that for an absence “to be excused”: (1)
on the day of an absence, he needed to call in to the paint de-
partment clerk and state an excuse for that absence, and (2) on
the day that he returned from an absence, he needed to present
some documentation attesting to the validity of the excuse that
he had given when he did call in.
Rouege was absent the entire week of June 7 through 11. He
was also absent on Monday, June 14. Rouege was recorded by
his foreman, Lyle Leche, as “06” (unexcused) on June 7
through 10, but, for reasons that were never disclosed (because
Leche did not testify) Leche recorded Rouege’s absences of
June 11 and 14 as “05” (excused). As Rouege acknowledged on
day-149 of trial, when he was called by Respondent as an ad-
verse witness under Fed.Rules of Evid. 611(c), when he re-
turned to work on June 15 Rouege presented, as documentation
of an excuse for some of his absences, a completed form that
was entitled “Appointment Verification.” The form, received as
Respondent’s Exhibit 744, was on the letterhead of “Myrna L.
Collado, D.D.S.” I here quote the completed form, underlining
the entries that were made:

To whom it may concern:
This is to verify that Octave Rouege was seen in our
office on 6/7/93, 6/8/93 & 6/9/93 for dental treatment.
He/she will be able to return to work/school on 6/10/93.
If you have any questions, please call our office.
Because this document was produced by our office on
our letterhead, no signature is required.

Rouege’s foreman on June 15 was Lonnie Sanchez. At some
point on June 15, apparently after Rouege had presented the
“Appointment Verification,” Sanchez presented two warning
notices to Rouege. When he was on direct examination, Rouege
was asked nothing about his June 7–0914 absences, or the
warning notices that he received on June 15. The evidence con-
cerning these warning notices, which were made the subject of
a trial amendment to the complaint, was developed during Re-
spondent’s presentation, as noted above.
On day-48 of trial, when Respondent’s counsel took Rouege
on cross-examination, she showed him, and asked him about,
one of the two June 15 warning notices that Sanchez presented
to Rouege, but she did not show Rouege, or ask him about, the
other warning notice that Sanchez presented to him on June 15.
In response to Respondent’s counsel’s questions, Rouege iden-
tified Respondent’s Exhibit 221 as a warning notice that he
received on June 15. Dated “6/9/93,” the warning notice is
signed by Departmental Superintendent Borg as the issuing
supervisor, and Sanchez signed in the “Witness” space. The
box for Major offense-1 (unexcused absences of three consecu-
AVONDALE INDUSTRIES

1189
tive workdays) is checked. Citing absences of June 7, 8, and
9,187 the warning notice states: “You are hereby notified that
you have been absent an excessive amount of workdays.
Should you continue to do this, immediate disciplinary action
will be taken. Final Warning.”
Sanchez was called by Respondent on day-101 of trial. San-
chez testified that, as well as Respondent’s Exhibit 221, he
issued another warning notice to Rouege on June 15. Received
then as Respondent’s Exhibit 220, and also dated June 9 and
signed by Bourg and Sanchez, the warning notice has the box
for “Other” General offense checked. Citing June 9, the warn-
ing notice states: “On the above-mentioned date, you have ne-
glected to notify the main paint office of your absence. Should
you continue to do this, immediate disciplinary action will be
taken.”
On day-146 of trial, Respondent introduced its Exhibit 727, a
paint department roll book. Clerk Joy Plaisance testified that
absences are recorded in that book, and they are circled (in red)
if the employee brings in documentation of what he had offered
as an excuse when he called in. The roll book reflects that
Rouege was recorded as having brought in documentation for
all three absences of June 7, 8, and 9. Also on day-146 Plai-
sance identified the department’s call-in log that included June
7 through 9. The call-in log reflects that Rouege called in on
June 7 and 8, but not June 9.
Also, on day-146 of trial, apparently possessing no evidence
on the matter other than what Respondent had adduced, the
General Counsel moved to amend the complaint to allege that
Rouege’s two warning notices of June 15 were issued in viola-
tion of Section 8(a)(3).188 In making the motion, the General
Counsel contended (and now does contend) that, on the basis of
Respondent’s records, alone, it must be found that Rouege both
called in and presented documentation for his absences of June
7 and 8, and the General Counsel argued that Respondent
should have treated the absences of those two dates (if not June
9) as having been “excused.” the General Counsel therefore
argued that the warning notice for 3 consecutive days of unex-
cused absences was unlawfully issued. Also in making the mo-
tion, the General Counsel contended (and now does contend)
that other employees were absent without calling in, but, if they
were given any warning notices at all, their warning notices for
absenteeism simply noted the failures to call in but the failures
were not made the subject of separate warning notices in addi-
tion to their warning notices for absenteeism. The General
Counsel therefore argued that Rouege was treated disparately
and the warning notice for failing to call in on June 9 was
unlawfully issued, as well as the warning notice for absences on
June 7, 8, and 9.
At the time that the General Counsel made the motion to
amend the complaint to include the two June 15 warning no-
tices, there was no record evidence of any fraudulent nature of
the “Appointment Verification” that Rouege had given to San-
chez; nor was there then any record evidence that Rouege had
perjured himself during cross-examination. But the document
was fraudulent, and Rouege had perjured himself on cross-
examination, as I now show:

187 The warning notice did not mention Rouege’s absence of June 10,
even though Leche had also recorded that absence as unexcused. Ap-
parently the notice was prepared on June 9, the date that it bears. I so
find.
188 Over Respondent’s objection, I granted the motion for the reason
stated in fn. 182.

On Day-48 of trial, while Rouege was on cross-examination,
he was shown a document and asked:
Q. I show you what has been marked for identification
as Respondent’s Exhibit 223. See if this refreshes your
recollection as to whether or not you were absent from
work on June 7, 8, and 9.189 . . . Do you recall now
whether or not you were absent from work on June 7, 8,
and 9 of 1993?
A. Yes.
JUDGE EVANS: And were you?
THE WITNESS: Yes, I was. I had mouth surgery.
JUDGE EVANS: All right. Next question.

On day-149, when Respondent called Rouege as an adverse
witness, Rouege was again asked about his absences of June 7
through 9; this portion of Rouege’s cross-examination was
extraordinary, and I quote it at length. It is to be read with the
realization that Rouege ultimately admitted that he did not go to
the dentist on June 7, 8, or 9, nor did his son, and Rouege also
ultimately admitted that his sister, a secretary in the dentist’s
office, created the false “Appointment Verification” that he
submitted to Respondent on June 15; also to be borne in mind
is the fact that Rouege was also absent on August 2 and 3 and,
as he further ultimately admitted, he testified falsely that those
absences were caused by his needing to be at home to receive
service for his air-conditioner.

Q. Did you testify here previously that you had mouth
surgery on those days?

. . . .

THE WITNESS: Yes.

. . . .

Q. [By Ms. Canny]: Does that refresh your recollection
as to why you were absent from work those days?
A. Yes.
Q. And why were you absent from work?
A. I had a dentist’s appointment.
Q. You had a dentist’s appointment, or you had mouth
surgery?
A. Well, dentist, mouth surgery, ma’am—it is on my
excuse paper. I seen it earlier [in pre-trial, before appear-
ing on Day-149].
Q. Do you recall whether or not you called in on each
of those days?
A. No, I cannot recall if I called in or not.
Q. I direct your attention to Respondent’s Exhibit 741,
[the Paint Department call-in log] the entry for June 7,
1993—6/7/93. Does that refresh your recollection as to
whether or not you called in that day?
A. Yes.
Q. And did you report that your son had a filling that
fell out?
A. That is correct.
Q. Did you call in to work to report your absence on
June 8, 1993?
A. Yes.

189 R. Exh. 223 was not offered under that number, but apparently it
was the “Appointment Verification” that is quoted above. The “Ap-
pointment Verification” was received as R. Exh. 744 on day-146 when
it was offered through paint department clerk Joy Plaisance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1190
Q. And do you recall why you were absent from work
that day?

. . . .

A. Well, it [the call-in log] says, “Had a dentist’s ap-
pointment, the air-conditioning was broken.”
Q. Does that refresh your recollection as to why you
were absent that day?
A. Yes.
Q. Why were you absent that day?
A. Because I had an appointment and my air-
conditioner was broken.
Q. Did you have a dentist’s appointment that day?
A. I don’t believe, ma’am. I believe [sic] had been to
the dentist already.
JUDGE EVANS: Well, was the only reason you were ab-
sent on the 8th [of June] because your air-conditioner
broke down?
THE WITNESS: Yes.
JUDGE EVANS: Next question.
Q. [By Ms. Canny]: Not because you had a dental
treatment that day?
A. That is correct.
JUDGE EVANS: Did you have a dental treatment on the
previous day, the 7th?
THE WITNESS: Yes.
Q. [By Ms. Canny]: Didn’t your son have a filling that
fell out, and that is what you got dental treatment [for] on
the day before?
A. That is correct.
JUDGE EVANS: So [who got] the treatment, you or your
son?
THE WITNESS: My son.

After again being shown the “Appointment Verification”
Rouege was further asked and he testified:

Q. And why were you absent from work on the 7th,
8th, and 9th? Does this refresh your recollection as to why
you were absent?
A. Yes. Yes, it does.
Q. Why were you absent?
A. I went—brought my kid to the dentist and some
other things. I can’t remember.
Q. This states you were in the dentist’s office—
A. Correct.
Q. —on the 7th, 8th, and 9th.
A. Correct.
Q. Is that true?
A. Yes, it is.
Q. So you were at the dentist with your son on those
three days?
A. Correct. Not on all three days, ma’am.
Q. So is this excuse incorrect?
A. As far as?
Q. It says, “Octave Rouege was seen in our office on
6/7, 6/8, and 6/9 for dental treatment.”
A. Right.
Q. Is that correct?
A. Yes, but not all three days, ma’am.
Q. What days were you actually at the dentist’s office?
A. The 7th.
Q. And where were you the 8th and the 9th?
A. I couldn’t tell you. It has been three years, ma’am.
Q. Do you know why this excuse says you were in the
dentist’s office on the 8th and the 9th if you weren’t there?

. . . .

JUDGE EVANS: Overruled. Do you know?
THE WITNESS: No, sir.

. . . .

JUDGE EVANS: Sir, the 7th, 8th and 9th. . . . [d]id your
son receive treatment on those three days?
THE WITNESS: Yes.
Q. [By Ms. Canny]: All three days?
A. No, ma’am.
Q. I am just trying to find out why this says he did or
someone [else] received dental treatment at this dentist’s
office that explained your absence those three days. How
many of those days did either he or you go to the dentist?
A. One day, ma’am.
Q. And do you know why this excuse says that it was
three days?
A. No, I do not.
Q. Do you know why you were absent from work on
the 8th, 9th, 10th, 11th, and 14th?
A. No, ma’am.

After these reassertions that either he, or his son, did have den-
tal surgery, at least on June 7, and that he did not know why the
“Appointment Verification” stated that Rouege had had treat-
ment on June 7, 8, and 9, Rouege was further asked and he
testified:

Q. [By Ms. Canny]: Mr. Rouege, who is Monique
Rouege?
A. My sister.
Q. Your sister was employed by the dentist, Myrna
Collado, in 1992 up until November of 1993. Isn’t that
true?
A. That is correct.
Q. When she provided you that excuse for June 7, 8th,
and 9th, you or your son never went to the dentist on any
of those days. Isn’t that correct?
A. That is correct.
Q. In fact, your sister also provided you with absence
excuses for [prior absences of] September 1 of ‘92, Sep-
tember 17 of ‘92, November 2 of ‘92, and December 16 of
1992, and you weren’t at the dentist any of those times, ei-
ther, were you?
A. That is correct.
Q. You never went to Dr. Collado . . . nor did your
son?
A. That is correct.
Q. And when you testified here a few moments ago
that you took your son to the dentist on June 7, 1992 (sic),
that was not true, was it?
A. That is correct.

(After these admissions, Rouege also admitted submitting to
the paint department other false documentation including
documentation for his last absences before being discharged for
absenteeism; the subject of that documentation was service to
his air-conditioning that was actually not broken, as discussed
below.) Ultimately, Rouege insisted that he could not remem-
ber why he did not go to work on the 6 workdays from June 7–
AVONDALE INDUSTRIES

1191
14. Rouge’s testimony, that he waited for an air-conditioning
service person on June 8, was made out to be another lie under
oath, as well as a lie to Respondent’s paint department clerk
who took his call-in on that date. As discussed below, Rouege
further admitted giving false testimony to this court, and he
further admitted giving fraudulent documentation to Respon-
dent’s paint department concerning the reasons for his last ab-
sences before being discharged for absenteeism.
Sanchez was not Rouege’s foreman during his absences of
June 7–11 and 14, but he was Rouege’s foreman on June 15
when Rouege returned. Sanchez (vol. 101) testified for Re-
spondent that he issued the two warning notices of June 15 to
Rouege only because they were sent to him, through interoffice
mail, by someone in the paint department office. Respondent
offered no evidence of who made the decision to issue the two
warning notices of June 15, or why; specifically, Respondent
offered no evidence of who decided to issue separate warning
notices (one for the absences and one for the failure to call in
on June 9), or why.
As evidence of disparate treatment in the issuance of
Rouege’s June 15 absenteeism warning notice, the General
Counsel relies on Respondent’s definitions of “excused” and
“unexcused,” claiming that Rouege met the requirements for
“excused” absences on June 7 and 8, if not June 9. As evidence
of disparate treatment in the issuance of Rouege’s June 15 call-
in warning notice, the General Counsel relies on the many
warning notices listed above in the case of Ancar, which no-
tices combine the offenses of unexcused absences with the
offenses of failures to call in; the General Counsel argues that,
absent unlawful discrimination, Rouege’s offenses would have
been combined on one warning notice rather than spread to
two. In addition to those warning notices listed in Ancar’s case,
the General Counsel relies on a warning notice that was issued
to Rouege well before the Union’s organizational campaign
began. On October 25, 1991, Bourg and Knoblock issued to
Rouege a warning notice that has the box for General offense-1
checked. The warning notice cites absences by Rouege on Sep-
tember 30 and October 3, 9, and 14, 1991. The Reason for
Warning space is completed: “Absences of 3 or more days in a
30-day period. Failure to call in to the main paint office during
absences of 9/30 [and] 10/9, 1991.” Respondent offered no
evidence in surrebuttal on this point.
Rouege’s Two Warning Notices for Attendance
Offenses—Conclusions
It is undisputed that during an employer campaign meeting
Rouege spoke up to Bourg and complained about lack of wage
increases, seniority rights, and promotional opportunities.
Rouege was thereby voicing traditional concerns of employees,
and his action was one of protected concerted activity.190 In this
context of an organizational campaign, it was also protected
union activity. I have credited Rouege’s testimony that he wore
prounion insignia, the “Union-Yes” stickers on his hardhat,
from late May through the date of his discharge. By these open
and obvious displays, Rouege charged Respondent’s supervi-
sors who worked around him with knowledge of his prounion
sympathies. I find that Respondent’s supervisors knew of
Rouege’s prounion sympathies and union and protected con-
certed activities at the time they issued the June 15 warning
notices to him. (And, of course, as discussed infra, they knew

190 Neff-Perkins Co., 315 NLRB 1229 fn. 1 (1994).
of his prounion sympathies at the time of Rouege’s July 15
assignment to the shot house, and they knew of his prounion
sympathies at the time of Rouege’s August 4 discharge which
are also subjects of the complaint.) Respondent’s animus to-
ward prounion employees, especially those prounion employees
who wore prounion insignia, is established throughout this
decision. Therefore, the General Counsel has established prima
facie cases of unlawful discrimination by these acts toward
Rouege, and the burden shifts to Respondent to demonstrate by
a preponderance of the evidence that it would have taken the
same action against Rouege even in the absence of his known
protected activities. Respondent’s defenses must therefore be
examined.
Respondent has shown that it tells employees that, as well as
calling in for each day’s absence, they are required to furnish
documentation to support their claims of excuse, when they
return from those absences.191 Simply stated, Respondent does
not require its employees to submit documentation in advance
of their returns. The warning notice for 3 consecutive days of
unexcused absences that Rouege received on June 15 was cre-
ated, according to the date it bears, on June 9, well before he
returned. Then that warning notice for 3 consecutive days of
unexcused absences was issued to Rouege on June 15, even
though Rouege had, by then, produced documentation which, at
least facially, would have excused at least 2 of those days’ ab-
sences (June 7 and 8), if not all three. (The “Appointment Veri-
fication” was not even putatively effective to excuse Rouege’s
absence of June 9 because he had not called in on that date.)
Respondent offers no reason for its suspension in Rouege’s
case of its practice of allowing employees to present documen-
tation before a determination is made whether to issue a warn-
ing notice. Nor does Respondent offer any evidence of why a
warning notice for 3 consecutive days of unexcused absences
was actually issued to Rouege on June 15, even though he did
bring in facially adequate documentation for two of them. That
the documentation was at least facially valid is shown by the
fact that the absences were red-circled in Respondent’s roll
book because the documentation was presented.192
This complete failure of evidence, of course, is a failure to
show that Respondent would have issued the June 15 warning
notice to Rouege even in the absence of his protected activities.
I, therefore, find and conclude that by that action Respondent
violated Section 8(a)(3) of the Act.
Respondent further issued to Rouege on June 15 a warning
notice for failing to call in on June 9. In 1991, before the organ-
izational campaign and Rouege’s participation in it, Rouege
received a warning notice for unexcused absences on Septem-
ber 30 and October 3, 9, and 14, 1991. That one warning notice
also noted that Rouege had failed to call in on two of those
dates, September 30 and October 9. Additionally, of the 66
cases listed in appendix D in which employees were issued four
or more warning notices for absenteeism, 26 of the warning
notices described included warnings about failures to call in on
days of absences. Although Respondent has shown that, during
the 1990–1993 period, a few (but very few) separate warning
notices were issued for unexcused absences and failures to call

191 Again, Rouege admitted as much.
192 Respondent did not know at the time that the documentation that
Rouege presented on June 15 was fraudulent and, certainly, Respondent
does not contend that the false nature of that documentation had any-
thing to do with the issuance of the warning notice that was drafted on
June 9.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1192
in on the dates of those absences, it has produced no evidence
of why a significant number of employees, including Rouege,
were previously spared the imposition of separate warning
notices for failures to call in, and their written warnings for
absences and failures to call in on the dates of those absences
were combined. Issuing a separate warning notice to an em-
ployee, of course, has a significant impact on the employee
because it puts him one step closer to discharge under the terms
of the progressive disciplinary system of the Avondale Em-
ployees’ Guide.
As Respondent has offered no evidence of why Rouege was
issued a separate warning notice for a type of conduct that was
not made the subject of a separate warning notice in a signifi-
cant number of other cases, it has failed to demonstrate that it
would have issued to Rouege the June 15 warning notice for
failing to call in. I, therefore, find and conclude that, by that
conduct, Respondent has also violated Section 8(a)(3) of the
Act.
(2) Rouege’s allegedly onerous assignment to the shot house
The shot house is a facility that is used for blasting large
metal surfaces that are later to be painted. The blasting in the
shot house is done with metal “shot,” or pellets, as opposed to
sand which is used for blasting in other areas of the plant.
Rouege testified that he, as a fourth-class (lowest) painter-
blaster, had done sand-blasting before the events of this case,
but only for about 2 days. (When he was called as a witness by
Respondent, Rouege also admitted to a few hours of sand-
blasting experience before he was promoted to fourth-class
mechanic; contrary to the arguments of Respondent on brief, I
do not find this admission to be significant for purposes of
credibility resolutions.)
On July 15 Rouege was reassigned from wet dock-3, where
he had been working on the day shift doing touch-up painting,
to the 11 p.m. shift at the shot house. Rouege acknowledged
that several other employees were simultaneously assigned to
the shot house, both to the 3 and 11 p.m. shifts. On the first day
of his reassignment, Rouege did not complete his first shift; he
went home early. At the end of his second shift (as noted above
in the discussion of Respondent’s knowledge of Rouege’s
prounion sympathies), Rouege met with Departmental Superin-
tendent Bourg and asked if he could be assigned to a day job.
Rouege testified that he told Bourg that he was going through a
divorce, that he had custody of his son during the summer, that
he had enrolled his son in a day camp, and that it was more
“convenient” to deliver his son to camp, and pick him up, when
he was assigned to the day shift. Bourg told Rouege that he
would look into the matter. The next day, further according to
Rouege, he again met Bourg and: “Well, Mr. Bourg told me
then there was nothing he could do about it, and if I didn’t go
on nights I wouldn’t have a job on the night shift from 11:00 to
7:00.” Rouege argued to Bourg that he knew another employee
who wanted to trade shifts with him, and Rouege argued to
Bourg that he knew of other employees who had been allowed
to trade shifts. Bourg still refused.
Rouege testified that working in the shot house was: “Dark,
noisy, scary, and very dangerous.” Rouege testified that the
employees with whom he was assigned to work told him that
they had more than 10 years’ experience in the shot house, and,
by the way they worked, Rouege could tell that they were ex-
perienced in what they were doing. Rouege testified that the
other employees complained that he did not know what he was
doing, so, “almost a week” after he was sent to the shot house,
he was ordered to do only cleanup work, and that is what he did
for the remainder of the 2 weeks that he was assigned to the
shot house.
Rouege compared shot-blasting with blasting with sand:

Shot is a rougher—it is like metal almost, little beads
of metal. Sand is just raw sand. It does the same, but the
shot is just a little more dangerous and a little bit more
stingier. The shot could cut you—the sand can cut you
with a force, but the shot could really cut you. . . . When
you get hit with shot you nine out of ten [times] will bleed
severely. . . . Sand you may have brush burns or something
if it is not direct. It is more of a stinging with sand.

About July 30, Rouege was reassigned to wet dock-3 on the
day shift, again doing brush painting.
The General Counsel argues that the assignment of Rouege
to the night shift was onerous to Rouege because of: (1)
Rouege’s family problems and (2) the dangers involved when
an employee who is comparatively inexperienced in blasting
with sand is required to blast with metal shot. The General
Counsel also argues that Rouege was treated disparately be-
cause, before the organizational campaign began, discriminatee
Varnado was permitted to switch shifts with another employee
to avoid going to the night shift, but Bourg did not allow
Rouege to make such a trade.
Contrary to certain testimony by Respondent’s witnesses,
blasting with metal shot is obviously more perilous, and more
onerous, than blasting with sand, especially for an employee
like Rouege who was comparatively inexperienced in all blast-
ing. Nevertheless, other employees were assigned to the Shot
House at the same time that Rouege was assigned there, and
Rouege did not claim at the time that he could not do the work.
Moreover, Rouege testified that the night shift presented prob-
lems only of convenience to his schedule; Varnado, on the
other hand, presented testimony about a threat that was pre-
sented to his family if he were not present at night. (Also, the
one case of Varnado is hardly significant evidence of disparate
treatment of Rouege.) Finally on this issue, it is to be noted that
Rouege was relieved of his blasting duties after less than a
week and assigned only cleanup work. At the end of the second
week, he was reassigned to painting. This treatment by Re-
spondent is not indicative of an intent to harass Rouege because
of his prounion sympathies or any other reason.
I shall therefore recommend dismissal of this allegation of
the complaint.
(3) Rouege’s discharge for absenteeism
Rouege was absent on August 2 and 3, the first 2 days of his
reassignment to the day shift. On direct examination, Rouege
testified that he was absent on August 2 and 3 because there
was an “[a]ir conditioning failure” at his house during the night
of August 1–2. This testimony was false, as Rouege admitted
when he was later called by Respondent as an adverse witness.
On August 2, Rouege called the paint department office
clerk and told her that he would not be in that day because he
had to wait for an air-conditioning mechanic. The clerk told
Rouege to bring a receipt when he returned to work. Rouege
testified that a mechanic did come to his home on August 2 and
did fix the air-conditioning. This testimony was also false, as
Rouege later admitted. After lunchtime on August 2, Rouege
again called the clerk and told her that he would also be absent
AVONDALE INDUSTRIES

1193
on August 3 because “I had to wait on a part.” Again, the clerk
told Rouege to bring a receipt when he returned. While still on
direct examination, Rouege was asked and he testified:

Q. Was it true that you were waiting on a part?
A. No, it wasn’t.

On the morning of August 3, Rouege again called the clerk for
the purpose of “[r]eminding her that I would be out of work
that day.” Again, Rouege was told to bring documentation
when he returned to work. When asked on direct examination if
he recalled what he did on August 3, rather than go to work,
Rouege replied, “Not actually.”
Rouege testified that the air-conditioning mechanic gave him
a receipt that he presented to Respondent when he returned to
work on August 4. Rouege identified the General Counsel’s
Exhibit 248 as that receipt. The receipt is on a form of a firm
named “Barard Refrigeration and Air Conditioning.” It is
signed by one “Barard.” The receipt is dated “8/2/93” at three
different points: (1) the date that the order was received; (2) the
date that the work was promised, and (3) the date the work was
completed. The work description is: “Repaired Freon leak in
liquid line. Replaced entire liquid line tubing. Pulled vacuum
on system, and recharged to proper pressure.” The charge is
recited as $175. While still on direct examination, Rouege testi-
fied that the receipt was erroneous because: “The work that is
on the receipt, that work wasn’t done.”
Rouege testified that he first presented the August 2 receipt
to clerk Plaisance when he appeared at work on August 4.
Rouege testified that he then went to Bourgeois’ office with the
receipt. General Foreman Terry Merna, as well as Bourgeois,
was present, according to Rouege.193 Rouege was asked and he
testified:

Q. And once you got to Mr. Bourgeois’ office could
you tell us, please, what happened?
A. I handed him the receipt. He looked at it, told me to
“get the fuck out” of his office, threw the paper at me, told
Terry Merna to call security.
Q. And what, if anything, did you say or do?
A. I couldn’t do nothing. I was shocked.
Q. And what, if anything, did Mr. Bourgeois say in re-
gard to your employment at Avondale?
A. That I was fired.

On cross-examination Rouege was asked and he testified:

Q. [By Ms. Canny]: Do you recall when it was that
your air conditioning actually broke?
A. Sometime during the night [of August 1-2].
Q. And you called in on August 3 also stating you
would be absent, didn’t you?
A. That is correct.
Q. Do you recall what reason you gave for your ab-
sence on August 3?
A. The same reason, waiting for the mechanic.
Q. And it was when you came back to Avondale after
those two days of absences that you were terminated. Isn’t
that right?
A. That is correct.
Q. Now, the air conditioning repairman came and
fixed your air conditioner on August 2, didn’t he?

193 As I find infra, it was actually Foreman Terry Knight, not Fore-
man Terry Merna, who was also present.
A. Correct.
Q. And you didn’t have any repairman on August 3,
did you?
A. That is correct.
Q. Your air conditioning wasn’t broken on August 3.
Isn’t that right?
A. That is correct.
Q. And you weren’t waiting for a part on August 3.
A. That is correct.
Q. So the receipt that you have from the air condition-
ing repairman for August 2 has the correct date on it,
doesn’t it?
A. That is correct.
Q. I believe you testified that the receipt wasn’t com-
pletely accurate, though, because the description of what
was done that is listed on that receipt isn’t really what was
done.
A. Correct, ma’am.
Q. Do you know why the receipt has listed on it work
that wasn’t actually done?
A. For an excuse, ma’am.
Q. The repairman listed on that receipt, a Mr. Barard . .
. is that a friend of yours?
A. Yes.
Q. And he gave you that receipt so you would have
some paperwork to bring to work. Is that right?
A. Correct.
Q. Even though what he listed on it was not accurate.
A. That is correct.
Q. You don’t have a receipt or paperwork to support
your absence on August 3. Isn’t that right?
A. That is correct, ma’am.
Q. And when you showed up for work you didn’t have
any paperwork for August 3. Isn’t that right?
A. That is correct.
Q. So August 3 would be an unexcused absence. Isn’t
that right?
A. That is true.
Q. [By Ms. Canny]: What did you do on August 3,
1993?
A. I cannot recall, ma’am. I really—I don’t know—
could have cleaned the yard or something. I don’t know.
Q. But the reason that you gave when you called in
was not true. Isn’t that right?
A. Yes. That is what I am saying, ma’am.

When called as an adverse witness on day-149, Rouege admit-
ted that he had air conditioning work done on neither August 2
nor 3, and that the documentation that he presented on August 4
was what his friend Barard gave him to use as an excuse.
I allowed Respondent’s counsel to ask Rouege about other
documentation that he had presented as excuses for absences
for which he was not disciplined even though his other ab-
sences were collateral matters. I did this because of the demon-
strated basis to attack Rouege’s testimony, especially his testi-
mony about his absences. The only other absence for which
Rouege admitted presenting false documentation, and the only
absence about which Rouege was again proved to be lying
under oath, involved an absence of June 28. Rouege acknowl-
edged that on June 28, he called in and stated that he would be
absent for “business,” as the call-in log for that date reflects.
Rouege acknowledged that, when he returned to work on June
29, he submitted as documentation for his absence a piece of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1194
letterhead stationery from the office of a New Orleans lawyer.
The letter is dated June 28, and it states:

To whom it may concern:
This is to inform you that Octave Rouege had an ap-
pointment at our office for legal services on June 28, 1993.

The letter is signed by “Michelle Brown, Secretary.” Respon-
dent’s counsel showed Rouege this letter; then Rouege was
asked and he testified:

Q. Why were you absent?
A. Talking to a lawyer, preparing for a divorce.

Later in the examination as an adverse witness, Rouege was
asked and he testified:

Q. Do you recall testifying a few moments ago that on
June 28, 1993, you went to see a lawyer about a divorce, a
Mr. Donald Pinkston?
A. Yes.
Q. In fact, Mr. Pinkston never was a lawyer for you,
was he? You never had him as a client?
A. No, he didn’t—no, we spoke about it, ma’am. I
didn’t say he handled the case. We—I just spoke to him
about it.
JUDGE EVANS: When you say you spoke to a lawyer,
who did you speak to?
THE WITNESS: I went to the office, and I am not sure
who was the guy name, but I went in his office. I asked
him a price on a divorce and everything. And before I left,
I asked for something to show where I have been, for
work.
JUDGE EVANS: Next question.

Still later, Rouege was again shown the letter that he submitted
to Respondent as documentation for his June 28 absence;
Rouege was asked and he testified:

Q. [By Ms. Canny]: Do you see the signature, Michele
Brown?
A. Right. . . .
Q. Does that refresh your recollection that you had
somebody prepare this for you as an excuse although you
did not speak to the doctor [sic] that day?
A. That is correct, ma’am. . . .
JUDGE EVANS: All right. But . . . who is Michele
Brown?
THE WITNESS: She is their secretary.
JUDGE EVANS: And did you physically go to her of-
fice?
THE WITNESS: I spoke to her.
JUDGE EVANS: How? On the phone?
THE WITNESS: Yes.
JUDGE EVANS: Next question.
[By Ms. Canny]: And she gave you this excuse even
though you were not speaking to a lawyer that day about a
divorce . . . or [for] any other reason.
A. That is correct.

That is, as well as submitting false documentation to Respon-
dent, and lying to Respondent about the reason for his June 28
absence, Rouege lied under oath when he testified that he “went
to the office.” Of course, Rouege also lied under oath by being
specific that, “before I left . . .” the lawyers office, he had re-
ceived the documentation that he later presented to Respondent.
Rouege’s Discharge—Respondent’s Evidence
Bourgeois (vols. 132, 133) testified about his discharge of
Rouege:

He came in to show me his documentation; I looked at
it. It was written up for one day only, so I asked him where
the documentation was for the other day.
He said, “Oh, they put the wrong date on it.”
So I said, Well, if that is the documentation for that
date, where is the documentation for the date he put the
wrong date on?
And he couldn’t explain it to me, and he said he didn’t
have the documentation for that one date; and at that time I
terminated him.

Bourgeois testified that this incident happened “a couple of
days” after August 4, and that on August 4 he had suspended
Rouege indefinitely until he produced documentation for both
August 2 and 3. Respondent’s documents, and certain testi-
mony by Foremen Terry Knight (vol. 115)194 and Richard Sa-
huque (vol. 102), as well as the testimony by Rouege, establish
that Rouege was discharged on August 4, when he first ap-
peared with the (bogus) documentation for his absence of Au-
gust 2.195
Bourgeois further testified: “I terminated him for his previ-
ous citations that he had and for absenteeism. Absenteeism was
the reason he was terminated.” Later, after acknowledging that
Rouege had missed only 2 days after receiving the warning
notices of June 15 (one for absenteeism and another for failing
to call in), Bourgeois was further asked on direct examination
and he testified:

Q. Why is [it] that you terminated Mr. Rouege on the
day that he brought you this paperwork?
A. I terminated him for the previous violations that he
had committed which was the citations he had in his
folder, plus for not bringing in documentation for the days
that he had missed at this time.
Q. But to your knowledge, he had missed two days
prior to his being terminated?
A. Yes.
Q. How come he was terminated after missing two
days following a final warning, rather than three days?
A. He didn’t have to miss three days to be terminated;
he could have been terminated at one day. The reason he
was terminated with two [absences] was because he
missed two [days] in a row.

The ASI-22 (discharge) form that effectuated Rouege’s dis-
charge was signed by Sahuque and Bourg. Entered in the “Ex-
planation for Action” space is: “Excessive absenteeism—
employee has been given (1) one citation for this offense on 6–
099–0993. He has also been verbally [orally] warned several
times by his supervisor, but he continued to miss time.”
At no point did Bourgeois testify that oral warnings that
Rouege may have received played any part in his decision to
discharge Rouege. (Indeed, Bourgeois did not testify that he
knew of any such oral warnings.) Also, at no point did Bour-

194 It was Foreman Terry Knight, not Foreman Terry Merna, who
was present when Bourgeois discharged Rouege.
195 Bourgeois did not dispute Rouege’s testimony about the language
that he used as he told Rouege to leave, and he did not deny throwing
the documentation at Rouege. I found that testimony by Rouege to be
credible.
AVONDALE INDUSTRIES

1195
geois testify that Rouege was discharged because he had sub-
mitted false documentation for some of his absences. (Until
some point after he testified on day-48 of trial, Rouege’s lying
during his call-ins to the paint department, and his submissions
of false documentation for some of his absences, were appar-
ently unknown to anyone but Rouege, his sister, and his
friends.)
Rouege’s Discharge—Conclusions
The ASI-22 (discharge) form that effectuated Rouege’s ter-
mination expressly refers to his June 15 warning notice for
absenteeism as part of the reason for his discharge. Also, refer-
ring to Rouege, Bourgeois testified: “I terminated him for the
previous violations that he had committed which was the cita-
tions he had in his folder, plus for not bringing in documenta-
tion for the days that he had missed at this time [August 2 and
3].” The only warning notices in Rouege’s “folder” that were
less than 12 months old, and the only warning notices to which
Bourgeois referred, were the two warning notices of June 15.
As I have found that both of these warning notices were issued
unlawfully, the discharge which, according to Bourgeois’ tes-
timony, would not have been imposed but for those warning
notices, was similarly unlawful. Moreover, even assuming the
validity of the warning notices upon which Bourgeois partially
premised Rouege’s discharge, Rouege had no worse record
than the employees involved in the 133 comparative cases in
described in Ancar’s case, each of whom had three or more
warning notices for unexcused absences within 12-month peri-
ods from 1990 through the inception of the overt organizational
campaign on March 1, 1993. (The details of the 66 of those
cases which involved employees being issued four or more
absenteeism warning notices in 12-month periods are presented
in App. D of this decision.) In each of those 133 cases, employ-
ees who received a third (or fourth, or greater, up to eight)
warning notice for absenteeism necessarily had two prior warn-
ing notices for absenteeism after which they had two, or more,
absences without being discharged.196
Respondent offered no evidence, and makes no argument on
brief, why all of this evidence should not compel the finding
that Rouege was treated disparately.197 I do so find. Respondent
has not shown why it treated Rouege disparately, and it has
therefore not shown that it would have discharged Rouege even
absent his protected activities. I conclude that, by discharging
Rouege on August 4, Respondent violated Section 8(a)(3) of
the Act.
The Appropriateness of Backpay and Reinstatement
Remedies for Rouege
Respondent first contends that Rouege should be denied all
backpay and reinstatement rights because of his perjury at trial.
I would not, in any way, minimize the fact that Rouege per-
jured himself. Rouege looked directly at me and testified that:
(a) he had “mouth surgery” on June 7, (b) he did receive dental

196 Moreover, one of Rouege’s previous warning notices was for
failure to call in during an absence, not for absenteeism as such. Re-
spondent’s supervisors acknowledge the validity of this distinction
because Rouege’s ASI-22 (discharge) form did not mention the warn-
ing notice for failing to call in as a basis for Rouege’s discharge.
197 Other evidence of disparate treatment of Rouege exists in the
cases of the 883 employees who were permitted to accumulate three or
more warning notices in 12-month periods from 1990 through 1994
without being discharged, as demonstrated previously in the case of
discriminatee Marshall.
“treatment” on June 7, (c) he did not know why the documenta-
tion that he presented to Respondent on June 15 asked that he
be excused on all 3 days of his absences from June 7 through 9,
(d) his son had dental treatment on June 7, 8, and 9, (e) the
“only” reason that he was absent on June 8 was that his air-
conditioning had broken down, and (f) on June 28, he “went” to
a lawyer’s office to get the price of representation in a divorce
proceeding. In addition to these responses to my questions,
Rouege further lied at other points by answering Respondent’s
counsel’s questions and stating that (g) he went to the dentist’s
office on June 7 because he “brought [his] kid to the dentist”
because his son’s filling had fallen out over the weekend, (h) he
“actually” went to the dentist’s office on June 7, and (i) he was
absent on August 2 and 3 because his air-conditioning was, in
fact, broken down. These are nine lies under oath, at least eight
of which (excluding the lie about June 28) directly bear on the
discharge issues in Rouege’s case.
In making its contention that Rouege should be denied all re-
instatement and backpay remedies because of this perjury, Re-
spondent cites only Precision Window Mfg. v. NLRB, 963 F.2d
1105 (8th Cir. 1992), for the proposition that false testimony is
a per se ground for denial of remedy. In Precision Window
Mfg., the Eighth Circuit refused to enforce a Board order of
reinstatement on the dual, independent, grounds that (1) the
alleged discriminatee, one Manso, had perjured himself and (2)
he had also threatened to kill a supervisor after his discharge. I
reject Respondent’s arguments based on Precision Window
Mfg. Aside from the fact that the Board has never held that
perjury is a per se ground for denying reinstatement, in ABF
Freight System, Inc. v. NLRB, 510 U.S. 317 (1994), the Su-
preme Court reviewed Precision Window Mfg., and approved
of it (at the Court’s fn. 7) only on ground that the alleged dis-
criminatee had threatened to kill a supervisor. Moreover, the
Court (510 U.S. at 325) stated categorically:

Notwithstanding our concern about the seriousness of
Manso’s ill-advised decision to repeat under oath his false
excuse for tardiness, we cannot say that the Board’s reme-
dial order in this case was an abuse of its broad discretion
or that it was obligated to adopt a rigid rule that would
foreclose relief in all comparable cases.

The Court thus effectively rejected the Eighth Circuit’s conclu-
sion in Precision Window Mfg. that perjury was a per se ground
for denial of reinstatement and backpay (something of which I
am perfectly confident that Respondent’s counsel knew when
she briefed me on this point).
In ABF Freight System, the Court stated, at 322 fn. 8:

We limited our grant of certiorari to the third question
in the petition: “Does an employee forfeit the remedy of
reinstatement with back pay after the Administrative Law
Judge finds that he purposely testified falsely during the
administrative hearing?”

That is precisely the issue that is presented in Rouege’s case.
Ultimately, the Court rejected the contention that the Board
must always deny remedies to witnesses who perjure them-
selves; the Court held that whether the Board did so was a mat-
ter within the Board’s “broad discretion” in fashioning reme-
dies of the Act. In Rouege’s case, the issue under ABF Freight
System thus becomes: How should the Board exercise its
discretion?
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1196
Although many, if possibly not the majority, of the witnesses
told some under-oath lies during this hearing, there were only
five cases of demonstrated perjury other than Rouege’s: (1) An
employee-applicant testified that he responded to an advertise-
ment by Respondent even though that advertisement had not
been published at the time that he applied for employment. That
witness declined to continue with cross-examination after his
lie was exposed, and the General Counsel ultimately moved to
dismiss the allegations of the complaint in regard to that alleged
discriminatee. (2) Electrical Department Superintendent Robert
Terry, as noted, testified that on June 4, 1993, he met with dis-
criminatee Molaison, accepted Molaison’s confession of mis-
conduct, and discharged Molaison for that confessed miscon-
duct; Terry further testified that Gerdes, his first assistant, had
nothing to do with the discharge of Molaison. As all other wit-
nesses to the discharge agreed, however, Terry had been absent
on June 4, and Gerdes discharged Molaison. (3) In the immedi-
ately preceding case of Ancar, Foreman Erroll Rodrigue falsely
testified that there was a supervisors’ meeting on June 28,
1993, at which time he told Paint Department General Foreman
Clement and Superintendent Bourg that Ancar had been absent
on June 21, as well as June 28, and that he and Foreman Roland
Ongeron had orally warned Ancar that the next time that he was
absent he would be discharged. As the testimonies of Bourg
and Clement make clear, however, no such supervisors’ meet-
ing occurred. (4) Welding Department Foreman Robert Rami-
rez testified that he did not tell an employee that he had been
ordered to “burn” alleged discriminatee Mark Cancienne be-
cause of his union activities; after a tape recording was played
for him, however, Ramirez admitted that he did exactly that. (5)
Pipe Department General Foreman William Fedrick flatly de-
nied that, on June 1, 1994, he did no “paperwork” (or anything
else) as he stood by a ship’s railing and watched alleged dis-
criminatee Eddie Johnson walk about the main yard, wasting
time. Fedrick was then proved to be an under-oath liar by Re-
spondent who, after Fedrick left the stand, produced and of-
fered as its exhibit notes that Fedrick had taken while he stood
and watched Johnson.
If Terry, Rodrigue, Ramirez, and Fedrick are not prosecuted
for perjury, nothing adverse is going to happen to them, or Re-
spondent, or Respondent’s lawyers.198 In ABF Freight Systems,
the Court recognized the inequities of not punishing, or even
rewarding, supervisors for false testimony while punishing
alleged discriminatees for theirs; the Court stated at 325:

Notably, the ALJ refused to credit the testimony of
several ABF witnesses [citations omitted], and the Board
affirmed those credibility resolutions, [citations omitted].
The unfairness of sanctioning Manso while indirectly re-
warding those witnesses’ lack of candor is obvious.

The greater includes the lesser; perjured testimony has a
stronger call for the exercise of Board discretion than does
testimony that is simply discredited.
Employers such as Respondent should know that, if their su-
pervisors commit perjury, they may be required to reinstate and

198 I feel constrained to point out that, although Terry’s perjury
seems to have been purely something of his own doing, I cannot see
how Rodrigue’s perjury could have been anything other than suborned.
It fit altogether too nicely into Respondent’s theory of Ancar’s dis-
charge, it required the maneuvering of Clement’s and Pertuit’s testimo-
nies around the events of June 28, and it was shown to be completely
false by the cross-examinations of Clement and Bourg.
pay backpay to alleged discriminatees who otherwise may re-
ceive neither remedy. If employers such as Respondent do
know this, they will be more forthright about their presentations
of testimony to the Board in discrimination cases. (If the Board
would accordingly invoke its broad discretion to form remedies
under the Act, and not automatically bar alleged discriminatees
from remedy under such circumstances as these, it would not
encourage alleged discriminatees to perjure themselves; an
alleged discriminatee would be unlikely to risk perjury in the
hope that his employer’s supervisors might commit perjury also
when they testify.) Therefore, because of the perjury committed
by supervisors of Respondent, I would not bar Rouege from
reinstatement or backpay solely because of his perjury at trial.
On the other hand, I do conclude that Rouege’s remedy
should be reduced because of the false documentation that he
presented to Respondent while he was employed. Rouege sub-
mitted false documentation to Respondent as excuses for his
absences before his discharge. Respondent does not require
much in the way of documentation (receipts for automobile
parts are even accepted), but it does require the documentation
to be truthful.199 Presumably, any employer would. If an em-
ployer satisfies its burden of establishing that a discriminatee
engaged in unprotected conduct for which the employer would
have discharged any employee, reinstatement is not ordered and
backpay is terminated on the date that the employer first ac-
quired knowledge of the misconduct. I therefore recommend
that the Board find that Rouege’s rights to reinstatement and
backpay ended as of day-149 of trial, February 28, 1996, when
Rouege admitted that he had submitted false documentation for
his absences, or such earlier date that Respondent can establish
at the compliance stage of this proceeding that it had earlier
knowledge that Rouege’s submissions of documentation for his
absences were bogus.
c. Audra Scott
Audra Scott (vols. 61, 62), who was employed as a painter’s
helper (laborer), was issued a warning notice on January 19,
and she was discharged on May 6, 1994.200 The fourth com-
plaint, at paragraphs 23 and 25, respectively, alleges that by
warning and discharging Scott Respondent violated Section
8(a)(3). The General Counsel contends that Respondent warned
and discharged Scott because of her known union activities and
expressions of sympathy which included her wearing prounion
insignia and speaking favorably about the organizational at-
tempt at an employer campaign meeting. Respondent answers
that its supervisors had no knowledge of any union activities or
sympathies of Scott at any relevant time and that Scott was
discharged solely because of excessive absenteeism. The Gen-
eral Counsel replies that Scott was treated disparately because
other employees had worse absenteeism records, but they were
issued lesser, or no, discipline. Ultimately, I find and conclude
that Scott was treated disparately and that her discharge was
unlawful.
Scott testified that she wore a “Union-Yes” sticker in the
middle of the back of her hardhat from about 2 months before
the June 25 Board election until a few weeks afterwards when
she took it off. The sticker remained off Scott’s hardhat until

199 I now reverse my ruling at trial and receive R. Exh. 791(b)(7), an
ASI-22 (discharge) form dated March 1, 1993, pursuant to which an-
other employee was discharged for submission of false documentation.
200 All dates mentioned in Scott’s case are from June 1993 through
May 1994, unless otherwise indicated.
AVONDALE INDUSTRIES

1197
November, at which time Scott replaced it. Further according to
Scott, she then continued to wear the sticker on her hardhat
through the date of her discharge. As I find infra (contrary to
the assertion of Respondent on brief) General Foreman Tommy
Bourgeois made the decision to discharge Scott. Bourgeois
described an unrelated incident involving Scott that occurred in
December. Bourgeois testified (vol. 132) that he could not re-
call if Scott was then wearing prounion insignia. Bourgeois
further testified on cross-examination (vol. 133) that he could
not recall if Scott was wearing her hardhat at the time she was
discharged. This testimony by Bourgeois is less than a convinc-
ing denial by Bourgeois that he knew that Scott wore prounion
insignia from at least November through the date of her dis-
charge. Nor did Scott’s other supervisors present convincing
denials of Scott’s claims about when she wore prounion insig-
nia. I find that Scott did wear prounion insignia on her hardhat
during the periods that she indicated in her testimony.
Scott further testified that during the month before the Board
election she attended an employer campaign meeting that was
conducted by her foreman whose name she thought was “Pi-
erre.” The only paint department supervisor named “Pierre”
was Eldon Pierre, according to a table of organization that was
introduced, and according to the testimony of Lead Foreman
Richard Sahuque (vol. 102). According to Scott, at the em-
ployer campaign meeting:

[Pierre said that] the Union ain’t no good. . . .
I asked him how he know the Union wasn’t no good.
And then he was saying things like about other com-
panies that had the Union; how the Union brought them
down and stuff like that.
I asked him how he know if they never tried the Un-
ion.
And he tells me stuff like he had to come back with the
answer.

Pierre testified (vol. 114), and he gave some testimony about
Scott, but he did not deny this testimony. Respondent contends
that this testimony could not be true because Respondent’s
attendance logs for this period listed Scott on crews other than
Pierre’s. This factor does give me pause, but as stated in Re-
spondent’s brief, at page “Paint-185,” Scott, “was moved be-
tween foremen on a frequent basis,” and the MCRs maintained
by the foremen, not the attendance logs maintained by depart-
mental clericals, were the primary sources of evidence used
throughout the hearing to determine who supervised whom, and
when. Absent any denial by Pierre that Scott made these proun-
ion remarks to him, I find that she did so. (Also, only foremen,
general foremen, and superintendents conducted employer
campaign meetings; if the foreman in question was not Pierre, it
was some other foreman to whom Scott made her prounion
statement.)
As a matter of background for the alleged unfair labor prac-
tices in Scott’s case, it is to be noted that on May 31, 1993, at a
time that she had been temporarily transferred to the electrical
department, Scott was issued a warning notice for “5 unexcused
absences.” Respondent’s supervisors testified, and Respon-
dent’s ASI-22 (discharge) form for Scott states, that this warn-
ing notice was part of the reason for Scott’s ultimate discharge.
(1) Scott’s warning notice for absenteeism
On January 19, Scott received a written warning notice that
was signed by Paint Department Superintendent Bourg. Bourg
checked the box for General offense-1 of the Avondale Em-
ployees’ Guide; to wit: “Unexcused absences of three (3) work-
ing days within a 30-day period.” The warning notice cites as
the days of Scott’s unexcused absences December 2, 7, and 29
and January 18. Scott acknowledged being absent on all of 3
days, and the General Counsel does not contend that these ab-
sences should have been considered excused. The General
Counsel argues, however, that General offense-1 forbids three
unexcused absences if they occur within 30 days and, in this
instance, Scott was warned for absences in a period in excess of
30 days. The General Counsel contends that the Board should
therefore infer that the warning notice was actually issued be-
cause of Scott’s prounion sympathies.
Scott did have three days of unexcused absences between
December 2 and 29, a period of less than 30 days, The warning
notice of January 19 does mention Scott’s unexcused absence
of January 18 as well, but the notice does not depend on that
absence, nor is there any evidence, or reason to believe, that
Scott would ultimately have received different treatment if
January 18 had not been mentioned on the warning notice. (For
all it appears, Scott’s December absences simply went unno-
ticed until she was absent again on January 18.) I shall there-
fore recommend dismissal of this allegation of the complaint.
(2) Scott’s discharge for absenteeism
Scott was absent again on May 5. She called in first to say
that she would be late because her ride was late in picking her
up; then she called in to say that she would not be at work at all
because the ride had not come. Scott testified that she stayed at
home all day, May 5.201 Scott’s absence of this date was re-
corded as unexcused, and, contrary to the arguments of the
General Counsel, there is no probative evidence of why it
should not have been.
As mentioned several times in this decision, May 6 was the
date of Respondent’s annual shareholders’ meeting that was
conducted at Respondent’s administration building. Many
prounion employees made a point of wearing union T-shirts
that day. The Union distributed T-shirts at the gates that morn-
ing. Scott testified that she reported to work on May 6 wearing
a union T-shirt that she received that morning. Her foreman that
day was Carl Mott Jr.
Scott testified that as she approached Mott to sign in, Mott
told her that Bourgeois wanted to see her, and Mott escorted
her to Bourgeois’ office. Bourgeois asked her if she had any
documentation for missing May 5. Scott replied that she did
not. Bourgeois asked Scott to give him her badge, an action that
signified that Scott was discharged. Scott surrendered the badge
and left the premises.
Scott’s Discharge—Respondent’s Evidence
Mott testified that he could not remember whether Scott was
wearing a union T-shirt on the day of her discharge. Bourgeois
denied it. On direct examination, Bourgeois testified that on
May 6, a clerical employee told him that Scott had been absent
on May 5 and she showed him Scott’s prior warning notices.
Bourgeois called Scott and Mott to his office. Bourgeois was
asked and he testified:

201 The Tr. p. 12,854, L. 24, is corrected to change “errors” to “ar-
eas.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1198
Q. After you had asked her about why she was absent
and whether she had any documentation, was anything
else said?
A. Only that I gave—I had looked at her citations she
had, and I determined for the prior citations she had and
for not bringing documentation for the days she had
missed, that Carl Mott should terminate her.

Bourgeois used the plural “days,” but, other than May 5, Scott’s
other absences following her January 19 warning notice had
been recorded as excused. Immediately, Bourgeois made clear
that he did not mean the plural, but that he meant only Scott’s
absence of May 5. Bourgeois was asked and he testified:

Q. Why was she terminated?
THE WITNESS: She was terminated for the citations that
she had accumulated prior to missing that day and for not
having documentation for the day she had missed.

As noted in Rouege’s case, Bourgeois testified that any em-
ployee “could have been terminated at one day” of unexcused
absence after having received two warning notices for absen-
teeism, and Respondent contends that Scott was discharged
because she was absent one time after having received two
warning notices for absenteeism.
Scott’s Discharge—Conclusions
It is undisputed that Scott spoke up for the Union at an em-
ployer campaign meeting. Also, although her supervisors de-
nied, or claimed inability to remember, that Scott wore a “Un-
ion-Yes” sticker on her hardhat, I have found that she did so
during the month before the Board election and from November
through the date of her discharge. Therefore, the General Coun-
sel has also shown that Scott engaged in the open and obvious
union activity of wearing prounion insignia, and I find that all
supervisors who worked around her were aware of her prounion
sympathies at the time of her discharge.
As indicated by the above-quoted testimony of Bourgeois (“I
determined . . .”), he, not Mott, made the decision to discharge
Scott.202 As noted above, discriminatee Marshall testified that,
in April or May 1993, at an employer campaign meeting, Bour-
geois told the employees of the paint department:

that the Union was giving us our union stickers and paper, and
if we get caught wearing the sticker on our hardhat, that we
would be fired, and if we get caught reading the paper, that
we was going to get fired.

As further mentioned in Marshall’s case, although this threat
was made the subject of a specific allegation of the com-
plaint,203 Bourgeois did not deny it. Therefore, as well as show-
ing that Respondent harbored animus toward all prounion em-
ployees, especially prounion employees who wore prounion
insignia, the General Counsel has shown that the very supervi-

202 Respondent’s dismaying attempt to make out Mott, rather than
Bourgeois, to be the decision-maker in Scott’s case is to be compared
with its dismaying attempt to make out Larry Danos, rather than Bour-
geois, to be the decision-maker in the case of discriminatee Marshall,
supra. It is obvious that Respondent made the attempt in Marshall’s
case to bolster its claim that all foremen are completely autonomous
(and that disparate treatment theories may not be used against Respon-
dent for that reason), and it is further obvious that Respondent made the
attempt in Scott’s case because it was Bourgeois, not Mott, who had
threatened such employees as Scott for wearing prounion insignia.
203 Second complaint, par. 20.
sor who discharged Scott had categorically threatened employ-
ees with discharge for wearing prounion insignia such as the
“Union-Yes” sticker that Scott wore. Scott, I further find, did
wear a union T-shirt on May 6, and its prounion insignia would
come within the ambit of Bourgeois’ undenied threat.
I therefore find and conclude that the General Counsel has
presented a prima facie case that Scott was unlawfully dis-
charged, and the burden shifts to Respondent to demonstrate by
a preponderance of the evidence that it would have taken the
same action against Scott even in the absence of her known
protected activities. Respondent’s defenses must therefore be
examined.
On brief, Respondent states: “Ms. Scott was terminated be-
cause of her unexcused absence after two prior citations for
attendance in the previous 12 months, consistent with the rules
as enforced in the Paint Department.” I emphasize the last
phrase because it is most meaningful. By expressing it, Re-
spondent concedes the controlling nature of the issue of consis-
tent enforcement of its absenteeism rules. Respondent however,
did not consistently enforce its absenteeism rules, at least be-
fore the organizational campaign began. As demonstrated in
Ancar’s case, the employees involved in 133 comparative cases
were issued three or more warning notices for unexcused ab-
sences within 12-month periods from 1990 through the incep-
tion of the overt organizational campaign on March 1, 1993.
(The details of the 66 of those cases which involved employees
being issued four or more absenteeism warning notices in 12-
month periods are presented in App. D of this decision.) In each
of those 133 cases (the majority of which involved employees
in the paint department), employees who received a third (or
fourth, or greater, up to eight) warning notice for absenteeism
necessarily had two prior warning notices for absenteeism after
which they had two, or more, absences without being dis-
charged. Respondent offers nothing to explain this disparity. As
I did in the cases of Ancar and Octave Rouege, I find that evi-
dence of disparate treatment to be compelling, and I find the
inference that Scott was unlawfully discharged to be plainly
warranted.
That is, Respondent has failed to show why it allowed a sig-
nificant number of other employees to compile absenteeism
records that were worse than Scott’s, but Scott was discharged
and those other employees were not.204 Because it has failed to
adduce such evidence, Respondent has not shown that it would
have discharged Scott even absent her protected activities. I
therefore conclude that Respondent discharged Scott in viola-
tion of Section 8(a)(3) of the Act.
d. Carlos Henriquez
Carlos Henriquez (vol. 16), who was employed as a sand-
blaster-painter, was issued warning notices on February 1 and
4, and he was discharged on February 9, 1994.205 The second
complaint, at paragraphs 135 and 140, respectively, alleges that
by issuing the warning notices and discharging Henriquez,
Respondent violated Section 8(a)(3). The General Counsel

204 Other evidence of disparate treatment of Scott exists in the cases
of the 883 employees who were permitted to accumulate three or more
warning notices in 12-month periods without being discharged, as
demonstrated previously in the case of discriminatee Marshall.
205 All dates mentioned in Henriquez’ case are from March 1993
through February 1994, unless otherwise indicated. At various points in
the transcript Henriquez’ name is misspelled “Enriquez,” and the tran-
script is corrected.
AVONDALE INDUSTRIES

1199
contends that Respondent warned and discharged Henriquez
because of his known union activities and expressions of sym-
pathy which included his wearing and otherwise displaying
prounion insignia and his telling one supervisor that he in-
tended to vote for the Union in the June 25 Board election.
Respondent denies its supervisors knew of any prounion sym-
pathies that Henriquez may have held at any relevant time. The
February 1 warning notice was issued for absenteeism; the
General Counsel challenges Respondent’s treatment two of the
absences that are covered by that warning notice as unexcused,
but Respondent offers no reason for its including those dates.
The February 4 warning notice was issued for tardiness, and
Respondent answers that Henriquez was, in fact, tardy on the
dates covered by the warning notice. Respondent further an-
swers that Henriquez was discharged solely because he was
tardy on February 9 after having received the tardiness and
absenteeism warning notices. The General Counsel replies that
Henriquez’ warning notice for absenteeism, if not also his
warning notice for tardiness, was unlawfully issued and, there-
fore, his discharge which was partially premised on that warn-
ing notice was also unlawful. The General Counsel also con-
tends that Henriquez was treated disparately because other
employees had worse attendance records without being dis-
charged. Ultimately, I find that Respondent issued the tardiness
warning notice to Henriquez lawfully, but the absenteeism
warning notice was unlawfully issued to Henriquez, and I con-
clude that the discharge which was based, in part, on that warn-
ing notice was also unlawful.
Henriquez testified that, from about a month before the
Board election through the date of his discharge, he wore a
“Union-Yes” sticker in the front-middle of his hardhat, he regu-
larly wore a union button on his shirts,206 and he maintained a
“Union-Yes” bumper sticker on his lunchbox which he kept
with him as he worked. Henriquez’ supervisors denied ever
seeing any prounion insignia that Henriquez wore, or displayed,
but I found Henriquez credible on the point. Henriquez further
testified that on the date of the election he and other employees
on his crew were told by his then-foreman T.—C. Bunch where
to go to vote. Henriquez testified:

He explained to us the way we going to go into the
place, go in and go out, you know, for the vote place. And
then he come to us. He told me, he said, “Who you going
to vote for.” And I tell him, “I vote for the Union.” And
John and Larry [Townsend], he say—also say the same
thing, Union.

(Henriquez’ English is somewhat limited.) Henriquez did not
know John’s last name. Townsend did not testify. There is no
8(a)(1) allegation based on this testimony, but the General
Counsel relies upon it for evidence of knowledge of Henriquez’
prounion sympathies. After Bunch acknowledged on direct
examination (vol. 103) that he knew who Henriquez was, he

206 Respondent contends that the legend of the button would have
been unintelligible to its supervisors because it was in Spanish. The
largest word on the button is “Union.” Also the Union’s round emblem
occupies the “o” in “Union,” and it would be easily recognizable, as
well. Finally, the legend has a large “Si” which most people would
recognize as meaning “Yes,” and it has the same large check mark in a
box, just like the format of the “Union-Yes” stickers that the Union
distributed.
was led directly to a denial of this testimony by Henriquez. I
credit Henriquez.207
(1) Henriquez’ warning notice for absenteeism
As Henriquez testified, and as Respondent’s records reflect,
on January 17 and 18 Henriquez called in to the paint depart-
ment office to report that he would be absent because of illness
in his family. As Respondent’s records further reflect, on Janu-
ary 19, when he returned to work, Henriquez presented to
Foreman Ernie Cantrelle documentation which reflected that he
had, in fact, taken his son and wife to a physician’s office on
January 17 and 18. The legitimacy, and adequacy, of the docu-
mentation that Henriquez presented to Cantrelle is not ques-
tioned by Respondent.208
On February 1, Foreman Cantrelle presented to Henriquez a
warning notice that was signed by Cantrelle and Paint Depart-
ment Superintendent Bourg. No numbered box on the warning
notice is checked, but it appears to be issued under General
offense-1 of the Avondale Employees’ Guide (three unexcused
absences within a 30-day period). In the space for “Date and
Time of Offense,” Bourg entered: November 23, 1993, and
January 11, 17, and 18, 1994. In the “Reason for Warning”
space Bourg entered: “You are hereby notified that you have
been absent an excessive amount of workdays. Should you
continue to do this, immediate disciplinary action will be
taken.” In the space for employee comments, Henriquez wrote
that some his absences were caused because of “bad health in
the family.”
Cantrelle (vol. 103) acknowledged on cross-examination that
he received Henriquez’ documentation for his absences of
January 17 and 18; Cantrelle further acknowledged that when
he issued the warning notice to Henriquez, Henriquez told him
orally that his absences had been caused by illnesses in his
family. Cantrelle further acknowledged reading the comment
that Henriquez made on the warning notice about his family.
Glenn Clement, Cantrelle’s general foreman, also acknowl-
edged (vol. 86) that he reviewed Henriquez’ comment on the
February 1 warning notice before he placed it in Henriquez’
personnel file. Neither Cantrelle nor Clement was asked why he
did not take Henriquez’ documentation, or written or oral
comment, into consideration, or why he did not otherwise re-
view the matter before processing the warning notice to Henri-
quez’ personnel file. Bourg (vols. 81, 82) was not asked by
Respondent why he authorized or signed the February 1 warn-
ing notice that was issued to Henriquez.
In summary, Respondent’s supervisors offered no explana-
tion of why Henriquez’ absences of January 17 and 18 were
made the subject of the February 1 warning notice. Neither on
brief nor reply brief does Respondent argue any theory of valid-
ity for the February 1 warning notice, although the General
Counsel briefed the matter thoroughly in his original brief.

207 Bunch acknowledged on direct examination that he did not attend
any of the TIPS instructional meetings that Respondent held for super-
visors during the preelection period. (Bunch also acknowledged that he
had never heard of the TIPS cards that were distributed at those meet-
ings.)
208 Cantrelle’s general foreman, Clement, attempted evasion on
cross-examination, but he ultimately admitted that a documented ab-
sence to take a family member to a doctor is considered an excused
absence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1200
Henriquez’ Warning Notice for Absenteeism—Conclusions
Henriquez told at least one supervisor, Bunch, that he would
vote for the Union in the Board election. Moreover, Henriquez
engaged in the open and obvious union activity of wearing, and
displaying on his lunchbox, prounion insignia. Any supervisor
who worked around Henriquez would have seen that display of
prounion sympathies. Respondent’s animus toward employees
who maintained prounion sympathies, and Respondent’s ani-
mus especially toward those employees who displayed proun-
ion insignia, is established throughout this decision. Therefore,
the General Counsel has presented a prima facie case that the
February 1 warning notice was issued unlawfully to Henriquez,
and Respondent is required to demonstrate that the warning
notice would have been issued to Henriquez even absent his
protected activities. Respondent, however, has not done so (or
even attempted to do so). Accordingly, I find and conclude that
by issuing the February 1 warning notice to Henriquez, Re-
spondent violated Section 8(a)(3).209
(2) Henriquez’ warning notice and discharge for tardiness
Henriquez testified that on the morning of February 2, and
on the mornings of most of the 30 days before February 2, he
arrived at work early by a margin of 2 minutes or more. On
February 2, as he was approaching his work area (on the
ground), he was approached by General Foreman Glenn Clem-
ent. According to Henriquez, “And he came to me, and he say,
`You are late; don’t let it happen again.’ And I said nothing. I
just went back to work.”
Henriquez further testified that he was on time for work on
February 3. On February 4,210 Cantrelle issued another warning
notice to Henriquez, dated February 3, the warning notice is
signed by Bourg and Cantrelle. The box for the general offense-
2 under the Avondale Employees’ Guide (“Tardiness three (3)
times within a 30-day period”) is checked. In the space for
“Date and Time of Offense,” “(several)” was entered. In the
“Reason for Warning” space, was entered the following: “You
are hereby notified that you have been tardy three (3) times
within a 30-day period. Should you continue to do this, imme-
diate disciplinary action will be taken. Final Warning.” Henri-
quez testified that, when Cantrelle gave him the warning notice,
he said only “Carlos, you got a citation.”
Henriquez testified that on February 9, the day of his dis-
charge, he punched in, and he was “about 15 feet” from the
point at which he was to sign in on Cantrelle’s MCR, when the
7 a.m. whistle blew. Clement was present with Cantrelle as
Henriquez approached the sign-in area. According to Henri-
quez: “And Glenn Clement told me, ‘You are late; you are
fired.’ I didn’t say nothing.” Henriquez denied being late at any
time from February 4 through 8.
The MCRs have a column that is designated for “Late Arri-
val.” When an employee is to be docked for being late, the
foreman enters the time that an employee should have started
and the time that the employee actually did start. Respondent
offered into evidence Henriquez’ foremen’s MCRs covering the

209 The General Counsel further argues on brief that the February 1
warning notice was invalid because, contrary to the substance of gen-
eral offense-1, it covers a period of greater than 30 days, as well as
including two excused absences. This contention is also valid, and it
fortifies my conclusions here.
210 Henriquez testified that he received his second warning notice on
February 3, but Cantrelle testified that it was February 4, and that ap-
pears to be the case.
period from January 14 through February 9. On the MCR for
February 9, Henriquez is recorded as being discharged. On
none of the remainder is Henriquez recorded as being a “Late
Arrival,” and he was paid for 8 hours on each day, unless he
was absent (January 17, 18, and 31) or left early (February
1).211
Henriquez’ Warning Notice and Discharge for Tardiness—
Respondent’s Evidence212
Cantrelle runs crews of sandblasters and touchup painters.
Cantrelle testified that by 7 a.m., employees on his crew should
have (1) punched in at a timeclock, (2) presented themselves at
the point where he maintains his MCRs,213 (3) signed in, (4)
received their assignments, (5) gathered their tools, and (6) at
least have begun walking toward their assigned jobs, if not
already be there. Cantrelle testified that he begins assigning
jobs at 6:30.214 Cantrelle described his method of assigning
work to sandblasters as:

Well, it is first-come, first-served. If you come to me at
quarter to 7, or at 6:30 a.m., I am going to assign you my
hardest job, because I need to make sure that that job gets
done today. If you wait till the last one, I might not need a
blaster that day. I might have—some days, I only use
seven; somedays, six; some days, only three.
Whoever comes up to me first that morning gets as-
signed a blasting job, providing he is a blaster.

Cantrelle testified that, beginning on the morning of January 24
(after Henriquez claimed that he had a back injury), Henriquez
began a practice of standing 20 to 25 feet away from the point
at which Cantrelle maintained his MCR and waiting until the 7
a.m. whistle blew. As the whistle started to blow, Henriquez
would begin walking to Cantrelle and present himself
“[e]xactly at 7 o’clock when the whistle quit blowing.”
Cantrelle further testified that: “At 7:00 o’clock, he is supposed
to have his shield, his hood in his hand, and walking to his job-
site.” (Blasters wear hoods, as well as shields.) Cantrelle testi-
fied that Henriquez did this on six occasions beginning on
January 24 through February 8. I number these occasions as I
narrate Cantrelle’s testimony:

(1) Cantrelle testified that on January 24, Henriquez
stood near a food-vendors stand until the 7:00 whistle be-
gan blowing, and he reached the MCR area as the whistle
stopped blowing. After being directed to his MCR of
January 24, Cantrelle was asked and he testified:

Q. [By Ms. Canny]: What is Column 20 for on the
MCR?

211 Henriquez was not disciplined for his absence of January 31 or
his leaving early on February 1.
212 It is first to be noted that, as opposed to the case of Henriquez’
warning notice of February 1, Respondent presented detailed testimony
about Henriquez’ warning notice of February 4 and his discharge of
February 9.
213 There are over 100 timeclocks in the yard, and, especially for
those employees who were not working on ships that are in the water,
timeclocks are usually located close to the areas where foremen main-
tain their MCRs for signing in.
214 According to Marybeth Arnold (vol. 18), Respondent’s supervi-
sor of timekeeping, the pay of employees who are to begin work at 7
a.m. begins at 7 a.m., even if they punch in earlier; if they punch in
after 7 a.m., they are paid from the point that they punch in, or the time
that they sign in on an MCR, whichever is later.
AVONDALE INDUSTRIES

1201
A. Column 20 is the shift start—the time of the shift
and the shift start.
Q. And what do you use that column for?
A. For when somebody is late.
Q. Directing your attention to 519(g), why isn’t there
anything written in that column if Mr. Henriquez was
tardy [on January 24]?
A. He was tardy; he wasn’t late.
Q. What time did he arrive at the work area?
A. Exactly 7:00 o’clock.
Q. Why was he tardy? . . .
THE WITNESS: Because he wasn’t ready for work at
7:00 o’clock.

Cantrelle testified that he told Henriquez, “You have to be here
on time, ready to go to work.” (2) Cantrelle testified that Henri-
quez did the same thing on January 25, and Cantrelle told him:
“Carlos, the job requires you to be here at 7:00 o’clock ready to
go to work, not stand over there at 7:00 o’clock and wait for
everybody to get assigned a job and then come over to me. The
job requires you here. At 7:00 o’clock, you are supposed to be
walking with your equipment to the job.” (3) Cantrelle further
testified that Henriquez did the same thing on January 28;
Cantrelle could not remember if he repeated his instructions to
Henriquez on that date. (4) Cantrelle further testified that on
February 2, Henriquez did: “The same thing. He would stand
off 25—20 to 25 feet. He would not approach me until the 7:00
o’clock whistle would blow.” Further according to Cantrelle,
Clement was present on February 2 when Henriquez again
presented himself “tardy.” According to Cantrelle:

[W]hen Carlos stood off and again and didn’t come until 7:00
o’clock or right after 7:00, he [Clement] verbally warned him
[Henriquez] and told him that this was the final warning, that
he [Clement] was going to write him up. If it happened again,
he was going to get terminated.

(5) Cantrelle testified that on February 4, Henriquez again stood
away from the sign-in point until the 7 a.m. whistle began blowing.
Later in the day, he gave to Henriquez the warning notice quoted
above which had been prepared, and dated, February 3. Cantrelle
testified that on February 4, as he presented the warning notice, he
told Henriquez that: “this was his last chance.” (6) Cantrelle further
testified that on the morning of February 8, Henriquez again stood
away from the sign-in point until the 7 a.m. whistle began blowing.
Cantrelle did not testify that he said anything about the matter to
Henriquez that day.
Finally, Cantrelle further testified that on February 9, Henri-
quez arrived “like seven or eight minutes after the 7:00 whis-
tle.” Foremen Errol Rodrigue and Jay Pertuit (who signed in
their crews at the same point on the ground) were also present.
Clement, also, was present as Henriquez approached. Cantrelle
testified that Clement terminated Henriquez after saying, “You
remember what I told you what was going to happen if you
come in late one more time?”
Henriquez’ Warning Notice and Discharge for
Tardiness—Conclusions
As the last quote indicates, Cantrelle was not always consis-
tent with his distinction between the terms “late” and “tardy.”
Other supervisors testified that there was no difference in the
terms, but the articulated distinction appears to be something
more that just Cantrelle’s own creation. As evidence of dispa-
rate treatment that I will consider infra, the General Counsel
placed in evidence the warning-notice history of several em-
ployees who, without being discharged, compiled worse tardi-
ness and absenteeism records than Henriquez. As quoted be-
low, two of those warning notices describe conduct that seems
essentially identical to that ascribed to Henriquez, and in each
of those cases, the employee is cited for a violation of general
offense-2 under the Avondale Employees’ Guide. Even if the
tardiness/lateness distinction were only Cantrelle’s creation,
however, the issue before the Board is whether Henriquez was
unlawfully disciplined on February 4, no matter what wording
was used on the warning notice (or how Cantrelle articulated
the offenses at trial).
Henriquez was not called in rebuttal to deny that, although
he punched in by 7 a.m., he did not sign the MCRs by that hour
on January 24, 25, and 28 and February 2, the four dates that
are the apparent subject of the warning notice that was drafted
on February 3 and issued to Henriquez on February 4. I credit
Cantrelle’s testimony in this regard. The General Counsel has
not shown that other employees were allowed to delay signing
in as Henriquez did and not be disciplined. Thus, there is no
element of discrimination involved in the warning notice of
February 4, and I shall therefore recommend dismissal of this
allegation of the complaint.
I credit Cantrelle’s testimony (which was corroborated by
Pertuit and Rodrigue, as well as Clement) that Henriquez did
not come close to signing the MCR by 7 a.m. on February 9. I
further accept Respondent’s contention that Henriquez was
therefore again “late.” The issue under the Act therefore be-
comes: Why was Henriquez discharged?
When Clement was on direct examination (vol. 86), Respon-
dent did not ask him why he discharged Henriquez. On cross-
examination, however, Clement was asked and he testified:

Q. And could you tell us, please, why you fired Mr.
Henriquez?
A. For repeatedly coming to work late.
Q. And did you consider anything else?
A. His past record.

. . . .

Q. So you knew on the day you fired him that he had
at least one written citation [for tardiness], and also there
was a verbal warning.
A. And I knew he had a citation written up for missing
time.

This “missing time” warning notice was, of course, the Febru-
ary 1 warning notice which, as I have previously concluded,
was issued in violation of Section 8(a)(3). According to Clem-
ent’s testimony, however, the unlawfully issued warning notice
of February 1 was an indispensable part of the putative reason
for Henriquez’ discharge. Henriquez’ discharge being based, in
part, on an unlawfully issued warning notice is, itself, therefore
unlawful.
Even if Henriquez’ February 1 warning notice for absentee-
ism, as well as his February 4 warning notice for tardiness, was
issued lawfully, the General Counsel has shown that, within
various 12-month periods from 1990 through 1994, the follow-
ing employees compiled worse records of tardiness, or absen-
teeism and tardiness combined; still, they were not discharged.
Almost all of the following employees were issued one or more
warning notices for tardiness after already having been issued
at least one warning notice for absenteeism and one warning
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1202
notice for tardiness (and many of those preceding warning no-
tices were marked “Final”). That is, these employees, unlike
Henriquez, were not discharged on their first day of tardiness
after having been issued two warning notices; they were al-
lowed to compile 3 (or more) days of tardiness and simply is-
sued another warning notice. (It is also to be noted that several
of the following employees were issued one warning notice for
more days of tardiness than all of those accumulated by Henri-
quez. That is, any set of three dates of tardiness in a 30-day
period by the following employees could have warranted a
separate warning notice, if not discharge, under General of-
fense-2 of the Avondale Employees’ Guide. Therefore, some of
these employees had more tardiness even than that indicated by
a simple count of their warning notices. And, again, the follow-
ing employees had more tardiness than Henriquez without be-
ing discharged.)

10. On June 21, 1990, Electrical Department employee
Forres Collins, badge 9660, was issued a warning notice
that states that on June 21: “Employee was not on the job
ready to work at 12:30. (Lunch end) He was on the ground
waiting for the elevator when the whistle blew.” The box
for “other” major offense is checked. On June 28, 1990,
Collins was issued a warning notice for four days of tardi-
ness in that month. On July 25, 1990, Collins was issued a
warning notice for unexcused absences of five working
days within a 30-day period.
11. On September 20, 1990, Collins was issued a
warning notice for five additional absences during a 30-
day period. On November 13, 1990, Collins was issued a
warning notice for leaving the work place without permis-
sion.
12. On November 26, 1990, Collins was issued a
warning notice for being late four times during the month
of November. This was Collins’ sixth warning notice in
the 12-month period that began June 21, 1990, and it was
his fourth during that period for being absent or tardy.
13. On September 11, 1991, Collins was issued an-
other warning notice for tardiness. This was Collins’
fourth warning notice in the 12-month period that began
on September 20, 1990, and his second for tardiness fol-
lowing his warning notice for absenteeism.
14. On September 23, 1991, Collins was issued a
warning notice for six unexcused absences during the
month of September. The warning notice concludes “Last
And Final Warning Notice.” This was Collins’ fourth
warning notice in the 12-month period that began on No-
vember 13, 1990, and his third during that period for ab-
senteeism or tardiness.
15. On April 10, 1992, Collins was issued a warning
notice for being absent on April 9, 10, 14 and 15. This was
Collins’ third warning notice for tardiness during the 12-
month period that began on September 11, 1991.
16. In the period from November 20, 1990, through
March 22, 1991, Paint Department employee Doug Drago,
badge 2071, was issued three warning notices for wasting
time and intentional negligence. On April 18, 1991, Drago
was issued a warning notice for unexcused absences on
four dates during a 30-day period. On May 1, Drago was
issued a warning notice for being tardy on April 8, 18 and
23. And on May 3, Drago was issued a warning notice for
being tardy on April 26, 29 and 30 and May 1, 2 and 3.
(That is, because Drago assuredly was not discharged on
May 2, he was allowed eight days of being tardy, five of
which were consecutive, after having been issued a warn-
ing notice for absenteeism.)
17. On December 11, 1990, Electrical Department em-
ployee Reginald Beaco, badge 10550, was issued a warn-
ing notice for tardiness on six days in the preceding
month. (Obviously, under General offense-2 of the Avon-
dale Employees’ Guide, Beaco could have been issued two
warning notices for these six tardy arrivals, but he was
not.) On March 13, 1991, Beaco was issued a second
warning notice for tardiness, this time for three tardy arri-
vals in the preceding 30 days. On March 27, 1991, Beaco
was issued a third warning notice for three tardy arrivals.
The warning notice states in part: “Mr. Beaco was late
three times (3-25, 3-26, 3-27, 1991) since he received his
last warning. Final warning.”
18. On May 27, 1991, despite his prior express final
warning, Beaco was issued his fourth warning notice for
tardiness on eight more days; to wit: May 1, 3, 7, 8, 17, 21,
22 and 24, 1991. (Again, this string of tardy arrivals could
have been the subject of multiple warning notices.)
19. On June 7, 1991, Beaco was issued a warning no-
tice for absenteeism; absences of May 13, 14 and 31 were
noted; also the warning notice states: “He was also late on
June 7, 1991.”
20. On June 18, 1991, Beaco was issued a warning no-
tice for Major offense-1 under the Avondale Employees’
Guide for absences on three consecutive working days.
The notice states: “Mr. Beaco was absent on June 12, 13
and 14, 1991. Mr. Beaco received a written warning on
March 13, May 27, June 7, and June 18, 1991. Fourth
warning.” Actually, this warning notice was Beaco’s sixth
warning notice in the 12-month period that began on De-
cember 11, 1990.
21. On January 10, 1992, Beaco was issued another
warning notice for tardiness on three consecutive days; to
wit: January 8, 9 and 10. This was Beaco’s sixth warning
for absenteeism or tardiness in the twelve-month period
which began on March 13, 1991, as well as his second
Major offense warning notice under the Avondale Em-
ployees’ Guide.
22. On March 2, 1991, Electrical Department em-
ployee Michael Simmons was issued a warning notice be-
cause: “Employee was tardy 5 days in a week.” The notice
concludes: “Final warning.” On March 22, 1991, Simmons
was issued another warning notice for tardiness on that
day. The notice concludes: “Recommend termination.”
Simmons was not discharged, a fact proved by another
warning notice that he was issued on July 15, 1991; that
notice states: “Mr. Simmons was absent on June 17 and
July 15; he was late on June 20, and July 11. He went
home early on June 28, 1991.”
23. On April 26, 1991, Paint Department employee
Dematrice Hudson, badge 3870, was issued a warning no-
tice for being tardy four days during a 30-day period. On
October 23, 1991, Hudson was issued another warning no-
tice for five absences in the month of October. On No-
vember 6, 1991, Hudson was issued another warning no-
tice for tardiness on that day. On December 6, 1991, Hud-
son was issued another warning notice for four dates of
absenteeism within a 30-day period. Then on December 6,
AVONDALE INDUSTRIES

1203
1991, Hudson was issued another warning for tardiness on
that date.
24. On May 1, 1991, Electrical Department employee
Julius Holmes was issued a warning notice for tardiness on
April 11, 18 and 25, 1991. On June 14, 1991, Holmes was
issued a warning notice stating that he had been tardy on
May 20, 24, 28, 30 and 31, 1991. The warning notice
states: “Mr. Homes was given a warning for missing time
on April 30, 1991. Second warning.” Then, on July 19,
1991, Holmes was issued a third warning notice for being
tardy on June 18 and 19, and July 2. The warning notice
concludes: “FINAL WARNING,” plainly indicating that
he was still not discharged.
25. On June 27, 1991, Electrical Department employee
Anthony Robinson, badge 480, was issued a warning no-
tice for being tardy on May 28 and June 5, 20, 1991. On
July 23, 1991, Robinson was issued another warning no-
tice for being tardy on July 1, 10, 18 and 19, 1991. On
August 28, Robinson was issued a warning notice for the
major offense of falsifying his time records. On September
13, Robinson was issued another warning notice for quit-
ting work early. On December 5, 1991, Robinson was is-
sued a third warning notice for being tardy on November
20 and December 3 and 5, 1991. Robinson was still not
discharge as evidenced by the fact that he was issued
warning notices for failure to punch out properly, insubor-
dination and intentional negligence on February 13, 1991,
January 22 and June 9, 1992, respectively.
26. On June 15, 1992, Robinson also was issued a
fourth warning notice for tardiness and absenteeism.
27. On November 21, 1991, Machinery Department
employee K. Jones, badge 11933, was issued a warning
notice for being late eight times in October and six times,
then to date, in November. The warning notice concludes:
“This employee was verbally warned prior to this warn-
ing.” (Of course, these days of tardiness could have re-
sulted in multiple warning notices, but they did not.)
28. On December 18, 1991, Paint Department badge
5690 (name not legible) was issued a warning notice for
tardiness; the notice states: “Employee reported to work
after the 7 a.m. whistles starting work.” On January 6,
1992, employee 5690 was issued a warning notice for
three absences within a seven-day period. On January 14,
1992 the employee was issued a second warning notice for
tardiness; the notice states: “Employee has repeatedly re-
ported to the work area after the 7 a.m whistle. You are to
be in your work area and working by 7 a.m.”
29. On March 13, 1992, badge 5690 was issued a
warning notice for four unexcused absences during the
preceding 30 days.
30. On July 30, 1992, badge 5690, was issued a warn-
ing notice for unexcused absences on five dates during the
previous month. The warning notice concludes: “Violation
of any other company rules or regulations will result in
your termination. Final warning.”
31. On August 10, 1992, despite his prior, express,
categorical, final warning badge 5690 was issued a third
warning notice for tardiness on four dates during the pre-
ceding month. The warning notice concludes: “Continued
absences or tardiness may result in termination. Final
warning.”
32. On January 15, 1992, Operators Department em-
ployee Sterling Landry, badge 739, was issued one warn-
ing notice for being tardy 11 times from December 5,
1991, through January 15, 1992. (Of course, the first nine
of these could have been the basis of three warning notices
for tardiness under the Avondale Employees’ Guide.)
33. On March 5, 1992, Operators Department em-
ployee Bert Menge, badge 1700, was issued a warning no-
tice stating: “This employee is habitually late for his shift.
He was late at least 12 days in January and again in Febru-
ary he was late on 12 separate occasions. This is your final
warning!” (Of course, these 24 days of tardiness could
have been the subjects of at least eight warning notices
under the Avondale Employees’ Guide, if not discharge.)
34. On November 16, 1992, Shipfitting Department
employee Chris Carley was issued one warning notice for
unexcused absences on November 11 and 12, for being
one hour late on November 13, and for being late again on
November 16. The warning notice concludes: “Final warn-
ing.” On November 23, 1992, Carley was issued another
warning notice for being late again on that day. On No-
vember 25, Carley was issued another warning notice for
three unexcused absences within a 30-day period. The no-
tice concludes, again, “Final Warning.”
35. On November 24, 1992, Sheet Metal Department
employee Ronnie Sandifer, badge 2920, was issued a
warning notice for being absent on three days in that
month. On June 1, 1993, Sandifer was issued a warning
notice for being tardy three days during the preceding 30
days. On July 16, 1993, Sandifer was issued a warning no-
tice for wasting time, loitering or leaving the work place.
The notice concludes: “Final warning.” On August 30,
1993, however, Sandifer was issued still another warning
notice for tardiness on three days that month.
36. On October 29, 1993, Sandifer was issued a warn-
ing notice for being absent four days in October. Also, on
November 19, 1993, Sandifer was issued a warning notice
for: “Wasting time, loitering or leaving the work place
without permission. Employee has [been] observed by
Jesse Caston just walking around without permission.
Prior warning issued on same on 7/16/93. Has had several
verbal warnings also. Final warning.” As well as being
Sandifer’s sixth warning notice in the 12-month period
that began on November 24, 1992, Sandifer by this point
had accumulated two warning notices for tardiness as well
as two warning notices for absenteeism.
37. On December 10, 1993, Sandifer was issued an-
other warning notice for being tardy three days during the
preceding 30-day period. The warning notice recites.
“Prior warnings issued on 10/29/93 and 8/30/93. FINAL
WARNING.” As well as being Sandifer’s sixth warning
notice since his warning notice of June 1, 1993, this was
Sandifer’s third warning notice for tardiness during that
six-month period.
38. On April 25, 1994, Sandifer was issued another
warning notice for three unexcused absences in a 30-day
period. This was Sandifer’s seventh warning notice in the
period that began June 1, 1993, and it was his fifth warn-
ing notice for absenteeism or tardiness within that 12-
month period.
39. On June 29, 1994, Sandifer was issued another
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1204
warning notice for three days of tardiness in a 30-day pe-
riod. This was Sandifer’s seventh warning notice in the
12-month period beginning July 16, 1993, and it was his
fourth warning notice for tardiness or absenteeism in that
period.
40. On December 11, 1992, Electrical Department em-
ployee Hardon Palmer was issued a warning notice for six
unexcused absences from November 20 through Decem-
ber 11 of that year. On December 14, 1992, Palmer was is-
sued another warning notice for being tardy five times in
the period from November 16 through December 3, 1992.
Then on February 10, 1993, Palmer was issued another
warning notice for being tardy on February 3, 4 and 10,
1993. The warning notice concludes: “Final notice,”
plainly implying that Palmer was still not discharged.
41. On January 12, 1993, Pipe Department employee
Ansley Smith was issued a warning notice for being tardy
four times in the month of January. His prior warning no-
tices do not appear of record, but this warning notice
states: “Unexcused tardiness. This is your third citation
this week. Next violation of any kind will result in termi-
nation.” On February 25, 1993, however, Smith was is-
sued a warning notice for eight absences in the month of
February. The warning notice concludes: “If employee
misses any more time within 30 days will result in termi-
nation.”
42. On August 25, 1993, CDC Department employee
Jane Kennedy, badge 188, was issued a warning notice for
being tardy three times within a 30-day period. On Sep-
tember 29, 1993, Kennedy was issued a second warning
notice for being tardy three times in thirty days. On Octo-
ber 1, 1993, Kennedy was issued a third warning notice
for tardiness because she return late from lunch. The no-
tice concludes: “Final warning on tardiness.”

For Henriquez’ case, of course, the most striking of these
comparisons is the case of paint department badge 5690 (num-
bers 19—22, above). That employee had one warning notice for
tardiness and one for absences, just like Henriquez; then he was
issued a warning notice for “repeatedly” signing in late; then he
was issued two more absenteeism warning notices, and one
more tardiness warning notice, without being discharged. (In
making these comparisons, again, it is not to be forgotten that I
have held that Henriquez’ absenteeism warning notice was
issued unlawfully; Henriquez has an even better comparative
attendance record when only his one prior, lawful warning
notice is considered.)
Respondent does not suggest on brief (or reply brief) why
this significant evidence of disparate treatment should not de-
termine Henriquez’ case. I find that this evidence would deter-
mine Henriquez’ case, if the invalid nature of the February 1
warning notice does not, of itself, do so.215 That is, Respondent
has not shown that it would have discharged Henriquez even in
the absence of his protected activities. I therefore conclude that
Respondent discharged Henriquez in violation of Section
8(a)(3).

215 Other evidence of disparate treatment of Henriquez exists in the
cases of the 883 employees who were permitted to accumulate three or
more warning notices in 12-month periods from 1990 through 1994
without being discharged, as demonstrated previously in the case of
discriminatee Marshall.
e. Marie Joseph’s discharge for absenteeism
Marie Joseph (vol. 36), a laborer in the Cleanup-During-
Construction (CDC) Department, was discharged on July 20,
1993. The second complaint, at paragraph 103, alleges that by
discharging Joseph Respondent violated Section 8(a)(3) of the
Act. The General Counsel contends that Respondent discharged
Joseph because of her known union activities and expressions
of sympathy which included her displaying prounion insignia
and responding positively to an interrogation that was con-
ducted in violation of Section 8(a)(1). Respondent denies that
the interrogation occurred. Respondent further answers that its
supervisors had no knowledge of any union activities or sympa-
thies of Joseph at any relevant time and that Joseph was dis-
charged solely for excessive absenteeism. The General Counsel
replies that Joseph was treated disparately because other em-
ployees had worse absenteeism records but they were issued
lesser, or no, discipline. Ultimately, I find and conclude that
Joseph was treated disparately and that her discharge was un-
lawful.
Joseph testified that she worked under the supervision of
Foremen Joe Cardella and E.—B. Nealy. Respondent stipulated
that Cardella is a supervisor within Section 2(11) of the Act,
but there is an issue about the status of Nealy. The second com-
plaint alleges that “E.—B. Nealy Jr.” is a supervisor, but Re-
spondent denies that “E.—B. Nealy Jr.” exists. On day-31 of
trial, when called by the General Counsel as an adverse wit-
ness, CDC Superintendent Leroy Cortez acknowledged a 1993
departmental table of organization that lists “E. Nealy” as a
foreman. Cortez testified that the listed “Nealy”216 was a fore-
man in 1993, and that Nealy was in charge of “[m]any different
jobs.” Cortez acknowledged that, as such a foreman, Nealy
“had authority to use his independent discretion to assign
work.” Later in the hearing, when called by Respondent on
day-96, Cortez also mentioned Nealy (on cross-examination) as
one of the foremen that he had to move in the spring or summer
of 1993 because of the needs of a job. In denying that “E.—B.
Nealy Jr.” exists, Respondent is apparently relying on the fact
that the General Counsel did not establish that Nealy was a
“Junior,” as stated in the complaint. Cortez testified on day-96,
however, that E.—B. Nealy was the only “E. Nealy,” in the
CDC department. I find and conclude that at all relevant times,
E.—B. Nealy was a supervisor within Section 2(11) of the Act.
Joseph testified that she wore a “Union-Yes” sticker on her
hardhat from April through the date of her discharge. Joseph
further testified that during the week before the June 25 Board
election, Foreman Nealy spoke to her outside a restroom in the
yard. According to Joseph:

Nealy asked me what I think about the Union, and I
told him that I hope the Union can get in; I was going to
vote yes.
He said it was up to me.

Based on this testimony by Joseph, paragraph 42 of the second
complaint alleges that Respondent, by Nealy, interrogated its
employees.217 Respondent did not call Nealy to testify, and this

216 In vol. 31 of the transcript, Nealy’s name is misspelled “Neely,”
and it is accordingly corrected.
217 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against Joseph, as well as the
charge in Case 15–CA–12171–1.
AVONDALE INDUSTRIES

1205
testimony by Joseph stands undenied. Joseph’s testimony was
credible, and I find and conclude that Respondent, by E.—B.
Nealy, on or about June 18, 1993, interrogated employees about
their union sympathies.
On June 29, Joseph was issued a warning notice by Cardella;
the notice cites absences on June 2, 8, and 17, and it states:
“Absence of 3 or more days in a 30-day period. Failure to call
in during your absence on 6/17. Violation of any other Com-
pany rules or regulations will result in your termination. Final
Warning.” The issuance of this warning notice is not alleged to
be a violation of the Act.
On July 19, Joseph was absent again. As Respondent’s call-
in log for July 19 reflects, Joseph called in and stated that she
would be absent because her aunt was “missing.” Joseph testi-
fied that, on July 20, when she reported to work, she was met
by Cortez. Cortez told Joseph that she was discharged, but he
did not tell her why, according to Joseph. Joseph testified that
her first notice of the reason for her discharge was her receipt
of a copy of Respondent’s submission to the Louisiana De-
partment of Labor which stated that Respondent would contest
any application for benefits by Joseph on the ground of:
“Chronic or excessive absenteeism.”
Joseph’s Discharge—Respondent’s Evidence
Cardella (vol. 150) testified that, when he gave the June 29
warning notice to Joseph, he told her that she “could” (not
“would”) be terminated on the occasion of her next absence.
Cardella coded Joseph as discharged (code “04”) on his July 19
MCR.
Cortez (vol. 96) testified that he was near his clerk’s desk
when Joseph called in on July 19. The clerk told him that Jo-
seph was on the line stating that she could not come to work
because her aunt was missing. Cortez told the clerk to tell Jo-
seph to bring in documentation such as a police report, and the
clerk did so. Cortez testified that he then reviewed Joseph’s
personnel file which had, as well as the above-quoted absentee-
ism warning notice dated June 29, two other warning notices; to
wit: a March 21, 1993 warning notice for failing to call in on
the day of one absence and an August 11, 1992 warning notice
for three unexcused absences in a 30-day period (general of-
fense-1 of the Avondale Employees’ Guide). Cortez testified
that he then told his clerk to type up an ASI-22 (discharge)
form for Joseph because he did not believe that Joseph would
bring any documentation when she returned from her July 19
absence; Cortez told the clerk that the ASI-22 (discharge) form
would be processed if Joseph did, in fact, appear the next day
without documentation. Cortez further testified that he told the
clerk to inform Joseph’s foreman at the time, Cardella, of his
decision.
Cortez further testified that when Joseph appeared on July
20, without documentation: “I just let the employee know that
because of her failure to bring in documentation the way she
was, that she was being terminated for excessive absenteeism.”
Cortez further testified that he then signed the ASI-22 (dis-
charge) form and had it processed through to the human re-
sources department to effectuate Joseph’s discharge. As intro-
duced by Respondent, the form states “7–0919–0993” in the
space for “Date Prepared.” In the space for “Effective Date” of
the discharge, the form also states: “7–0919–0993.” In the
space for “Explanation for Action” the form states:

Employee has been terminated for absenteeism. Em-
ployee received a final warning for absenteeism on 6–29–
93. Employee was informed by the foreman not to miss
anymore time from work when the citation was issued on
6–29–93. Employee did not report for work on 7–19–92.
Absence was unexcused. Employee was terminated.

Cortez testified on direct examination that he did not sign this
form until July 20, when Joseph returned to work without
documentation. Cortez acknowledged that he would not have
discharged Joseph if she had brought a police report, or some-
thing like that, to indicate that Joseph’s aunt was considered a
missing person by the local authorities.
Although he insisted that he signed this form for Joseph on
July 20, Cortez’ signature on the form is clearly dated: “July
19, 1993.” On cross-examination, when Cortez admitted that he
did date his signature as July 19, he attempted the explanation:

THE WITNESS: Sir, if I may . . . many a times when I
sign a paper, I just look at the date that is up there. I could
have signed it on the 20th; I could have signed it on the
19th. That is my problem here.

The form also bears a large, distinctive “B” after Cortez’ signa-
ture. Respondent’s placement supervisor, Bruce Nunez (vol.
117), identified that “B” on another document as the initial of
Julie Bolden, manager of employment and his immediate supe-
rior in the human resources department, Julie Bolden. Bolden
clearly dated her initial “7/19/93.” This act by Bolden creates
the presumption that the ASI-22 (discharge) form reached
Bolden’s desk, and she approved of the discharge, on July 19.
Respondent did not call Bolden to testify to the contrary. I find
that Cortez signed the ASI-22 (discharge) form on July 19, and
it was processed through to the human resources department on
that date.
Further on cross-examination, Cortez acknowledged that
when he reviewed Joseph’s personnel file, he found no warning
notices other than Joseph’s August 1992 warning notice for
absenteeism, her March warning notice for failing to call in,
and her June 29 warning notice for absenteeism; these warning
notices were received in evidence as Respondent’s Exhibits
475, 476, and 477, respectively. Cortez was asked and he testi-
fied:

Q. Was this, in fact—were these three exhibits, 475, -
76, and -77, all being Respondent exhibits, did you give
them any weight at all when you decided to fire Marie Jo-
seph?
A. Yes.
Q. And as best you can, explain to us what weight if
any you actually gave to these three exhibits.
A. In the very short time that the employee had really
had an absentee problem[;] she created it; it was there; it
was in black and white; and that is what added weight to
this decision.

Cardella testified, and Respondent contends, that Cardella actu-
ally made the decision to discharge Joseph. This testimony by
Cortez, of course, belies such testimony and contention. I find
that, as he testified, Cortez made the decision to discharge Jo-
seph.
Joseph’s Discharge—Conclusions
It is undisputed that Joseph was unlawfully interrogated by
Nealy. In response to that interrogation, Joseph told Nealy that
she would vote for the Union in the June 25 Board election.
Also, Joseph wore prounion insignia on her hardhat. This open
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1206
and obvious display of prounion sympathies would have been
known to all supervisors who worked around Joseph, including
Cortez. I find that, because of her response to Nealy’s interro-
gation, and because of her display of prounion insignia, Re-
spondent’s supervisors had knowledge of Joseph’s prounion
sympathies. Respondent’s animus toward all prounion employ-
ees, especially those employees who wore prounion insignia, is
established throughout this decision. I, therefore, find and con-
clude that the General Counsel has presented a prima facie case
that Joseph was unlawfully discharged, and the burden shifts to
Respondent to demonstrate by a preponderance of the evidence
that it would have taken the same action against Joseph even in
the absence of her known protected activities. Respondent’s
defenses must therefore be examined.
On brief, at page “CDC-CS-61,” Respondent states that “Ms.
Joseph was terminated for her unexcused absence [of July 19]
only 7 workdays after a [June 29] final warning for absentee-
ism.” As I have found, Cortez made the decision to discharge
Joseph, but Cortez did not testify that the amount of time be-
tween the issuance of the June 29 warning notice and Joseph’s
absence of July 19 was a factor in making his decision. Absent
such testimony, of course, it appears that the “7 workdays”
defense is nothing but a creation of Respondent’s counsel.218
Moreover, on July 19 Joseph had not been absent since June 17,
more than 30 days’ earlier; giving credence to the “seven
workdays” defense would make the employee’s offense a func-
tion of when Respondent got around to drafting a warning no-
tice. Finally, the Avondale Employees’ Guide, which punishes
three unexcused absences within 30 calendar days, does not
inform employees that they may also be punished according to
the number of working days that elapse between the times that
they are issued a warning notices and the times that they are
next absent, and none of Respondent’s supervisors testified that
employees were ever informed of such a rule.
Actually, Cortez never did give a reason for discharging Jo-
seph. Cortez testified about what happened, but not why. Cer-
tainly, Cortez did not testify that anything that Joseph did was a
ground, consistently enforced or otherwise, for discharge of an
employee. Placing Cortez’ testimony in the artificial light of the
best post hoc construction that can be made, Respondent is left
with the contention that Joseph was discharged because, prior
to July 20, she had been issued three warning notices (one of
which was for a failure to call in during 1 day’s absence and
one of which was marked “Final”), and, on July 20, she did not
present documentation for her absence of July 19.
The first problem with Respondent’s defense is that Cortez
made the decision to discharge Joseph on July 19, well before
he could have known that Joseph would not present documenta-
tion on July 20. Cardella recorded Joseph as being discharged
on his July 19 MCR, something that would not have happened
if, on July 19, Respondent intended to give Joseph the opportu-
nity to excuse her absence by producing documentation when
she returned from her absence on July 20.219 Cortez clearly

218 Even if there were some factual basis for Respondent’s assertion
about Cortez’ reasoning, it is to be noted that, as detailed in appendix D
of this decision, on November 7, 1991, paint department employee
Joseph Bonier was issued a warning notice; then he was absent on
November 8, 12, 13, 18, and 25, 1991. Bonier, however, was still not
discharged; instead, he went on to receive his fourth and fifth warning
notices for absenteeism.
219 When Cardella was falsely testifying that he made the decision to
discharge Joseph he offered, also incredibly, that he recorded Joseph as
dated his signature on the ASI-22 (discharge) form as July 19,
and he acknowledged that: “I could have signed it on the 19th.”
The form further belies any contention that Cortez decided to
discharge Joseph on July 20, as it designates the “Effective
Date” as July 19. Finally, the discharge form reached the hu-
man resources department, and Bolden initialed it to complete
the discharge process, on July 19. That is, Cortez made the
decision to discharge Joseph before he knew if, ultimately,
Joseph’s absence would be excused or unexcused. I find to be
pretextual the entire defense that Joseph was discharged be-
cause she did not bring in documentation on July 20. It is ap-
parent to me, and I find, that Cortez seized upon Joseph’s ab-
sence of July 19, alone, as a pretext for discharging her.220
Assuming, however, that the decision to discharge Joseph
was reached on July 20, and further assuming that Joseph’s
failure to present documentation had something to do with that
decision, it is to be noted that one of the three warning notices
that Joseph had received was not for absenteeism, but for fail-
ure to call in on a day of absence. Again, although the Avon-
dale Employees’ Guide tells employees that they should call in
on each day’s absence, it does not list such failures as even a
general offense. Therefore, Joseph had only two warning no-
tices for absenteeism when she was discharged for one absence
in excess of those warning notices. This is precisely the circum-
stance of the 133 employees enumerated in Appendix D of this
decision who received two, or more, warning notices for absen-
teeism (many of them “Final”) without being discharged on the
occasion of their next unexcused absence (as evidenced by their
listed third, or greater, warning notice for absenteeism). Re-
spondent offers no explanation of why those other employees
were allowed to accumulate three, or more, warning notices for
absenteeism without being discharged.221
Assuming, however, that the decision to discharge Joseph
was made on July 20, and further assuming that her failure to
present documentation had something to do with that decision,
and further assuming that all three of her preceding warning
notices should be counted against her, Respondent offers no
explanation of why 66 of the employees listed on appendix D
were permitted three warning notices for absenteeism (many of
them “Final”) without being discharged on the occasion of their
next absence (as evidenced by their listed fourth, or greater,
warning notice for absenteeism). As I did in the cases of Ancar
and Rouege, I find this evidence of disparate treatment to be
compelling, and I find the inference that Joseph was unlawfully
discharged to be plainly warranted.
That is, Respondent has failed to show why it allowed a sig-
nificant number of other employees to compile absenteeism
records that were worse than Joseph’s, but Joseph was dis-
charged and those other employees were not.222 Because it has

being discharged on July 19 because it did not matter whether Joseph’s
absence of that date was excused.
220 I find totally incredible certain testimony by Cortez that Joseph
was on a “probationary period” when she was absent on July 19. No
one told Joseph about it; Cortez could not name any other employee
who was ever placed on such a probationary period; and no other su-
pervisor testified that Respondent had any probationary periods for any
purpose.
221 It is also to be noted that a clear majority of those instances were
in the “Paint/CDC” department, before CDC was split off from the
paint department in February 1993.
222 Other evidence of disparate treatment of Joseph exists in the
cases of the 432 employees who were permitted to accumulate four or
more warning notices in 12-month periods from 1990 through 1994
AVONDALE INDUSTRIES

1207
failed to adduce such evidence, Respondent has not shown that
it would have discharged Joseph even absent her protected
activities. I therefore conclude that Respondent discharged
Joseph in violation of Section 8(a)(3) of the Act.
f. Michael Boudreaux’s discharge for absenteeism
Michael James Boudreaux (vol. 48) was a mechanic in the
sheetmetal department until he was discharged on September 9,
1993. The second complaint, at paragraph 121, alleges that by
discharging Boudreaux Respondent violated Section 8(a)(3).
The General Counsel contends that Respondent discharged
Boudreaux because of his known union activities and expres-
sions of sympathy which included his speaking in favor of the
Union to three supervisors. Respondent answers that its super-
visors had no knowledge of any union activities or sympathies
of Boudreaux at any relevant time and that Boudreaux was
discharged solely because of his excessive absenteeism. The
General Counsel replies that Boudreaux was treated disparately
because other employees had worse absenteeism records but
they were issued lesser disciplines than discharge. Ultimately, I
find and conclude that Respondent has failed to show that, even
under its own standards, Boudreaux had a record of excessive
absenteeism. I, therefore, find that the defense asserted is a
pretext and that Boudreaux was unlawfully discharged.
In the sheetmetal department, Boudreaux worked under the
supervision of Foreman Nathan Dubois during 1992.
Boudreaux also worked for Dubois in 1993 until July 13 when
he was moved to the crew of Foreman Joe DeNicola. On his
last day at work, September 9, Boudreaux was assigned to the
crew of Foreman Archie Frickey.
Boudreaux testified that during the preelection period, he
would regularly take handbills from union organizers at the
gate. He testified that he read them “on company time,” some-
times in the presence of Frickey and Dubois. Boudreaux testi-
fied that some time in June he was in Frickey’s office when
Frickey had a “pretty good stack” of “Vote-No” stickers on his
desk. According to Boudreaux, “Archie had told me that the
stickers he had on his desk was for anyone that wanted them.
And I told him I didn’t want any.” Frickey testified for Re-
spondent, and he denied knowing of Boudreaux’s “union af-
filiation,” but he did not deny this testimony by Boudreaux.
Boudreaux further testified that 2 days before the June 25
Board election he raised the topic of the Union with Dubois:

Well, I started talking to Nathan about why I think the
Union should get in the Company, and he was trying to
tell me why he thought the Union shouldn’t get in the
Company. And he finally just got irritated, and he was
walking off . . . telling me, “You are Union all the way,
Mike.”

Dubois testified for Respondent, but he did not deny this testi-
mony by Boudreaux.
Boudreaux further testified that, on the day before the elec-
tion, he was on the ground when Frickey and Dubois drove by
in a pickup truck. In the back were several employees. Bou-
dreaux testified:

without being discharged, as demonstrated previously in the case of
discriminatee Marshall. (Of the 883 employees listed in Marshall’s case
as having received three or more warning notices without being dis-
charged, 451 received only three; therefore, I have subtracted that num-
ber from 883.)
And Nathan and Archie hollered out, “Come picket
with us against the Union.” . . .
I told them that I wasn’t interested in going to picket
against the Union.

Dubois did not deny this testimony. Contrary to the assertion of
Respondent on brief, Frickey did not deny this testimony.
Frickey merely testified that on the day that he and a truck full
of other persons went to picket against the Union, he did not
recall anyone calling to Boudreaux and asking him to join in
that picketing.
Boudreaux further testified that about 3 weeks before he was
discharged, he was in the office of Foreman Joe DeNicola.
DeNicola, according to Boudreaux, told Boudreaux that he
wished certain factual statements in union handbills were true.
Boudreaux responded that DeNicola knew that they were true.
DeNicola testified for Respondent, but he did not deny this
testimony by Boudreaux.
Discharge of Boudreaux
During the investigation of the charge that was filed on be-
half of Boudreaux, Respondent provided a summary of
Boudreaux’s 1992 and 1993 record of absences, tardiness and
passouts.223 The summary does not distinguish between ex-
cused and unexcused absences, other than to note vacation
days.
According to the summary, in 1992 Boudreaux was absent
(other than vacation days) on 25 occasions. Boudreaux was
absent 3 of more days during 6 different months of 1992; to
wit: January, June, August, October, November, and December.
Under general offense-1 of the Avondale Employees’ Guide, of
course, Boudreaux could have been issued six warning notices
for such absenteeism, if not discharged. Boudreaux, however,
was issued only two warning notices on these six occasions.
Boudreaux’s first warning notice was issued on September 2,
1992, for being absent on 4 days during August. Boudreaux’s
second warning notice was issued on December 31, 1992; it
cites 3 days of unexcused absences and 3 days of tardiness in
December. It concludes: “Employee has previous warning on
absenteeism on 9/2/92. FINAL WARNING.” According to the
testimony, and Respondent’s records, this was the last warning
notice that Boudreaux received before his discharge on Sep-
tember 9, 1993.
Further according to the summary, Boudreaux was tardy 15
times during 1992; in addition to those that are cited by the
December 31 warning notice, Boudreaux was tardy three times,
each, during the months of March, April, and September 1992.
Under the literal terms of the Avondale Employees’ Guide’s
general offense-2, of course, Boudreaux could have been issued
four warning notices for such tardiness, if not discharged.
In 1993, before his discharge on September 9, Boudreaux
was absent (other than vacation days) on 12 occasions; to wit:
January 4, 5, 6, and 15; February 22; March 3, 25, 26, and 29;
April 6; August 18 and September 8. Although Boudreaux was
absent for 3 consecutive days in January, and he could have
been issued a warning notice under Major offense-1 of the
Avondale employees’ guide, he was then issued no warning
notice. Although Boudreaux was absent for four days in March,

223 “Passouts” are excused early departures for the day. Boudreaux’s
supervisors did not testify, and Respondent does not contend, that
Boudreaux’s history of passouts was a factor in his discharge, and it
will not be mentioned further.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1208
and could have been issued a warning notice under general
offense-1 of the Avondale Employees’ Guide, he was issued
none then, either. Further according to the summary of
Boudreaux’s attendance, Boudreaux was tardy 12 times in
1993; he was tardy three times in July, but he was issued no
warning notice for that.
When he returned from his August 18 absence, Boudreaux
presented documentation that he had been absent to secure parts
for his automobile, his transportation to work. Respondent
placed this documentation in evidence, and Arthur Schloegel,
the general foreman who ordered Boudreaux’s discharge, ac-
knowledged that Boudreaux’s August 18 absence should have
been treated as excused, as discussed infra.
Boudreaux testified that he was sick on September 8, and, as
he had been instructed, he called in to Schloegel’s office that
day before 7 a.m. to report that he would be out, and why.
When he reported to work on September 9, Boudreaux was met
by Frickey, who had just been made his foreman. According to
Boudreaux:

Archie Frickey asked me if I had a doctor’s slip, and I
told him, No, I didn’t have one, but I could get one. And
he said that if I didn’t have one right now, “[T]hey told me
to fire you.” . . .
I told him I could get one, but he said, “They told me
to fire you.”
And I said, “Okay.” And I went and got my tools and I
went through the procedure of being fired.

Boudreaux testified that he had never before been required to
have documentation for 1 day’s absence.
Boudreaux’s Discharge—Respondent’s Evidence
Prior to 1992, Frickey supervised Boudreaux directly.
Frickey (vol. 121) described Boudreaux as “one of my best
mechanics . . . a great worker,” other than his attendance.
Frickey identified a February 14, 1992 memorandum from
Schloegel to the foremen under him; the memorandum states:
“All days absent will be considered unexcused unless proper
paper work is bought in through my office to cover the day[s]
absent.” (That is, according to the memorandum, all absences
by employees under Schloegel are to be treated as presump-
tively unexcused; Schloegel testified consistently, as discussed
infra.) Frickey testified that when he issues warning notices to
employees for absenteeism, such as Boudreaux’s December 31,
1992 warning notice quoted above, he tells employees, “To
bring paperwork to protect themselves.” (The terms “paper-
work” and “documentation” are used interchangeably in this
context.)
Frickey testified that on September 6 he went to Schloegel’s
office.224 At the time, Boudreaux was still working on DeNi-
cola’s crew. Frickey was asked and he testified:

Q. And what, if—what was said in that conversation so
if the Judge was there, he would have heard it?
A. Well, Arthur [Schloegel] and I was talking about
other aspects of the job, and he brought up that Mike was
being—you know, his service was being terminated. . . .
He was going to be terminated. . . .

224 September 6, 1993, was Labor Day, but, at any rate, Frickey was
placing the date at just 1 or 2 days before Boudreaux’s last absence and
discharge.
I then asked Arthur if he would please send Mike with
me and let me give him a chance. I knew Mike personally,
and he was a friend of mine. So . . . I asked Arthur to send
Michael with me.
Q. [By Mr. Cupp]: And what, if anything, did Arthur
say?
A. He said he would, but if Mike missed another day,
he was terminated.

Frickey further testified that he called Boudreaux to his office
that afternoon. According to Frickey, he told Boudreaux: “that
they was getting ready to terminate him; that if he had to miss
any time, to make sure that he brings paper work—to protect
himself.” On cross-examination Frickey added that, as well as
telling Boudreaux that he needed to bring documentation to
“protect himself,” he then told Boudreaux that he would be
discharged if he was ever absent again without bringing in
documentation of his excuses for his absences.
Frickey further testified that on September 8, when
Boudreaux did not appear, he called Schloegel. Frickey, testi-
fied that Schloegel responded: “[I]f he doesn’t show up tomor-
row with paper work if he came out, he was terminated.”
Frickey testified that on September 9, when Boudreaux ap-
peared without a doctor’s note, he called Schloegel. He told
Schloegel what had happened, and Schloegel told him to dis-
charge Boudreaux. Frickey then told Boudreaux that he was
terminated. Frickey denied that Boudreaux offered to bring in
documentation for his September 8 absence. On direct exami-
nation Frickey was further asked and he testified:

Q. Mr. Frickey, have you ever allowed workers to
bring in excuses several days after they are absent?
A. No more than two.
Q. And under what circumstances will you allow that?
. . .
A. If they are not continually abusing the system, you
know. . . . He [Boudreaux] was an abuser.

Frickey acknowledged that Schloegel did not tell him what
Boudreaux’s prior absenteeism record was, and he did not oth-
erwise find out before telling Boudreaux that he was dis-
charged.
On cross-examination Frickey testified that he considered an
employee “an abuser” if he “continually” failed to bring in
documentation for absences, but, again, he did not know if
Boudreaux had done so before September 9. Frickey further
admitted that he had never told any employee that he would not
be allowed to bring in documentation 1 or 2 days late if the
employee had been “an abuser.”
Finally on cross-examination, Frickey was shown the sum-
mary of Boudreaux’s absences. After being pointed to the fact
that Boudreaux had no 1993 absences between April 29 and
August 18, Frickey was asked and he testified:

Q. All right. Now, after looking at the General Coun-
sel’s 252 [the summary of Boudreaux’s absences], do you
know why Mr. Schloegel told you on Monday, September
6 that Mr. Boudreaux was about to be fired?
A. Just because of excessive termination—I mean ex-
cessive absenteeism.
Q. And that is the only reason you know of?
A. That is the only one I know of, yes.
Q. Sir, from March 29 to September 8, would you con-
sider two absences to be excessive?
AVONDALE INDUSTRIES

1209
A. No.

(At the point that the General Counsel cross-examined Frickey,
Schloegel had not yet testified and acknowledged that
Boudreaux’s August 18 absence was actually excused; there-
fore Boudreaux actually had only one unexcused absence from
March 29 to September 8, not two.)
Schloegel (vols. 134, 135) testified, several times, that he de-
cided to discharge Boudreaux because of “excessive absentee-
ism.” Schloegel testified that on August 23, DeNicola brought
Boudreaux to him and complained that Boudreaux was late that
day.225 When asked what he told Boudreaux, Schloegel testi-
fied:

I said, “Mike, why don’t you go out there and do your
job. . . . And, Mike, if you can’t handle that or if you can’t
go out there and do your job, why don’t you just go get
another job.”

Schloegel further testified that on the same day, August 23,
Frickey approached him and asked if Boudreaux could be as-
signed to him because they were friends, “and maybe he could
snap Boudreaux back into a productive worker.” Schloegel
agreed. (This testimony, of course, conflicts with that of
Frickey because: (a) Frickey testified that the decision to send
Boudreaux to his crew occurred on “September 6,” or just be-
fore September 8, not as early as August 23; (b) Schloegel did
not testify that he broached the subject of Boudreaux to
Frickey, (c) Schloegel did not testify that he had been contem-
plating the discharge of Boudreaux before September 8, and (d)
Schloegel did not testify that he told Frickey that he had been
contemplating Boudreaux’s discharge.)
Schloegel testified that on September 8, when he found that
Boudreaux was absent, he told Frickey to discharge Boudreaux
if Boudreaux returned from his absence without documentation.
(Schloegel did not, however, testify that Frickey called him
before discharging Boudreaux on September 9; Schloegel testi-
fied that Frickey called him after the fact and reported that he
had discharged Boudreaux because Boudreaux had returned
from his absence without documentation.)
Schloegel identified a memorandum that he sent to his fore-
men on March 30, 1992; it states, inter alia: “Abusive absentee-
ism may require an employee to provide written verification of
the reason for their absences.” At the close of his direct exami-
nation on day-134, Schloegel identified two such 1993 excuses
as having been taken from Boudreaux’s personnel file. The first
is a March 3 doctor’s note, and the second is an August 18
automobile parts receipt.
Schloegel had first been called by Respondent on day-109 of
trial. When he was on direct examination that day, he was
asked nothing about the circumstances of Boudreaux’s dis-
charge. The General Counsel, however, then asked Schloegel
how absences were handled by him and his subordinate fore-
men. Schloegel testified that (consistent with his February 14,
1992 memorandum mentioned above) even if an employee

225 Respondent introduced an August 23 memorandum in which
DeNicola complained of other aspects of Boudreaux’s performance. As
well as Boudreaux’s tardiness of that date, and certain slow work by
Boudreaux, the memorandum includes references to 1 day’s vacation
that Boudreaux took, and it also includes reference to Boudreaux’s
(excused) absence of August 18. Schloegel did not testify that DeNi-
cola orally complained to him about those other aspects of Boudreaux’s
performance. Finally, cross-examination proved that Schloegel did not
read DeNicola’s memorandum until after Boudreaux was discharged.
calls in or gives advance notice of an absence, he is recorded
“06,” unexcused, on the foreman’s MCR for that day. Although
the MCR will never be changed, if an employee brings in
documentation the absence will not be counted against him
when Schloegel later reviews his records. As Schloegel put it:
“The 6 [“06”] will stay there [on the MCR]. When I do my 30-
day write-ups, if they brought in a piece of paper—let’s call it a
note or something—from the doctor, he [the employee] would
never see that 6. I won’t—I will just put that [“06”] on the
side.” Schloegel testified that for an “06” not to be counted
against an employee, he should bring his paperwork the next
day. As Schloegel put it: “He needs the paperwork . . . to clear
him. If he lets it go three or four days, I won’t accept that. I
want it the day he comes back, that morning.” In summary,
Schloegel testified that absences that are excused by paperwork
are never held against employees; employees should bring pa-
perwork upon their returns from their absences, and, if they do
not bring it within 2 days, or possibly three, their absences will
be treated as unexcused and they may be disciplined.
During the cross-examination of day-135 of trial, Schloegel
specifically acknowledged that Boudreaux’s August 18 auto-
mobile parts receipt would, and did, excuse him for his absence
on that day. (And, on redirect examination, Schloegel reaf-
firmed that, even if an absence is originally recorded as unex-
cused, the absence will not be “held against” the employee if he
presents such documentation.)
Further on cross-examination Schloegel was shown his
memorandum of March 30, 1992, that states: “Abusive absen-
teeism may require an employee to provide written verification
of the reason for their absences.” Then Schloegel was asked
and he testified:

Q. All right, sir. I am going to direct your attention to
the last sentence in paragraph 1. It starts out with the
phrase, “abusive absenteeism.”
A. Okay.
Q. Sir, missing one day is not abusive absenteeism, is
it?
MR. CUPP: Objection. Argumentative.
JUDGE EVANS: When would one day’s absence be abu-
sive?
THE WITNESS: Three days in a 30-day period, and if
this continues, month after month after month, it is abu-
sive. . . . If you miss one day, it is not abusive.

On the issue of why he considered Boudreaux’s absenteeism
excessive, Schloegel was further asked and he testified:

Q. You are aware that the employee handbook says an
employee may be given a citation for having three unex-
cused absences in a 30-day period.
A. Yes.
Q. And at the time you discharged Mr. Boudreaux, he
did not have three absences, unexcused, in a 30-day pe-
riod, did he?
A. He had excessive absenteeism.
Q. My question, sir, is: He didn’t have three absences,
unexcused, in a 30-day period on September 8 or 9, 1993,
did he?
A. I don’t know.

Further on Day-109, Schloegel was asked about the progres-
sive disciplinary system of the Avondale Employees’ Guide
and how he applied it in the sheetmetal department. The follow-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1210
ing was included in the interrogation (after frivolous objections
from Respondent’s counsel which caused me to take over the
questioning myself):

JUDGE EVANS: . . . But in 1993 and `94, what was the
significance of an employee receiving three warning no-
tices, let’s say, within 12 months, if any.
THE WITNESS: It all depends on the circumstance,
Judge. If—he could have seven. He could have five. He
could ten. It all depends on the circumstances. Okay? If—
that is it. You could have more than three.

Schloegel, however, acknowledged that he did not know how
many warning notices that Boudreaux had been issued at the
time that he ordered Boudreaux’s discharge. In fact, Bou-
dreaux’s warning notice of December 31, 1992, was the only
warning notice that he had received during the 12-month period
preceding his absence of September 8.226 Because of this,
Schloegel was further asked and he testified:

Q. [By Mr. Morgan]: And, sir, did you know on Sep-
tember 8 or 9, 1993, that Mr. Boudreaux did not have
three warnings or three citations in a 12-month period?
A. I didn’t know that.
Q. Did you check?
A. No. . . .
Q. Sir, are you aware—at the time you discharged or
directed Mr. Frickey to discharge Mr. Boudreaux, were
you aware that he had no citations for the calendar year
1993?
A. No.
Q. When you discharge an employee or direct that an
employee be discharged, don’t you generally review his
personnel file prior to his discharge?
A. In most cases, I do.

On redirect examination, Schloegel was not asked why he made
an exception in Boudreaux’s case.
Boudreaux’s Discharge—Conclusions
I credit Boudreaux’s testimony about his expressing his
prounion sympathies to his supervisors, all of which is un-
denied. In June, Boudreaux declined Frickey’s offer of a “Vote-
No” sticker. Two days before the Board election, Dubois pro-
nounced Boudreaux to be “Union all the way” because of the
prounion arguments that Boudreaux had made to that supervi-
sor. On the day before the Board election, Boudreaux declined
calls by Frickey and Dubois to join them, and others, in the
pickup truck, and go picket against the Union. (Frickey testified
that he went to picket in a truck on the day of, not the day be-
fore, the Board election. Boudreaux might have been in error
about the date, but there is no important difference in the effect
of the credited testimony.) Finally, about 3 weeks before his
discharge, Boudreaux assured DeNicola that he could trust
certain factual representations that had been made in a union
handbill. Frickey and Schloegel, who discharged Boudreaux,
denied knowing of any “Union affiliation” that Boudreaux may
have had. They did not, however, deny that they knew of his
prounion sympathies. To the extent that their testimonies can be
said to incorporate such denials, I discredit them. I find that, at
the time of Boudreaux’s discharge, Respondent’s supervisors
knew of his prounion sympathies. Respondent’s animus toward

226 As well as the testimony, the General Counsel introduced human
resources separtment records to prove this point.
employees who held such sympathies is established throughout
this decision. I therefore find and conclude that the General
Counsel has presented a prima facie case that Boudreaux was
unlawfully discharged, and the burden shifts to Respondent to
demonstrate by a preponderance of the evidence that it would
have taken the same action against Boudreaux even in the ab-
sence of his known protected activities. Respondent’s defenses
must therefore be examined.
On brief, page “Sheetmetal-7,” Respondent states: “Bou-
dreaux was discharged on September 9, 1993, for chronic and
excessive absenteeism after numerous written and [oral]
warnings and counseling from his supervisors in the Sheetmetal
Department.” By stating this, Respondent concedes the impor-
tance of warning notices (plural) to its defense of Boudreaux’s
case. Schloegel admitted on cross-examination, however, that
he did not know how many warning notices Boudreaux had
accumulated at the time that he ordered the discharge. Indeed,
Schloegel admitted that even though he usually checks to see
how many warning notices an employee has before discharging
him, he did not do so in Boudreaux’s case. As noted,
Boudreaux’s warning notice of December 31, 1992, was the
only warning notice that he had received during the 12-month
period preceding his absence of September 8.
Although the Avondale Employees’ Guide warns employees
that they can be discharged for a second general offense, the
supervisors who were asked universally agreed that they re-
quire at least three general offenses before they discharge em-
ployees. Schloegel, however, testified: “He could have five. He
could have ten. It all depends on the circumstances. Okay? If—
that is it. You could have more than three.” Nevertheless,
Schloegel afforded Boudreaux only one warning notice before
ordering his discharge. This failure to allow Boudreaux more
than one warning notice, and thus afford him the benefit of
Respondent’s established progressive disciplinary system,
causes the strongest suspicion that Boudreaux’s discharge was
unlawfully motivated.
Further suspicion arises when it is noted that Schloegel testi-
fied that employees who do not present paperwork for their
absences within 3 or 4 days of their returns are charged with an
unexcused absence, and they may be punished for three unex-
cused absences in 30-day periods. At no point, however, did
Schloegel testify that he ever discharged an employee, other
than Boudreaux, for his failure to bring paperwork on the first
day that he returned from an absence. Schloegel and Frickey
attempted to justify making Boudreaux a special case because
he was an “abuser” of the system. Ultimately, Frickey conceded
that Boudreaux was not an abuser of Respondent’s system for
controlling absences. Schloegel did not relent, but he could not
explain how Boudreaux had been abusive. For example,
Schloegel was asked what he meant, in his 1992 memorandum
and in his testimony, by the term “abusive,” so that an em-
ployee would be required to bring documentation for one day’s
absence. Schloegel replied: “Three days in a 30-day period, and
if this continues, month after month after month, it is abusive.”
Of course, the last month that Boudreaux had been absent three
times was March; it had not continued, “month after month
after month,” since at least then. And even in March,
Boudreaux was not disciplined other than to have been charged
with unexcused absences. Simply stated, even according to the
rules that Schloegel and Frickey announced at court, Boudreaux
had been treated infinitely more leniently before he announced
his prounion sympathies in June.
AVONDALE INDUSTRIES

1211
It is plain enough why a supervisor would consider
Boudreaux an abuser if he looked only at Boudreaux’s absen-
teeism record for 1992 and the first 3 months of 1993. For all of
that absenteeism, Boudreaux was issued two warning notices
(the warning notices of September 2 and December 31, 1992),
but Boudreaux was not discharged. Then, from April 6 through
September 7, Boudreaux had only one absence, that of August
18. Schloegel conceded, however, that, because of the docu-
mentation that Boudreaux had produced (the automobile parts
receipt), the August 18 absence was excused. Therefore,
Boudreaux had no unexcused absences between April 6 and
September 8. Schloegel could not explain at trial, and counsel
does not attempt to explain on brief, how Boudreaux’s absen-
teeism record could have been considered “excessive” immedi-
ately before his absence of September 8. Indeed, Schloegel
admitted that he did not even know what Boudreaux’s
absenteeism record was before he ordered the discharge.
I fully believe, and credit, Boudreaux’s testimony that on
September 9 he told Frickey that he had been to the doctor’s
office, and he could get documentation of the fact. If, like other
employees, he had been allowed a second chance to present the
documentation, his absence would have been excused, even
according to the standards announced by Schloegel at trial.
Even if he had not offered to secure the documentation on Sep-
tember 9, or even if he could not have secured it if he had been
given a chance, however, Boudreaux still would not have had
an unexcused absence for 150 days before that point.227 That is,
again, Schloegel defined “abusive” absenteeism as: “Three
days in a 30-day period, and if this continues, month after
month after month, it is abusive,” but neither by Schloegel’s
definition, nor any that Respondent can suggest on brief, was
Boudreaux’s absenteeism “excessive” at the time of his Sep-
tember 8 absence.228
Because Boudreaux did have such a good attendance record
through September 7, I further do not believe Schloegel’s tes-
timony that he told Frickey to tell Boudreaux that he would be
discharged if he ever appeared without documentation for an
absence, and I do not believe Frickey’s testimony that he did
so. There was simply no occasion for Schloegel and Frickey to
have threatened Boudreaux with discharge for his next unex-
cused absence in light of Boudreaux’s 150-day record that was
clear of unexcused absences. Finally, I simply do not believe
Frickey’s account of how he took on the burden of supervising
Boudreaux just to protect Boudreaux from a discharge that
Schloegel was contemplating. The accounts of how that was
supposed to have happened varied substantially between
Frickey and Schloegel, as noted above. At minimum, I do not
believe that Frickey took it upon himself to assumed the role of
Boudreaux’s protector. Again, Boudreaux had been protecting
himself by good attendance and by bringing in documentation
on the one occasion during the preceding 5 months that he had
been absent, August 18. Frickey’s professed paternalism was
not a factor in Boudreaux’s discharge; rather, it appears that the
reassignment of Boudreaux to Frickey’s crew was nothing
more than a normal change of personnel, and it was something
that Frickey and Schloegel retroactively grasped to justify their

227 Again, as Schloegel conceded, Boudreaux’s August 18 absence
should have been treated as excused.
228 On brief, Respondent emphasizes Boudreaux’s absenteeism be-
fore April. I do also, but I reach the opposite conclusion because
Boudreaux’s record before April demonstrates that he was discrimi-
nated against thereafter.
discharge of Boudreaux. In summary, the scenario that
Boudreaux was sent to Frickey’s crew to receive Frickey’s
guidance in handling a nonexistent absenteeism problem is a
pretext that is “so baseless, unreasonable, or contrived as to
itself raise a presumption of wrongful motive.” Montgomery
Ward & Co., 316 NLRB 1248 (1995).
An inference of wrongful motive is fortified by two separate
elements of discrimination that are intrinsic to Boudreaux’s
case. The first element is found in the fact that Respondent’s
usual penalty for an employee’s failure to present documenta-
tion for an absence was only the charging of an unexcused ab-
sence to that employee’s record; the penalty for a failure of
documentation was not, until Boudreaux’s case, discharge.
(And Respondent’s putative basis for the greater penalty meted
out to Boudreaux, his prior “excessive absenteeism,” is nothing
but a pure sham.) The second element of discrimination that is
intrinsic to Boudreaux’s case is found in the fact that, in 1992,
Boudreaux was allowed a substantially greater number of ab-
sences without punishment. Then, after he voiced his prounion
sympathies to his supervisors beginning in June, he was dis-
charged on the occasion of his first unexcused absence in 150
days. Even that last absence could have been retroactively ex-
cused if Respondent had allowed Boudreaux (as it usually did
allow employees) to present documentation within a day or two
after his return.
In light of the expansive evidence of animus toward proun-
ion employees that the General Counsel has proved, either of
these dual factors of intrinsic discrimination would compel the
conclusion that Boudreaux’s discharge was unlawful. Addition-
ally, the General Counsel also introduced as evidence of dispa-
rate treatment of Boudreaux documents that attest to 132 cases
of employees being allowed from three to eight warning notices
for absenteeism in 12-month periods during the 3 years before
the organizational campaign began, as discussed in Ancar’s
case, and as detailed in Appendix D of this decision.229 On
brief, Respondent suggests no reason why this evidence should
not be found by the Board to compel the conclusion that Re-
spondent treated Boudreaux disriminatorily, and unlawfully.230
For all of the above reasons, I find that Respondent has not
shown that, even absent his known prounion sympathies, it
would have discharged Boudreaux, and I therefore conclude
that Respondent had violated Section 8(a)(3) of the Act by that
discharge.
g. Kevin Lockett’s discharge for absenteeism
Kevin Lockett (vols. 13, 14) was an electrician’s helper until
he was discharged on July 27, 1993. The second complaint, at
paragraph 107, alleges that by discharging Lockett Respondent
violated Section 8(a)(3). The General Counsel contends that
Respondent discharged Lockett because of his wearing of
prounion insignia. The General Counsel further alleges that, in

229 The General Counsel’s brief at chapter VII, pp. 27–0929 lists ex-
hibits reflecting approximately 100 more cases of employees who re-
ceived three or more warning notices for absenteeism. I need not detail
all of these comparative cases because the discrimination intrinsic to
Boudreaux’s case, and the documentation discussed in Ancar’s case
and App. D of this decision, prove the point.
230 Additionally, even if one assumes that Boudreaux committed
some disciplinary offense on September 9, evidence of his disparate
treatment exists in the cases of the 883 employees who were permitted
to accumulate three or more warning notices in 12-month periods from
1990 through 1994 without being discharged, as demonstrated previ-
ously in the case of discriminatee Marshall.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1212
violation of Section 8(a)(1), Lockett was interrogated, threat-
ened, instructed not to wear prounion insignia and warned that
his union activities were being kept under surveillance. Re-
spondent denies that the interrogation, instruction, threat, or
surveillance warning occurred. Respondent further answers that
its supervisors had no knowledge of any prounion sympathies
that Lockett may have held; to the contrary, Respondent asserts
that Lockett voluntarily wore “Vote-No” stickers, distributed
such stickers to other employees and picketed against the Union
on the day of the Board election, June 25. Respondent further
answers that Lockett was discharged solely because of exces-
sive absenteeism. The General Counsel replies that Lockett was
treated disparately because other employees had worse absen-
teeism records, but they were issued lesser, or no, discipline.
Ultimately, I find and conclude that Lockett was an antiunion
employee and the General Counsel has not presented a prima
facie case that he was unlawfully discharged.
Lockett testified that Dell Thibodeaux was his foreman until
June 1993 when Foreman Louis Lester became his immediate
supervisor. Thibodeaux and Lester reported to General Fore-
man Mark Poche and Departmental Superintendent Robert
Terry. Lockett testified that, about 3 weeks before the June 25
Board election, Lester and Thibodeaux conducted a joint meet-
ing of their crews. According to Lockett, Lester spoke at the
meeting and told the employees that:

“[I]f we were ever caught talking about the Union on Avon-
dale property by anyone in supervision that we were going to
be terminated.” . . . If we were caught defacing property with
union paraphernalia that we would be terminated on the spot. .
. . It didn’t matter if it was five to ten people that was talking
about the Union while they was at work on Avondale’s prop-
erty, they were all going to get fired. And he also said that if
any individual was caught trying to influence another one that
they would get fired for trying to influence another individual
to vote for the Union.

Based on this testimony by Lockett, paragraph 41(a) of the
second complaint alleges that Respondent, by Lester, “threat-
ened its employees with discharge if they continued to . . .
speak to other employees about the Union or to influence other
employees to support the Union.”
Lockett testified that some employees at the meeting felt of-
fended by what Lester had said, so they painted on their (pri-
vately owned) hardhats: “Freedom of Speech . . . Watch What
You Say . . . Vote Yes.” Lockett testified the he was the only
one on Lester’s crew that painted those words on his hardhat.
Additionally, Lockett testified, he placed a “Union-Yes” sticker
his shirt, but he did not testify about how often he wore a union
sticker.
Lockett testified that on another occasion during the same
week, when he and Lester were alone in a work area, when
Lockett had a union sticker on his shirt, Lester asked him to
take it off because “I wasn’t supposed to be wearing it on
Avondale property. . . . He said that I could be terminated on
the spot and lose my job, it would cost me my job for wearing
that tag.” Based on this testimony by Lockett, paragraph 41(b)
of the second complaint alleges that Respondent, by Lester,
“threatened its employees with discharge if they continued to
wear union insignia, and . . . told its employees that they could
not wear union insignia at Respondent’s facility.”
Lockett further testified that during the week before the
Board election, he was working near Poche’s office and:

I was already up on the deck [that] his office was on
and I was passing it and he called me in. And when I went
in there he said that I stabbed him in his back. I asked him
what he was talking about. He told me somebody had told
him I was with the Union.
And I asked him where he heard that from because I
said it was lies.
He told me [that] if he found out that it was true that he
was going to cut my water.

Based on this testimony by Lockett, paragraph 49 of the second
complaint alleges that Respondent, by Poche: “(a) created the
impression among its employees that their union activities were
under surveillance by Respondent; (b) interrogated its employ-
ees about their union membership, activities and sympathies;
and (c) threatened its employees with unspecified reprisals if
they aided or supported the Union.” Lockett testified that, be-
fore this incident, Thibodeaux had drafted several warning
notices that Poche had destroyed; these included “three or four”
warning notices for absenteeism, two for wearing a large,
wooden-pendant, necklace in violation of Respondent’s safety
rules, and two for sleeping.
On cross-examination, Lockett acknowledged that his pre-
trial affidavit included no reference to the writing on his hard-
hat of the slogan: “Freedom of Speech . . . Watch What You
Say . . . Vote Yes.” Lockett further acknowledged that his affi-
davit states that, at the time that Poche said that he had heard
that Lockett favored the Union, he had been telling Poche that
he was against the Union. Further on cross-examination Lockett
acknowledged that, on his preemployment application with
Respondent, he stated, falsely, that he had not been convicted
of a felony. Lockett was asked and he testified:

Q. Why did you mark that box “no” when you were in
fact convicted of a felony in 1989?
A. Because I was afraid they weren’t going to hire me
if I would have put “yes,” because every place of business
that I want to try to get a job at, they refuse me because of
that.
Q. So you marked that box “no” in order to help you
get a job at Avondale. Is that correct?
A. Yes.

These answers, I find, are nothing short of admissions that
Lockett would lie to get, keep or retrieve (with backpay) his
job. As I discuss below, I believe that Lockett did give false
testimony in regard to his union sentiments. Also, on redirect
examination Lockett was not asked for any explanation of how,
if it was true, his affidavit could have failed to mention the
“Freedom of Speech” slogan that he claims to have placed on
his hardhat.
Poche (vol. 77) testified that Lockett repeatedly asked him
for “Vote-No” stickers, and Lockett regularly (and without
prompting from him) wore two “Vote-No” stickers on his hard-
hat. Also, Poche testified that, on the morning of the Board
election, Lockett (along with alleged discriminatee Chad Duro-
cher) marched at one of the Company’s gates with a “Vote-No”
poster. Lockett was not called in rebuttal to deny any of this
testimony by Poche, and I found it credible. From this factor,
alone, I would find that Lockett was never a prounion em-
ployee. Additionally, as I discuss below, I have discredited
Lockett’s testimony that Lester told the employees that they
could not talk about the Union or they would be fired; there-
fore, I certainly do not believe that, in reaction to that alleged
AVONDALE INDUSTRIES

1213
statement, Lockett placed the “Freedom of Speech” slogan on
his hardhat. (Lockett was further impeached on this point, I
find, by his failure to include it in his pretrial affidavit.) It is
further to be noted that Lockett testified that, when Poche told
him that he (Poche) had heard that Lockett was prounion,
Lockett responded, “I asked him where he heard that from be-
cause I said it was lies.” That much of Lockett’s testimony was
believable, and I believe that Lockett was then telling Poche the
truth. I find that Lockett expressed no prounion sympathies
before he was discharged, and I conclude that the General
Counsel has not presented a prima facie case that his discharge
violated Section 8(a)(3). I shall therefore recommend dismissal
of that allegation of the complaint.
Antiunion employees, however, can still be threatened in
violation of Section 8(a)(1), and I find that antiunion employee
Lockett was threatened and interrogated by Poche, but not by
Lester. Lockett was extremely unimpressive when testifying
about the threats by Lester. Moreover, Lester (vol. 135) credi-
bly denied all of the threats and instructions that Lockett attrib-
uted to him. Poche, however, was not credible in his denial that
he told Lockett that Lockett had “stabbed” him in the back, and
Poche was not credible in his denial that he told Lockett that
someone said that Lockett favored the Union. Poche further
was not credible in his denial that he told Lockett that he would
“cut [Lockett’s] water” if he did turn out to be prounion.
Lockett, as I have indicated, was believable in this part of his
testimony. Lockett credibly testified that Poche had theretofore
destroyed several warning notices that Thibodeaux had drafted
for him. A threat to “cut your water off,” or words to that ef-
fect, is a common way to tell someone that he would not re-
ceive indulgences that theretofore had been afforded.
Poche was sounding out Lockett about possible prounion
sympathies when he told Lockett that he had heard that Lockett
was favoring the Union. That was an unlawful interrogation.
Poche apparently accepted Lockett’s declaration that he was
still antiunion, but he threatened Lockett that, if he ever did
become prounion, the indulgences that Lockett had theretofore
been afforded (for whatever reason) would stop. This threat
was plainly unlawful. In summary, I find and conclude that
Respondent, in violation of Section 8(a)(1), by Poche, in late
June 1993, interrogated an employee about his union member-
ship, activities, or desires, and threatened an employee that
indulgences or privileges would be withdrawn if that employee
supported the Union. Moreover, Poche’s statement to Lockett
that he had heard that Lockett was then a prounion employee
may have been a bluff, but it was nevertheless a statement that
the employee’s protected activities were being made note of,
and the statement was coupled with the unlawful threat that if
what the supervisor had heard was true, Lockett was to suffer.
Such statements necessarily would have had a coercive impact
on any employee who heard it, even an antiunion employee
such as Lockett. Poche’s action, therefore, was further a crea-
tion of an impression of surveillance of the employee’s pro-
tected activities in violation of Section 8(a)(1), as I further find
and conclude.
h. Philip Perera
Philip Perera (vols. 10, 50), who is currently employed as an
electrician, was issued warning notices on June 30 and July 27,
1993, and March 10 and 16, 1994.231 The third complaint, at
paragraph 9, alleges that the four warning notices were issued
in violation of Section 8(a)(3). The General Counsel contends
that Respondent issued the warning notices to Perera because of
his known union activities and expressions of sympathy which
included his wearing of prounion insignia, his serving as an
alternate union observer at the June 25 Board election, and his
speaking directly to supervisors in favor of the Union. Respon-
dent does not deny knowledge of Perera’s prounion sympathies,
but it answers that the first three warning notices were issued to
Perera solely because of Perera’s excessive absenteeism, and
Respondent contends that Perera’s fourth warning notice was
issued solely because he was soliciting or distributing literature
in violation of Respondent’s facially valid no-solicitation and
no-distribution rules. The General Counsel does not dispute the
absences that Respondent attributes to Perera, but the General
Counsel contends that Perera was disciplined disparately be-
cause other employees’ absences were excused under similar
circumstances. The General Counsel disputes that Perera was
soliciting or distributing literature before the fourth warning
notice was issued to him. Alternatively, the General Counsel
contends that Perera was disciplined for his solicitation dispar-
ately because other employees conducted known solicitations
without punishment. Ultimately, I find and conclude that Re-
spondent violated Section 8(a)(3) by its issuance of two of the
three warning notices for absenteeism and by its issuance of the
warning notice for Perera’s solicitation or distribution.
Perera has been employed by Respondent since 1989. On
March 19, 1993, Perera began working on the crew of Foreman
James Imhoff. Imhoff reported to General Foreman Jimmy
Mancuso, senior General Foreman Gerald Gerdes, and Electri-
cal Department Superintendent Robert Terry.
Perera testified that he placed two union stickers on his
hardhat at the first of the organizational attempt in March 1993.
In early May, according to Perera, he was spoken to by Imhoff
and:

He asked me why I wanted the Union. I said, “Well, it
can’t be any worse than what I have now, and it can only
make me better; it can only make us better off.” I told him
I feel it would help better me, because I needed somebody
to represent me, because I feel like I had been there so
long and they cut out raises; nobody could get a raise; you
couldn’t get anyplace. You were just stuck in a rut. You
couldn’t get anyplace.

Perera testified that Imhoff did not reply. There is no interroga-
tion allegation based on this exchange between Perera and Im-
hoff; the General Counsel introduced it to show the degree of
Perera’s union activities and expressions of sympathies. Perera
further testified that on May 10 Terry conducted an employer
campaign meeting. During the meeting, according to Perera:

He started off the meeting, he said if the Union got in,
they would take our vacation and sell it back to the Com-
pany and have the Company take our dues out of our
check and send it right back to them. . . .
And I made a statement as to which he didn’t know
what he was talking about because he never belonged to a
union and I had, and I never had the Union tell any com-

231 All dates mentioned in Perera’s case are between April 1, 1993,
and March 31, 1994, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1214
pany to take any money out of my check to mail it to
them.

Perera was an alternate union observer for the Board elec-
tion. During the voting, Perera stood outside Respondent’s
administration building, apparently waiting to be called if
needed. As he stood around the entrance to the building, Perera
also hand-billed passers-by. As he did so, according to Perera,
he was approached first by Paint Department Foreman Randall
Laborde and then by Imhoff. Perera was asked and he testified:

Q. And what, if anything, happened when Mr. Laborde
approached you?
A. He asked me if I was crazy. I told him, no, I wasn’t.
I was a man making up my own decision and doing what I
thought was right.
Q. And when Mr. Imhoff approached you, could you
tell us, please, what happened.
A. He told me, “What are you doing?”
I said, “I am standing out here handbilling.”
He says, “Why? Why are you not coming to work?
You are not getting paid.”
I said, “Well, I am not worried about being paid; I am
out here doing what I think is right for myself, to better
myself.”

Neither Terry, nor Laborde, nor Imhoff denied this testimony
which was offered as further evidence that Respondent knew of
Perera’s strong prounion stance. Terry further admitted (vols.
42, 92) that, because of the prounion insignia that he had worn,
Perera’s name was on his list of “prounion supporters.” A pic-
ture of Perera, standing before Respondent’s main gate on the
day of the Board election, positioned behind a large “Vote Yes”
sign, along with alleged discriminatee Richard St. Blanc, ap-
peared in the financial section of the Times Picayune on Sun-
day, July 18. All of which is to say that Perera was one of the
most prominent union supporters in the entire plant.
(1) Perera’s three warning notices for absenteeism
On May 21, 1992, Terry issued a memorandum to all electri-
cal department employees. The memo states, in part:

Absences other than vacation will also not be tolerated
unless you provide proof of a legitimate, serious nature
explaining why you were absent.
Examples of acceptable proof are letterhead stationery
properly signed by a doctor, hospital, dentist, judge, court
clerk and [sic] the I.R.S. When you provide your supervi-
sor with this proof, your supervisor will signify acceptance
by countersigning the documentation and forwarding it to
the Main [Electrical Department] office for inclusion in
your personal records. Just to call in and state that you will
be absent by no means qualifies you for an “excused ab-
sence.”

Gerdes credibly testified (vol. 122, 123) that the May 21, 1992
memorandum from Terry was posted in the main electrical
department office and it was posted at all electrical department
toolrooms. (Perera acknowledged that he had read the notice
when it was posted on a wall of the place where he usually
signed in during that period of time.) Gerdes also attended
meeting where, pursuant to Terry’s instructions, foremen re-
viewed the memorandum with their crews. Gerdes testified that
he also distributed to all foremen on the LSDs a memorandum
from Terry that was issued on October 26, 1992. On the subject
of absenteeism, Terry states, inter alia:

To insure that all of our employees (both new-hires
and long-standing employees) are aware of our policy
concerning absenteeism, we ask that you please review the
following with them.
If you must be absent from work, you must contact the
main Electrical Office at either [two local telephone num-
bers] before 7:30 a.m.
You must call each and every day that you are absent,
no exceptions.
On your return to work, you must be able to provide
your supervisor with proof that your absence was indeed
necessary.

Gerdes further credibly testified that he passed this memoran-
dum to all foremen and told them to read it to all employees
(because some of them could not read).
Gerdes further identified a memorandum that he issued to all
LSD foremen and general foremen on the subject of absentee-
ism. Dated February 2, 1993: it states, in its entirety:

It has become quite evident that many supervisors are
not issuing warning notices to frequent offenders. If a per-
son misses three days (06) in a 30-day time period, a
warning notice should be issued. A second notice could
result in termination. Please review and explain the 5–
0921–0992 and 10–0926–0992 memos to all employees.
Your cooperation is expected.

Gerdes testified that he circulated this memorandum, with
Terry’s two 1992 memos on absenteeism, to all of his subordi-
nate foremen and saw to it that they conducted meetings with
their crewmembers on the topic.
Despite the above-quoted memoranda, and certain testimony
by Terry and Gerdes, that employees are required to present
documentation for each absence, Perera testified that during the
last half of 1992 and the first half of 1993, he was absent at
least twice a month, and sometimes three times in a month. On
none of those occasions was he asked for documentation for his
absences and on none of those occasions did he receive a warn-
ing notice for the absenteeism. Further, Perera testified that he
was absent because of an injury during the last 4 months of
1993, and he was not asked to supply any documentation for
those absences. None of this testimony was contradicted by
Respondent’s witnesses or exhibits. Also, as quoted below,
Imhoff admitted on cross-examination that, in the electrical
department, the requirement of documentation was not en-
forced on a “serious” basis until 1995.
Records of electrical department call-ins are maintained in
call-in logs. One “log” is created for each day by the clericals in
the department’s main office. Several of the call-in logs were
introduced into evidence by both parties. Clerk Gayle Di-
gregorio testified for Respondent (vol. 151) that, during the
periods in question, she or clerk Jan Adams (who did not tes-
tify) arrived at work as early as 6 a.m. to accept call-ins. Di-
gregorio and Adams recorded the employee’s badge number,
name, the name of the employee’s foreman, the reason for the
call-in (such as “sick” or “car trouble” or “late” or “personal
business”), and the initials of the clerical who took the call,
usually Digregorio or Adams. Unless the employee was taking
an unscheduled vacation day, the clericals did not call a fore-
man to report that one of his employees had called; the foremen
AVONDALE INDUSTRIES

1215
would call the clericals to see if an absent employee had called
in. Digregorio denied that she had ever knowingly failed to
enter an employee’s call in the call-in log; she testified that she
knew “it could mean a man’s job.” Digregorio testified that she
was present when Adams or other clerical employees took em-
ployees’ calls and followed the same procedures. Digregorio
was credible in all of this testimony.
(a) Perera’s first warning notice for absenteeism
On Monday, June 14, at a time that he was still assigned to
the crew of Imhoff, Perera was absent. Perera testified that he
called in to the office and reported that he would be absent. The
General Counsel introduced the electrical department call-in
log for June 14; it does indicate that Perera called in “sick” on
that date. On his MCR for June 14, Imhoff coded Perera “06”
(unexcused). Perera was also absent on June 16. Perera testified
that he again called in, but the call-in log for June 16 does not
reflect that any such call was made. I discredit Perera’s testi-
mony that he called in on June 16.232 Perera was absent again
on June 21; he acknowledged that he did not call in on that
date. As well as Perera’s absence of June 14, his absences of
June 16 and 21 were coded “06” by Imhoff.
On June 30 Imhoff presented Perera with a warning notice
for a violation General offense-1 of the Avondale Employees’
Guide. The warning notice cited: “3 unexcused absences [for]
the month of June—Dates being 6–0914, 6–0916, 6–0921 of
1993.” Perera testified that he told Imhoff that he had called in
June 14 and 16; Imhoff replied that he was just doing as he was
told. Perera testified, and it is not disputed, that Imhoff did not
tell him that he should have presented documentation for his
absence of June 14 (or June 16 or June 21).
Imhoff, who was not a supervisor at the time that he was
called by Respondent, testified (vol. 148) that he usually coded
an employee as “05” (excused) if the employee called in. Im-
hoff testified that he coded Perera “06” on June 14, even
though Perera had called and reported that he was ill, because
of Perera’s “chronic abuse of absenteeism.” Imhoff testified,
“[I]f it only happened once or twice, he would have got an `ex-
cused.”’ Imhoff testified that, when he presented the June 30
warning notice to Perera he told Perera that his absenteeism had
to stop, but he did not testify that he then also told Perera that
he must furnish documentation for each absence.233
On cross-examination Imhoff was asked and he testified:

Q. And the way you could decide whether or not to
give the citation was by looking at your MCR. Is that cor-
rect?
A. Correct.
Q. Now, you mentioned that sometimes people did
bring in documentation for their absences?
A. Sometimes they did. At that time it wasn’t depart-
ment policy to have it done so.
Q. And when you say it wasn’t department policy at
that time, do you mean in 1993?

232 Aside from the fact that I believe Respondent’s business records
to be accurate, I was most unfavorably impressed by Perera’s testimony
about his absences. The element that goes far in coloring Perera’s
credibility is his testimony, as discussed below, that a doctor misdated
an excuse three times.
233 Imhoff testified that Perera brought him no documentation for his
June 14 absence, but, contrary to the assertion in Respondent’s brief,
Imhoff did not testify that Perera’s failure to bring in such documenta-
tion had anything to do with his issuance of the June 30 warning notice.
A. Correct.
Q. And, if you know, could you tell us . . . when it be-
came department policy to bring in documentation for ab-
sences? . . .
A. I would say maybe early ‘95 was when it really be-
came serious about requiring it.

Imhoff testified that the department became “serious” in early
1995 after another memorandum was issued by Terry.
Perera’s First Warning Notice for
Absenteeism—Conclusions
Knowledge of Perera’s extensive union activities is not de-
nied. Perera wore prounion insignia, something for which so
many supervisors in this case are found to have threatened em-
ployees. As quoted above, Perera spoke up to Imhoff and Terry
in favor of the Union, and he was on Terry’s list of prounion
supporters. Perera even was pictured in the July 18 issue of the
local newspaper as he campaigned at Respondent’s main gate
on the day of the June 25 Board election. As he engaged in that
campaigning, Paint Department Foreman Laborde and Imhoff
saw Perera’s election-day campaigning; Laborde told Perera
that he was “crazy,” and Imhoff reminded him that, at least, he
was not being paid for his time campaigning. In view of the
great deal of the proven animus toward those who favored the
Union, in general, and in view of the proven specific animus
toward those who wore prounion insignia, in particular, I find
and conclude that the General Counsel has presented prima
facie cases of unlawful discrimination against Perera for each
of the warning notices that Perera was issued, and the burden
shifts to Respondent to demonstrate by a preponderance of the
evidence that it would have taken the same actions against Per-
era even in the absence of his known protected activities. Re-
spondent’s defenses must therefore be examined.
On June 14, Perera called the electrical department office to
report that he would be absent that day, and he was. Imhoff
testified that usually, if an employee simply calls in, he is given
an “05” (excused absence) on the daily MCR. Perera was coded
“06,” Imhoff testified, because Perera was guilty of “chronic”
absenteeism. This testimony by Imhoff was directly impeached
by the cross-examination of Gerdes (vol. 123) where Gerdes
admitted, without qualification, that Perera should have been
coded “05” because Perera had called in “sick” on June 14.
Also, although Respondent introduced hundreds of MCRs,
none was introduced to indicate that, in any objective sense,
Perera’s absenteeism had reached the “chronic” level. Cer-
tainly, there is no record of Perera’s having previously received
a warning notice for his “chronic” absenteeism. Nor is there
any credible evidence that, on June 14, Imhoff had held some
subjective sense that Perera’s absenteeism was in a “chronic”
state. Certainly, Imhoff did not give Perera an oral warning
before June 14, something the supervisors insist that they do
before issuing written warnings. And, certainly, Imhoff had not
told Perera that his absenteeism, although not rising to the level
of deserving a warning notice, had risen to the level of subject-
ing him to receiving an “06” when, otherwise, he would have
received an “05” for his absences.
Perera’s warning notice of June 30 was not issued because of
any failure on his part to bring in documentation for his absence
of June 14. The above-quoted October 26, 1992 memorandum
by Terry does not say that documentation is required for each
absence. The memorandum says that call-ins are required for
each absence, with “no exceptions,” but it says: “On your re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1216
turn to work, you must be able to provide your supervisor with
proof that your absence was indeed necessary.” (Emphasis
added.) The plain inference from the notice is that documenta-
tion will be required when an absent employee is asked for it.
Perera was not asked to provide documentation, or given the
opportunity to “provide” documentation, for his June 14 ab-
sence.234 Instead, Imhoff recorded the “06” before he gave Per-
era a chance to bring in the documentation (again, even though
Perera had called in). When Perera appeared the next day, Im-
hoff did not ask Perera for documentation; Imhoff did not tell
Perera that, contrary to past practices, Perera had been coded
“06” on June 14; Imhoff did not tell Perera that, if he did not
want the warning notice held against him in the future, he
should produce documentation.
There is even further evidence that documentation for ab-
sences was not really required of electrical department employ-
ees, and this is evidence that requires no inference: (1) Imhoff
did not testify that Perera’s failure to bring in documentation
for his June 14 absence had anything to do with his coding
Perera’s absence “06” on that date or that Perera’s failure to
present documentation had anything to do with the warning
notice; and (2) Imhoff admitted that the department was not
“serious” about requiring documentation until 1995.
I find that the General Counsel has shown that Perera was
coded “06” on June 14 on a pretextual basis. As the June 14
coding of Perera’s absence as unexcused was an indispensable
part of the reason for the issuance of the June 30 warning no-
tice, the General Counsel has also shown that the warning no-
tice was issued also on a pretextual basis. I therefore find and
conclude that, by its issuance of the June 30 warning notice to
Perera, Respondent violated Section 8(a)(3) of the Act.
(b) Perera’s second warning notice for absenteeism
Perera was absent again on Monday, July 19; he testified,
“My knee was swollen; I couldn’t walk.” On Friday, July 23,
Perera was absent again; he testified: “Again, my knee was
swollen.” On Monday, July 26, Perera was absent again; he
testified: “My knee was swollen again.” Perera testified that on
the days of each of these absences he called in to the office to
report that he would be absent because of his physical condi-
tion. Respondent introduced the call-in logs for July 19 and 26;
they reflect that Perera called in to report that he was going to
be “late” on those days. Respondent introduced the call-in log
for July 23; it reflects no call by Perera. I credit the call-in logs
over Perera’s testimony; I find that Perera called in on July 19
and 26, but only to say that he would be late, and he did not call
in at all on July 23.
On the MCRs for July 19, 23, and 26 Imhoff coded Perera’s
absences as “06.” On July 28, Perera was presented with an-
other warning notice by Imhoff. The warning stated: “Em-
ployee missed 3 unexcused days in a one-month period. Due to
2 violations for unexcused absences and 1 for safety, this will
be your final warning notice.” Perera testified that, when Im-
hoff gave him this second warning notice, he told Imhoff that
he had called in on all 3 days; Imhoff again told Perera that he
was just doing as he had been told. Perera testified without
contradiction that Imhoff did not tell him that he should have

234 Other evidence that documentation for absences was not really
required by Perera’s supervisors lies in the fact that Perera acknowl-
edged having many absences in the year before June 14, and his testi-
mony that he never was required to produce documentation was not
disputed.
presented documentation for any of the three absences that
were the subject of the warning notice that he was then receiv-
ing.
Imhoff testified that he issued the warning notice of July 27
to Perera because the MCRs of July 19, 23, and 26 showed
“06” for each day. Imhoff did not testify that Perera’s failures
to bring in documentation for his July absences had anything to
do with the July 27 warning notice.
Perera’s Second Warning Notice for
Absenteeism—Conclusions
When an employee calls in and says that he will be late, and
then he does not appear at all, he has hardly offered an excuse
for his absence. Although Imhoff admitted that he sometimes
had coded employees “05” under such circumstances, there is
no reason to believe that, even absent his union activities and
sympathies, Perera would have been afforded such indulgence.
On June 21 Perera was absent without calling at all, as I have
found above; less than 30 days transpired before his July 19
“late” call-in. Perera’s July 26 “late” call-in was made on a
Monday after he had been absent without calling in (“late,” or
otherwise) on Friday, July 23. It seems to this trier of fact that
Perera was playing something of a game of “King’s-X,” or
“magic word” with his practice of “late” calls when he was not
going to come to work at all. I shall recommend dismissal of
the allegation that Perera’s warning notice of July 27 was is-
sued in violation of Section 8(a)(3).
(c) Perera’s third warning notice for absenteeism
During the week of February 22–0926, Perera worked on the
first shift under Foreman Jerry Rhoto Jr. Perera was absent on
February 22 and 25; the call-in logs for those dates reflect no
call-ins by Perera. Perera testified that he did not recall the
absences of February 22 and 25 and, of course, the General
Counsel does not contend that Perera did call in on those dates.
Rhoto recorded both absences as “06.”
On Monday, February 28, Perera began working under
Foreman Joe Hanson on the 11 p.m. to 7 a.m. (third) shift.
Gerdes testified that when employees on the third shift are un-
expectedly absent, they are permitted to call in by 7:30 the next
morning and “retroactively” (as I use the word) explain why
they had been absent. This retroactive call-in procedure exists
because no one is in the electrical department office to take
such calls from about 3:30 p.m until about 6 a.m. the following
day. (Contrary to the contention of the General Counsel on
brief, although Terry testified (vol. 93) that there is no “speci-
fied time” by which third-shift employees are required to call
in, Terry was hardly testifying that there was no requirement
for third-shift employees to call in whatsoever. The conflict
between Terry and Gerdes on this point is resolved by finding,
as the employees assuredly knew, that they should call in
within a reasonable amount of time after the electrical depart-
ment office opens at 6 a.m., and certainly before their foremen,
who marked the MCRs, would be expected to leave the prem-
ises in the mornings.)
Hanson credibly testified (vol. 153) that, when he works the
11 p.m to 7 a.m. shift, he does not code absences on his MCRs
until the morning following an employee’s failure to appear.
Hanson then checks with the office to see if an employee has
called in that morning to retroactively explain his absence. If
such calls are received before he turns in the MCR and leaves
the premises (as late as 8 a.m.), he will mark the MCR as “05”
AVONDALE INDUSTRIES

1217
or “08” (again, the latter being for personal illnesses and the
former being for any legitimate-sounding reason).
Perera was absent for the shift that began at 11 p.m. on
Thursday, March 3 and ended at 7 a.m. on March 4. Perera
testified that he had called the electrical department office dur-
ing the morning of March 3 to report that he was ill and would
not be at work that night. The call-in log for March 3 reflects
no call by Perera, and I discredit his testimony that he called in
on that date, at any time.
Hanson testified that on the morning of March 4, before he
(Hanson) left the premises, he called the electrical department
office, and the clerical “told me who called in and who didn’t.”
Hanson further testified that “pretty quick” thereafter, he re-
ceived a call from Gerdes who said that Perera had a bad absen-
teeism record and that he (Gerdes) was drafting a warning no-
tice for Perera, “and that if he (Perera) continues to miss time to
advise him.” (Gerdes testified that General Foreman Kenneth
Danos told him of the problem with Perera’s absenteeism re-
cord; Danos did not testify, but I reject the General Counsel’s
argument on brief that I should draw an adverse inference from
that fact; of course, anyone who happened to have been in the
office when Hanson called on March 4 could have informed
Gerdes of the problem.)
The call-in log for Friday, March 4 reflects that Perera called
in “sick” on that day. (Perera did not testify that he made any
call-in on March 4.) Consistent with the above statements of
how call-ins are handled for the 11 p.m. to 7 a.m. shift, Hanson
credibly testified that Perera’s call that is recorded on the
March 4 call-in log must have been received after he left the
premises the morning of March 4.235 Hanson left the premises
on the morning of March 4 without entering any code for Per-
era’s absence from the March 3 shift. As Respondent’s supervi-
sor for timekeeping Mary Arnold testified (vols. 18, 154, 156),
an absence for which an MCR shows no code is treated as if the
supervisor had entered “06.”
Perera was also absent for the shifts that began at 11 p.m. on
Friday, March 4, Monday, March 7, and Tuesday, March 8.
Perera appeared for work on March 9.236 On March 10, at 6:45
a.m., as the March 9 shift was ending, Hanson presented Perera
with his third warning notice for absenteeism. The notice had
been drafted and signed by Gerdes. In the space for “Date and
time of Offense” Gerdes cited Perera’s absences of February 22
and 25, and March 3 (but not March 4, 7, or 8). In the space for
“Reason for Warning,” Gerdes had written: “If employee is
absent on or before July 27, 1994, immediate termination will
take place. Absence for any reason on a scheduled workday.
Final Final Notice.” (Double underlines in original.)
Hanson credibly testified that early on the morning of March
10, he had called the office to advise Gerdes that Perera had
returned for the shift that had begun at 11 p.m. on March 9.
Gerdes told Hanson that he had drafted the notice that he had
mentioned on March 4, and he wanted Hanson to issue it. Han-
son received the warning notice from Gerdes and gave it to
Perera. Hanson credibly testified that, as he gave Perera the
March 10 warning notice for his absences of February 22 and
25, and March 3, he further told Perera, “You have got a cita-
tion coming for those three days, and if you don’t bring me

235 The Tr., vol. 153, p. 38,761, L. 2, is corrected to change “3394”
to “3/3/94.”
236 Perera testified that he returned to work on March 8, but the re-
cords are persuasive evidence that he did not.
something in for the other [the absences of March 4-8], you
will probably get another one for the rest of the time you
missed.” Perera told Hanson that he already had an excuse for
his first three days of absence.237
Perera testified that during the morning of the day that he re-
turned to work (which date he erroneously placed at March 8),
he visited his doctor to get “released” to go back to work. (Per-
era had not testified that a doctor had told him not to go to
work.) The release form that Perera secured, on whatever date,
is from a local clinic. It is entitled “Certificate to Return to
Work or School.” I underline here the blanks that the doctor
filled in or marked:

Mr. Perera, Philip has been under my care from 3–10–
94 to [space left blank] and is able to return to work about
3–10–94. Pt. [patient] ill since 3–2–94.
[Doctor’s (illegible) signature] Date 3–10–94.

Perera testified that he brought this doctor’s release to Hanson
at the beginning of what would have been, if Perera is to be
credited at all, the shift that began at 11 o’clock on March 9.
Hanson credibly testified that Perera did not bring in the
(thrice-dated) March 10 doctor’s release until the March 10
shift began at 11 o’clock. Even if Hanson had not so testified, I
am constrained to state that I do not believe Perera’s testimony
that the doctor had made a mistake in dating the release “3–
0910–0994” three times. If it were true that Perera had pre-
sented the March 10 release on March 9, he would assuredly
have mentioned it to Hanson on the morning of March 10 when
he got the warning notice. (Perera was quick to claim that he
had called in when he was presented with his other warning
notices.) I believe, and find, that the doctor dated the release
(three times) as March 10 because that was the day, and the
only day,238 that Perera visited the doctor during this sequence
of events. I believe that Perera got the warning notice at 6:45 on
March 10, and then he went looking for documentation that he
had been ill during his latest period of absences. And then,
Perera testified falsely about all of this at trial.239
Perera’s false testimony about the dating of the doctor’s re-
lease does not, however, end the inquiry. On cross-examination
Hanson was shown his MCR for March 3. On it, two employ-
ees are listed as absent, Perera, whose badge number is 4397,
and Joseph A. Pennington, whose badge number is 955. On his
MCR, Hanson coded Pennington’s absence “05,” and, as noted,
he did not code Perera’s absence (which failure is the equiva-
lent of marking it “06”). Hanson testified that when he called
Adams, the office clerk, on the morning of March 4, he: “Just
asked her if these two people called in, 955 and also 4397.”
Hanson first testified that Adams had told him that Pennington
had called in, but then he acknowledged that he could not really

237 Perera further testified that, apparently after he got the warning
notice from Hanson, he saw Gerdes who “made reference” to Perera’s
absences of the year before. On brief, the General Counsel argues that
whatever Gerdes said was some sort of admission by Gerdes, but Perera
did not testify about what the “reference” was, and his testimony is too
vague to be meaningful.
238 I also do not believe other testimony by Perera that he visited the
doctor on March 3; if he had, the doctor would not have stated on the
above-quoted release that Perera had been under his care only from
March 10.
239 Ultimately, the credibility resolution made in this paragraph
makes no difference to the holding on Perera’s March 10 warning no-
tice. I enter it because of the importance of Perera’s credibility to the
allegation of a plant-closure threat by Bossier, as discussed above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1218
remember if Adams had done so. Hanson then stated that Pen-
nington might have told him during the shift of March 2 that he
was going to be absent, and that is why he coded Pennington’s
absence “05” on March 3, but he acknowledged that he really
could not remember if Pennington had done so. The call-in log
dated March 4, which contains the call-ins for those who
missed the shift that began on March 3, shows that Pennington,
as well as Perera, failed to call in as required. (Actually, as
explained above, Perera called in on the morning of March 4,
but after Hanson had left the premises.)
Perera’s Third Warning Notice for
Absenteeism—Conclusions
The putative basis for the March 10 warning notice was Per-
era’s absences of February 22 and 25, and March 3. The Gen-
eral Counsel admits that Perera did not call in for his absences
of February 22 and 25, and I have found that Perera also did not
call in timely for his absence of March 3. According to the call-
in log for March 3, however, neither did Pennington. Hanson
coded Pennington “05,” but he coded Perera “06.” This is a
prima facie case of discrimination, unlawful discrimination
given the evidence of Respondent’s animus that exists in this
case.
Given the existence of this prima facie case, under Wright
Line Respondent has the burden of coming forward with a pre-
ponderance of the evidence that Perera would have been issued
the March 10 warning notice, even absent his very extensive
union activities. At minimum, part of this burden includes pro-
bative evidence of why, on March 3, Hanson coded Pennington
“05” but he coded Perera “06.” Neither Hanson’s incorrect
guess that Pennington did call in, nor his rationalization that
Pennington must have given him advance notice of his March 3
absence, is such evidence.240 I find, therefore, that Respondent
has failed to come forward with probative evidence to rebut the
General Counsel’s prima facie case that Perera’s March 10
warning notice was unlawfully issued, and I conclude that the
warning notice was issued to Perera in violation of Section
8(a)(3).
(2) Perera’s warning notice for union solicitation
Perera testified that on March 15, shortly after his 11 p.m. ar-
rival on his shift:

I was walking to my work area where I was going, and
I took a cigarette out of my pocket, and also out of my
pocket fell a union sticker. And one of the other guys
[electrician Joe Smith] was working, and he asked me
what was that, and I just showed it to him.
I said, “It is a union sticker.”
And as I was putting it back in my pocket Mr. Hanson
came up behind me and said, “I saw it.”
And I said, “Saw what?”
And he said, “I saw you give that man [Smith] a union
sticker.”
I said, “I didn’t give him anything.”

240 It is true that I have accepted Hanson’s “rationalization” that Per-
era must have called in on March 4 after Hanson left the premises. In
that case, however, Perera had not even testified that he had called in
on March 4; instead he tried to backdate his call-in to March 3, just like
he tried to backdate his doctor’s release to March 8 or 9, with false
testimony. Moreover, Hanson’s testimony about leaving the plant at 8
o’clock was testimony of how the system had to work, and no more.
And he told me, “Well, go ahead back to work now.” I
went on back to work.

On cross-examination, Perera acknowledged that Smith had
been working when he was passing by. Perera testified that his
exchange with Smith took “[a] minute or two” before Hanson
approached and said something. Smith was not called to testify.
On March 16, Hanson issued to Perera a warning notice that
was completed and signed by Gerdes, and it was also signed by
Hanson. On the warning notice Gerdes checked the block for
Major offense-2 (“Intentional negligence, inefficiency, or fail-
ure to complete job assigned.”) Gerdes cited 11:15 on March 15
as the time of the offense; in the space for reason for warning,
Gerdes stated: “Intentional Negligence; this is your final warn-
ing notice. If you violate any other company policy, you will be
immediately discharged.”
Hanson testified that as he was making his rounds on March
15, he came upon a compartment where Perera and two other
employees were talking. Perera was out of his work area; the
other employees were not. Perera was showing the other two
employees some paper, but as Hanson got nearer, Perera put the
paper in his shirt pocket. Hanson denied seeing Perera pick
anything off the deck. Further according to Hanson:

When I came up I asked him why he was out of his
work area and what he was doing in there talking. And he
said, “Nothing.”
And I said, “Well, what was that that you just stuffed
into your pocket?” And Phil looked at me kind of funny
like, and he pulls out these union stickers that he had.

. . . .

Well, I said, “[Y]ou know that that is against company
policy. You are supposed to be working and not solicit-
ing.” And [I] told him to go back to his work area where
he belonged.

The stickers that Hanson saw were “Union-Yes” stickers, the
kind that is so often mentioned in this decision. Hanson called
Gerdes at home and told him what had happened; the next
morning Gerdes called Hanson back and said that he was send-
ing to Hanson another warning notice to issue to Perera.
On direct examination Gerdes acknowledged that Hanson
had told him that Perera had been distributing “Union-Yes”
stickers to employees who had been working. Gerdes testified
that Perera was issued the above-quoted warning notice: “Be-
cause he was disruptive to the employees during working
time.”
On cross-examination Gerdes testified that Perera was issued
the March 16 warning notice because: “Number one, he was
distributing on Company time. Number two, he was not work-
ing when he was supposed to be.” Although he acknowledged
that he drafted the warning notice, Gerdes testified that he did
not know why Perera was cited for “intentional negligence,”
and Gerdes further testified that he did not know why there was
no reference on the warning notice to Perera’s having violated
Respondent’s no-solicitation rule or no-distribution rule that are
stated as Major offenses-20 and 21 of the Avondale Employ-
ees’ Guide. Gerdes further acknowledged that Perera could
have been issued a warning notice for violation of General
offense-4 (wasting time).
AVONDALE INDUSTRIES

1219
The General Counsel’s Evidence of Disparate Treatment—
Solicitations and Distributions
As noted in the introductory section of this decision, Re-
spondent maintains facially valid no-solicitation and no-
distribution rules. The General Counsel introduced evidence,
however, that shows that the rules were not enforced against
many solicitations and distributions during 1993 and 1994.
Working time and area solicitations and distributions proved
in the electrical department were: (1) Alleged discriminatee
John Joseph credibly testified (vol. 62) that Foreman Carl
Shropshire sometimes sold candy after safety meetings. (2)
Alleged discriminatee Sidney Jasmine credibly testified (vol.
52) that Foreman Jerry Kaywood regularly sold tickets to Fri-
day night suppers on working time; Kaywood did this once
during the 2-week period before Jasmine testified. (3) Jasmine
(and other employees) also credibly testified that an employee
who worked in the Casualty Control office on board a ship
regularly sold food items during working time. During the
month before he testified Jasmine saw Electrical Department
Foreman Jerry Rhoto Jr. purchase eggs from that employee
during working time. (4) As mentioned in the case of alleged
discriminatee John Joseph, on cross-examination, Electrical
Department Foreman Delling Thibodeaux testified (vol. 130)
that notices to electrical department employees are usually
posted at a toolroom. Annually, from October through Decem-
ber, Respondent posts at the toolroom United Way flyers. Also,
Thibodeaux acknowledged that sometimes when electrical
department employees are retiring, other employees post no-
tices soliciting contributions toward gifts for the occasions. (5)
General Foreman Mark Poche testified (vol. 77) that during the
preelection period he supplied the toolroom with “Vote-No”
stickers to be picked up at the window by any employee who
wanted them. The toolroom is closed during the nonworking
time of lunch, but open throughout working time. (6) Also,
throughout the workday, Poche would give “Vote-No” stickers
to any employee who asked for them. (7) Alleged discriminatee
Leroy Clark credibly testified (vol. 10) that he was in a working
area when he was offered a “Vote-No” sticker by his foreman,
P.—J. Sprunk.
There was also credible testimony about solicitations and
distributions in other departments: (1) Current employee Mi-
chael James Boudreaux (not the discriminatee Michael James
Boudreaux) credibly testified (vol. 46) about gambling pools
that were conducted in the sheet metal department during 1993
and 1994. The pools (including football and race-car pools,
pools based on the games of the company softball team, and
pools based on the Louisiana lottery) were operated from the
toolroom, during working time. Boudreaux saw employees and
supervisors, including Foremen Hector Navarro, Clifford Autin,
Eli Duhe, and Sal Gaspar, go to the toolroom during working
time to pay for squares on betting sheets. Also, the toolroom
employees, or others who operated other pools, went around to
working employees and supervisors (including Navarro and
Autin), collected money for the wagers that the employees and
supervisors would make, and had them initial their chosen
squares on the betting sheets. Boudreaux had retained copies of
many betting sheets, to record that he had paid for his squares
(and when he paid); many of these copies were placed in evi-
dence. Boudreaux identified the initials of Navarro and Autin
on the sheets; he also testified that sometimes Navarro and
Autin were present when he placed his bets at the toolroom
window (which is only open during working time). On cross-
examination Boudreaux was asked how long it took to have
money collected for bets in the work area; he replied: “It de-
pends on how long he wanted to stand there and talk to you.
Five minutes, maybe.” (2) Retired employee Adeline Plaisance
credibly testified that in the machine shop, during working
time:

I would take and go around and collect if somebody
was out of work for a while, and, say, two or three months.
They had to be out about three months. And to help them
out, I would go around the shop and collect a dollar, $2,
whatever anybody wanted to give, and I would give them
the money.
Or I collected for flowers; I collected for a guy that got
robbed at Christmas time. I passed the collection for that,
to help him out. All his gifts was stolen, and he had chil-
dren. And let’s see. Anybody retired, I would collect.
There were numerous things that I would collect for.
Anytime they needed a collection passed, I was the one
that always passed it.

Plaisance testified that supervisors, as well as employees, con-
tributed to these solicitations that she undertook during working
time. Plaisance was never disciplined for conducting these so-
licitations. (3) Current employee Eric Evans credibly testified
(vol. 59) that Shipfitting Department General Foreman Clark
Usee sold hog-cracklings (dried skins) during working time.
Usee has done this twice a year for 8 years, and Evans bought
some as late as November 1994.
Perera’s Warning Notice for Union
Solicitation—Conclusions
I do not believe Perera’s testimony that when he was ap-
proached by Hanson on March 15, he was only responding to
the question of another employee about what it was that had
fallen out of his pocket. I agree with Respondent that Perera
was soliciting, or distributing literature, or attempting to dis-
tribute literature, for the Union. Nevertheless, solicitations and
distributions had been widely permitted by Respondent before
and after March 15, especially in the electrical department, as
the above credited testimony of supervisors and employees
demonstrates. It is therefore clear that Perera was issued the
warning notice of March 14 in an exercise of disparate treat-
ment.
Further evidence of discrimination against Perera in the issu-
ance of the March 16 warning notice lies in Gerdes’ use of
“intentional negligence” as the stated basis for the warning. In
no sense of the (vague, self-contradictory) term could Perera’s
conduct be classified as negligence, “intentional” or otherwise.
Perera’s conduct could have been appropriately described as
solicitation or distribution, and if either Respondent’s no-
solicitation rule or its no-distribution rule could have been val-
idly invoked, one of them would have been. Obviously, Gerdes
knew (or was told) that he could not use those facially appro-
priate categories of the Avondale Employees’ Guide because
Respondent had allowed other solicitations and distributions
during working time and in work areas. Gerdes still wanted to
cite Perera for something. As Gerdes admitted, Perera’s con-
duct could have been categorized under the Avondale Employ-
ees’ Guide as the general offense of wasting time. Gerdes did
not cite Perera for such a general offense because, it is also
obvious, he wanted to cite Perera for a major offense under the
Avondale Employees’ Guide. To do this, Gerdes invoked the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1220
entirely inappropriate rule against “intentional negligence.”
This groping for a justification241 for the warning notice is a
further indication that it had no valid basis.
I find that the General Counsel has shown to be pretextual
the evidence with which Respondent has come forward to meet
the prima facie case that the March 16 warning notice was is-
sued to Perera unlawfully. I therefore conclude that the warning
notice was issued in violation of Section 8(a)(3).
3. Employees discharged for violence, threats,
or insubordination
a. Rene Rubi’s discharge for insubordination
Rene Rubi (vol. 7) was employed as a shipfitter until he was
discharged on February 9, 1994. The second complaint, at
paragraph 141, alleges that by discharging Rubi, Respondent
violated Section 8(a)(3). The General Counsel contends that
Respondent discharged Rubi because of a single expression of
prounion sympathy to his foreman. Respondent answers that its
supervisors had no knowledge of any prounion sympathies of
Rubi at any relevant time and that Rubi was discharged because
he failed to do assigned work and was insubordinate to his
foreman. The General Counsel replies that the defense is a pre-
text because Rubi was not insubordinate and that his alleged
conduct was provoked by the foreman; alternatively, the Gen-
eral Counsel replies that Rubi was treated disparately because
other employees who engaged in similar conduct were issued
lesser, or no, discipline. Ultimately, I find and conclude that the
General Counsel has not presented a prima facie case that Rubi
was unlawfully discharged, and I shall recommend that the
allegation be dismissed.
Rubi worked under Foreman Donald (Dooley) Euvino. Rubi
did not wear prounion insignia, and he engaged in no other
types of union activities of which Respondent’s supervisors
could possibly have been aware. Rubi did testify that, for sev-
eral weeks before his discharge, Euvino asked him several
times how much Rubi’s wage rate was. On one of these occa-
sions:

Dooley come and ask me again, “Hey, Rene, I need to
see your check.”
I tell again, “It is not your business, man. Why you
come and ask me for my money, anyway? You no pay me.
Anyway, you no ask me no more, man; I vote to the Un-
ion.”
He left away. That is it.

Rubi’s English was minimal, but the General Counsel did not
present him with a translator, and I simply can make no sense
of the quoted testimony. Assuming that the exchange to which
Rubi was referring happened at all, it happened in early Febru-
ary 1994, some 7 months after the June 25 Board election, and
no other election was scheduled at the time. Therefore, I cannot
accept Rubi’s testimony as an indication that he would vote for
the Union at any time in the future if Euvino did not leave him
alone. If Rubi meant the past tense of “vote,” however, his
testimony still makes no sense; certainly, he was not telling
Euvino that he should not ask him questions because he had
voted for the Union some 7 months before.

241 Although Gerdes was cross-examined specifically on the point,
Respondent on brief makes no suggestion why Perera was issued a
warning notice for “intentional negligence” rather than for solicitation
or distribution, or for wasting time.
Euvino is the supervisor who first told Rubi that he was dis-
charged. (General Foreman Leroy Trepagnier investigated and
confirmed the discharge.) Euvino (vol. 119) credibly denied
that Rubi ever said anything like what Rubi described, includ-
ing specifically the reference to Rubi’s voting for the Union.
Moreover, Euvino testified that, before the Board election, Rubi
asked him for two “Vote-No” stickers. When Euvino gave him
the stickers, Rubi placed both of them on his hardhat. Rubi
wore the “Vote-No” stickers on the day of the election, and he
was wearing them on the day that he was discharged. None of
this testimony by Euvino was rebutted, and I found it credible.
(For possible purposes of review I here state that I also found
credible Euvino’s testimony about the conduct of Rubi on the
day of Rubi’s discharge.)
As the General Counsel has failed to present a prima facie
case, I shall recommend dismissal of the allegation that Re-
spondent discharged Rubi in violation of Section 8(a)(3).
b. Edwin Brown’s discharge for disobeying and
cursing a guard
Edwin Brown (vol. 5) was a crane operator in the plate shop
until he was discharged on June 8, 1993. The first complaint, at
paragraph 27, alleges that by discharging Brown, Respondent
violated Section 8(a)(3). The General Counsel contends that
Respondent discharged Brown because of his known union
activities and expressions of sympathy which included his
wearing prounion insignia and his expressing prounion sympa-
thies directly to his supervisor. Respondent answers that its
supervisors had no knowledge of any union activities or sympa-
thies of Brown at any relevant time and that Brown was dis-
charged solely because he cursed and refused to obey a security
guard. The General Counsel replies that Brown was treated
disparately on both accounts because other employees were
allowed to disregard equivalent instructions of security guards,
and other employees were allowed to speak profanely to guards
but they received lesser, or no, discipline. Ultimately, I find and
conclude that the General Counsel has not presented a prima
facie case that Brown was unlawfully discharged because
Brown engaged in no union activities and Brown made no ex-
pressions of prounion sympathies to Respondent’s supervisors.
Brown reported to Foreman Ronny Roux and General Fore-
man Barry Bartholomew. Brown testified that he regularly took
literature from union agents at the gate during the organiza-
tional campaign when Roux and Bartholomew were present
and observing. Brown further testified that, at one employer
campaign meeting, he asked Bartholomew: “[D]id he still think
I didn’t deserve a raise?” Brown also testified that on May 3,
Roux showed to him a letter from Union Representative Phillip
Miller to the Navy; in the letter Miller had made remarks criti-
cal of Respondent’s management. After showing Brown the
letter, Roux asked Brown if Brown wanted a person like Miller
to represent him. Brown testified that he responded that repre-
sentation by Miller “couldn’t hurt.” Brown further testified that
on May 21 Roux passed out company handbills to several em-
ployees. When Roux got to Brown, Brown asked him “why he
keep giving me these handbills.” Roux replied that he was do-
ing what he was told. Brown took the handbill, but immediately
wadded it up and threw it in a trash can. Roux told him to go on
back to work. Brown further testified on direct examination that
Roux told him “several times” that he could not be reading
union handbills on working time. On cross-examination, how-
ever, Brown acknowledged that his pretrial affidavit includes:
AVONDALE INDUSTRIES

1221
“I always took the handbills with me to my work area, but I do
not recall any supervisor seeing this.” Brown testified that he
wore two “Union-Yes” stickers on his hardhat, but on cross-
examination he acknowledged that his affidavit states, “I did
not wear any clothing to work with the Union insignia on it.”
The General Counsel did not ask Brown on redirect examina-
tion to explain the inconsistencies with his affidavit.
The unexplained conflicts with Brown’s affidavit cause me
to believe that he was not a truthful witness, certainly as far as
his testimony about his purported union activities goes. I do not
believe that he wore prounion insignia at work, nor did he read
prounion handbills in the presence of supervisors. Brown did
accept prounion handbills in the presence of Bartholomew and
Roux, and he did tell Roux that representation by the Union
“couldn’t hurt,” but this is no more than minimal union activity,
if that. (Brown wadded up a company handbill, but this was, at
most, a rejection of the Company’s propaganda, not an expres-
sion of union affinity.) Brown’s asking Bartholomew if he did
not think that he deserved a raise was simply an individual
complaint; it was not concerted activity in any sense. Finally,
the supervisors who discharged Brown, Bartholomew, and
Samuel Capaci (Respondent’s assistant director of security),
credibly denied knowledge of any prounion sympathies of
Brown.
I therefore find and conclude that the General Counsel has
not presented a prima facie case that Brown was unlawfully
discharged, and I shall recommend dismissal of this allegation
of the complaint.242
c. Chad Durocher’s discharge for insubordination and threat-
ening his supervisor
Chad Durocher (vol. 9) was employed as a layout mechanic
in the electrical department until he was discharged on Septem-
ber 23, 1993. The second complaint, at paragraph 122, alleges
that Durocher’s discharge violated Section 8(a)(3). The General
Counsel contends that Respondent discharged Durocher be-
cause of his known union activities and expressions of sympa-
thy which included: (1) in the presence of a supervisor, talking
to, and taking a union handbill from, a union organizer; and (2)
Durocher’s making prounion comments to supervisors, once in
response to an interrogation and once during an employer cam-
paign meeting. The complaint further alleges that, in violation
of Section 8(a)(1), Durocher was threatened with discharge or
other discipline if he associated with union organizers, in-
structed not to talk about the Union during working time,
threatened about such talking, interrogated about his prounion
sympathies, and solicited to campaign against the Union.243
Respondent denies that the alleged threats, interrogation, in-
structions, or solicitation occurred. Respondent denies knowl-
edge of any prounion sympathies that Durocher may have held;
Respondent asserts that, in fact, Durocher was openly opposed
to the organizational attempt. Respondent further answers that

242 For possible purposes of review, I here state that I credit the tes-
timony of guard Agnes Williams (vol. 69) over the testimony of Brown
in regard to the events of June 8. I further state that I discredit the tes-
timony of former guard Leon Harrison (vol. 33) who testified squarely
in conflict with his pretrial affidavit and offered an intelligence-
insulting explanation for that conflict.
243 A threat by Electrical Department Assistant Superintendent
Gerdes that was not directed individually to Durocher, but which Duro-
cher overheard, is discussed above as the allegation of paragraph 58 of
the second complaint.
Durocher was discharged solely because he was insubordinate
to, and threatened physical violence to, a supervisor. The Gen-
eral Counsel replies that the defense is a pretext because Duro-
cher did not threaten the supervisor, but, on the contrary, the
General Counsel contends, the supervisor threatened Durocher.
Alternatively, the General Counsel replies that, even if it finds
that Durocher, in some sense, was insubordinate to, or threat-
ened, the supervisor, the Board must nevertheless hold that
Durocher was treated disparately because other employees who
engaged in similar conduct were issued lesser, or no, discipline.
Ultimately, I find and conclude that the General Counsel has
failed to present a prima facie case that Durocher was unlaw-
fully discharged, and I shall recommend dismissal of that alle-
gation.
As an electrical layout mechanic, Durocher reviewed engi-
neering diagrams and instructed and assisted shipfitters and
tack-welders in installing metal brackets (and such) through
which cables and wires were to be routed about the ships. Until
approximately the week before he was discharged, Durocher
reported to Foreman Chester Christiansen; during his last week,
Durocher reported to Foreman Jimmy Pretlove.
Durocher testified that he wore a prounion sticker, but only
on the inside of his hardhat or on his billfold that he kept in his
pocket. Durocher testified that alleged discriminatee Michael
Molaison was his helper, but when Molaison testified he was
not asked about any expressions of prounion sympathies that
Durocher may ever have made. Indeed, after Molaison left the
stand (and could not be found for service of subpoena), the
parties stipulated that Molaison’s pretrial affidavit dated August
17, 1993, states: “In addition, Chad Durocher and I worked
together from February through April 1993. . . . Durocher was a
known company supporter. He often told me himself that he did
not want to see the Union come in to the Company.” In the
affidavit, Molaison was attempting to show that Durocher was
being treated as a favored antiunion employee, continuing at
least through the date of Molaison’s discharged, June 3. Addi-
tionally, on cross-examination Durocher was asked and he testi-
fied:

Q. Isn’t it a fact that you often told Mr. Michael Mo-
laison that you did not want to see the Union come into the
Company?
A. No, that I can recall.

This evasive claim of lack of memory was incredible, and I find
that the true answer would have been “yes.” Finally, as I dis-
cuss in deciding whether Durocher was discharged in violation
of the Act, Respondent’s witnesses Christiansen and Poche
credibly testified that Durocher regularly spoke against the
Union and wore “Vote-No” stickers, and he once asked Poche
for other “Vote-No” stickers to distribute.
Ultimately, I conclude that Durocher’s antiunion sympathies
are determinative in deciding his 8(a)(3) case, but they are not
relevant to consideration of the Section 8(a)(1) allegations in
support of which Durocher was also called to testify. The rights
of antiunion employees can be violated by antiunion employ-
ers; also, the 8(a)(1) allegations are made in the public interest,
not solely in the interest of the employee to whom the alleged
8(a)(1) conduct was immediately directed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1222
Instruction and Threat by Pretlove
Durocher testified (vol. 9) that in April Pretlove conducted a
meeting in his office. About eight employees attended. Accord-
ing to Durocher:

We had a meeting, and he warned us not to talk to
anyone besides our immediate work partner and that if we
got caught talking to anyone else, that we could be subject
to termination, and if we are caught talking union or [to]
someone affiliated with the Union, we will be terminated.

Based on this testimony by Durocher, paragraph 16 of the sec-
ond complaint alleges that Respondent, by Pretlove, “(a) prom-
ulgated a rule precluding its employees from talking about the
Union; and (b) threatened its employees with discharge if they
talked about the Union during working time.”
Pretlove (vol. 80) was asked and he testified:

Q. Do you recall have a conversation with Mr. Duro-
cher in which you told him that he could not talk about the
Union on company time?
A. No.
Q. Have you ever told Mr. Durocher when he was em-
ployed there that he could not talk about the Union on
company time?
A. Not to my knowledge. I don’t remember telling him
that, no.

Pretlove’s “no,” coming only after disclaimers of memory, was
not convincing. I credit Durocher on the point. I find and con-
clude that, as alleged, in violation of Section 8(a)(1), Respon-
dent, by Pretlove, in April 1993, (a) promulgated a rule pre-
cluding its employees from talking about the Union; and (b)
threatened its employees with discharge if they talked about the
Union during working time, although Respondent then allowed
employees to talk about other nonwork-related topics on work-
ing time.
Durocher’s Statement to Melancon
Durocher further testified that in late May or early June, he
and Electrical Department Foreman Tyrone Melancon244 had a
conversation in which Melancon asked Durocher what he
thought about the Union. According to Durocher, he replied
that “I thought it was pretty good, that I may vote for the Union
and do what is best for my family.” Melancon made a non-
committal reply. Melancon’s question to Durocher is not al-
leged as a violation of the Act. The evidence was introduced by
the General Counsel as proof of Respondent’s knowledge of
support for the Union by Durocher as recently as late May or
early June 1993. Melancon did not testify, and I found Duro-
cher’s testimony on the point to be credible.
Durocher’s Statement to Pretlove
Durocher testified that in early June, in Pretlove’s office,
when about six employees were present:

I asked him [Pretlove] about raises, and he told me
Avondale didn’t have any money for raises, and I said,
“Well, if they have money to paint ‘Vote-No’ on the water

244 This is the correct spelling of the supervisor’s name. (See GC
Exhs. 152 and 222.) In Vol. 9 of the transcript, Melancon’s name is
spelled as “Molaison” (the same spelling as the name of alleged dis-
criminatee Molaison who is also mentioned in Durocher’s testimony).
The transcript is accordingly corrected.
tower and to fight the campaign as hard as they are, they
should have money to give us raises.” And the meeting got
out of hand, and he just dispersed the meeting.

The General Counsel introduced this testimony as evidence that
would charge Respondent with knowledge of Durocher’s
prounion sympathies that he had held until early June. Pretlove
did not deny that Durocher made such a remark in his presence.
Durocher’s Interrogation by Christiansen
Durocher further testified that later in June he was told to re-
port to Christiansen’s office. When he got there:

[Christiansen] said, “I am trying to find out who is vot-
ing for the Union and who is not; have you decided what
you are going to do”
And I replied, “I am going to do the best for my fam-
ily.”
And he said, “Get back to work.”

Based on this testimony by Durocher, paragraph 45 of the sec-
ond complaint alleges that Respondent, in violation of Section
8(a)(1), by Christiansen, interrogated its employees about their
union membership, activities, and sympathies.
Christiansen (vol. 81) denied interrogating Durocher.
Christiansen testified that he attended the TIPS meetings con-
ducted by Respondent’s attorneys and followed the TIPS card
that he was given. Respondent contends that this attendance
makes it unlikely that Christiansen would interrogate any em-
ployee. All that Christiansen could remember of the instruc-
tions on the TIPS card, and the lawyer’s oral instructions, was,
however, “we shouldn’t be involved in any surveillance or
promising any, what you call gratuities or whatever.” If
Christiansen was told anything about not interrogating employ-
ees at the TIPS meeting, he did not remember it by time of trial.
Christiansen, moreover, admitted that during the preelection
period he was instructed by his superior, General Foreman
Mancuso, to find out which employees were for the Union, and
he did so. Christiansen was asked and he testified:

Q. [By Mr. Morgan]: Going back to the question, you
did receive instructions, did you not, Mr. Christensen,
from superiors to try and find out who in your crew sup-
ported the Union and who in your crew didn’t support the
Union?
A. Yes, sir.
Q. And you did that, didn’t you?
A. To the best of my ability, yes, sir.

There was no testimony by Christiansen that his superiors’
instructions to find out who was for the Union were accompa-
nied by other instructions to follow what was on the TIPS card.
When he was called pursuant to Rule 611(c) by the General
Counsel, Christiansen testified (vol. 40) that he determined
which employees favored the Union only by noting which em-
ployees were wearing prounion insignia. I believe that
Christiansen was doing more than just making mental notes of
who was wearing prounion insignia (or “Vote-No” stickers, for
that matter). Simple observation of prounion insignia required
no particular ability, much less Christiansen’s “best” ability. I
do not believe Christiansen’s denials of Durocher’s testimony,
and I credit Durocher whom I did find credible on this point.
I find and conclude that, as alleged, Respondent, in violation
of Section 8(a)(1), by Christiansen, in June 1993, interrogated
an employee about his union membership, activities, or desires.
AVONDALE INDUSTRIES

1223
Threat by Christiansen to Durocher
Durocher testified that he regularly accepted union handbills
at the gate during the organizational attempt. (Several supervi-
sors testified to doing the same.) On one such occasion, at a
point after discriminatee Michael Molaison had been dis-
charged on June 4, he accepted a handbill from Molaison who
was then working as a union representative.245 Durocher testi-
fied that Electrical Department General Foreman Mark Poche
was watching as he took the handbill from Molaison and talked
to Molaison. Later during that day Durocher and employee
Andy Bergeron were in Christiansen’s office with Christiansen;
Durocher stated that he had seen Molaison at the gate and that
Molaison had been “doing pretty good.” In response to his re-
mark, according to Durocher, Christiansen told him that,
“standing by the gate was going to get me in trouble.” Based on
this testimony by Durocher, paragraph 12 of the second com-
plaint alleges that Respondent, in violation of Section 8(a)(1),
by Christiansen, “threatened its employees with unspecified
reprisals because they aided or supported the Union.” Bergeron
did not testify.
Poche (vol. 77) did not deny seeing Durocher speaking to
Molaison outside the gate at some time after Molaison’s dis-
charge. Poche did credibly testify that during the 4 weeks be-
fore the Board election, Durocher regularly wore “Vote-No”
stickers on his hardhat, and during that period Durocher asked
him for more of such stickers, presumably to distribute. This
testimony by Poche is relevant to the issues arising from Duro-
cher’s September discharge; but it does not detract from the
evidence that, in June, Supervisor Poche observed Durocher
taking union handbills from Molaison and talking to Molaison.
Christiansen did not deny Durocher’s testimony that
Christiansen told him that he could get into trouble by standing
around the gate (when handbills were being distributed), and I
credit Durocher’s testimony on the point. Durocher had just
told Christiansen that he had been visiting Molaison who had
been passing out the handbills in front of Poche, and there is no
other explanation for Christiansen’s warning to Durocher. It is
clear enough that Christiansen was warning, or threatening,
Durocher that even being present during the protected con-
certed activity of distributing union handbills could get him “in
trouble,” and this was a threat of unspecified reprisals if Duro-
cher did it again. I find and conclude that, as alleged, Respon-
dent, in violation of Section 8(a)(1), by Christiansen, in June
1993, threatened an employee with unspecified reprisals be-
cause of the employee’s expression of interest in union activi-
ties.
Christiansen’s Solicitation of Durocher for
Antiunion Activity
Durocher further testified that during the morning of June
25, the day of the Board election, he and employee Andy
Bergeron were outside Christiansen’s office when Christiansen
spoke to him. According to Durocher:

He said, “If you guys want to redeem yourselves, I
suggest you go hold up a ‘Vote-No’ sign at the gate.”
And I asked, “What is in it for me.”
He replied, “An extra half-hour off for lunch.”
I said, “Okay.”

245 Durocher placed this event in April; however, he was clear that
the event occurred after Molaison was discharged, so it had to be after
June 3.
He said, “The signs are in the office; they have a truck
at the bottom of the ship to pick you up by the elevator at
lunchtime.”

Durocher testified that, at noon, he and Bergeron were taken in
a company truck to the main gate where they picketed with
“Vote-No” signs (while others held up signs favoring the elec-
tion of the Union). At 12:30 p.m., Durocher and Bergeron were
returned in the company truck to the area of Christiansen’s
office. Durocher and Bergeron stayed in Christiansen’s office,
without working, until 1 p.m. Durocher testified that he was
paid for 8 hours that day. Based on this testimony by Durocher,
paragraph 52 of the second complaint alleges that Respondent,
in violation of Section 8(a)(1), by Christiansen “solicited its
employees to campaign against the Union.”

Christiansen denied asking Durocher to go to the main gate
at lunchtime, and he denied all other aspects of Durocher’s
testimony on this point. Christiansen testified that on the day of
the election:

They [employees] was all going out to the gate
for the election during lunch, between 12:00 and
12:30. . . . The union, nonunion, [employees] who-
ever wanted to go was going out there, and we—you
know, they asked—we had—asked anybody if they
wanted to go out there, that they can go, if they was
interested in what was going on, as long as they was
back before 12:30.

Christiansen testified that it was employee Steven Caillouet
who told Durocher that, if he wished to redeem himself, he
should go to the main gate and picket with the “Vote-No” sign.
Caillouet did not testify. Christiansen testified that Durocher
left his office with a “Vote-No” sign and returned to work in
time to eat his lunch and be back on the job by 12:30 p.m.
Poche testified that during the hour before work on June 25,
he saw Durocher (and alleged discriminatee Kevin Lockett)
demonstrating at the main gate; both employees were carrying
“Vote-No” posters. This testimony was not rebutted, and I
found it credible.
I believe Christiansen’s testimony that employee Caillouet,
and not he, told Durocher and Bergeron that they could “re-
deem” themselves by demonstrating against the Union at noon
on the day of the Board election. Nevertheless, I believe Duro-
cher’s testimony that Christiansen adopted Caillouet’s solicita-
tion and encouraged Durocher and Bergeron to demonstrate
against the Union at lunchtime on election day by telling the
employees that they would be excused for one-half hour from
working if they did so. I further credit Durocher’s testimony
that he was, in fact, excused from work for one-half hour on
June 25 because he had demonstrated against the Union.
Christiansen stumbled around it, but in his above-quoted testi-
mony he essentially admitted that supervisors asked employees
to demonstrate at the gate at noon. Christiansen certainly did
not ask any employee to demonstrate for the Union; he was, as
Durocher testified, asking them to demonstrate against the Un-
ion, and Christiansen was offering one-half hour’s credit for
working if they engaged in this antiunion activity.
I find and conclude that, as alleged, Respondent, in violation
of Section 8(a)(1), by Christiansen, on June 25, 1993, solicited
employees to demonstrate against the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1224
Discharge of Durocher
Durocher was an antiunion employee. He was interrogated,
but he gave only noncommittal answers. The most he ever said
was that he “may” vote for the Union, but Christiansen credibly
testified that once Durocher told him that he thought the Union
was not the best thing for him and his family. He spoke up at
one employer campaign meeting, but his remark (about how
much the Company was spending on antiunion signs), viewed
with his history of wearing “Vote-No” stickers, was nothing
more than a taunt of the supervisors conducting the employer
campaign meeting. As Molaison testified in his affidavit, “Du-
rocher was a known company supporter.”
Finally, on June 25, Durocher asked Christiansen, “what is in
it for me,” when Christiansen asked him to demonstrate against
the Union at lunchtime. Durocher asked this question because
he wanted something, not because he was afraid of something
(as he incredibly testified at one point). The one-half hour paid
break at noon on June 25 was a sufficient trade for Durocher
because, as I find, he was an antiunion employee on June 25.
And there is no evidence that he changed his sympathies there-
after. (And, moreover, there is no evidence that Respondent
knew of any such change of sympathies.) I conclude that the
General Counsel has not presented a prima facie case that Du-
rocher was discharged in order to discourage union activities in
violation of Section 8(a)(3). I shall therefore recommend dis-
missal of the allegation on that basis.
Durocher’s Case—Alternative Findings
For possible purposes of review, I further enter alternative
findings about Durocher’s misconduct and Respondent’s dis-
charge of Durocher for that reason: Durocher acknowledged
that on September 23 he was repeatedly told by Pretlove to
leave the office and go help other employees; Durocher refused
to move for no good reason. When Pretlove persisted, Durocher
answered him with a vile and disgusting reply which Durocher
admits. Pretlove, I find, advanced on Durocher and, as he did
so, Durocher clinched his fists. Pretlove told Durocher that he
would be pleased if Durocher would take a swing at him; Pret-
love admitted that he told Durocher, “Look, you have got a
choice: you either fight or go to work.” Durocher left the office.
Durocher testified that he had previously witnessed vulgar
exchanges between supervisors and employees, but he credibly
described nothing that remotely approaches what he admits he
did; and this finder-of-fact concludes that the conduct Durocher
admits was an obvious attempt to humiliate and anger Pretlove.
(As well as Durocher’s testimony, the General Counsel ad-
duced other testimony of offensive language; again, however,
there was nothing remotely approaching what Durocher told
Pretlove.)
After Durocher left the office, Foreman A. S. Russell, who
had been present (but who did not testify), told Pretlove that he
had already called Terry. Pretlove replied that he thought the
matter could be handled with a warning notice. Pretlove drafted
a major offense-warning notice for Durocher stating: “Insubor-
dination—willful disobedience of authorized instructions issued
by supervision. When employee was given direct instructions to
report to his work area, he gave supervisor verbal abuse and
threatened to fight.” Terry ordered Russell and Pretlove to
bring Durocher to his office, which they did, after Pretlove
gave Durocher the above-quoted warning notice. According to
Durocher, when he got to Terry’s office:

[Terry] spoke with me and asked me what happened,
and I told him the same thing that just happened here. . .
.And [I told Terry that] I was sorry for what I had done.
And that Pretlove never really gave me a chance to apolo-
gize or get a word in. He just jumped in my face.
[A]nd he said, “Well, okay,” and he sent me outside,
back in the waiting room.
And Russell and Pretlove came back into Bob Terry’s
office and just spoke a little while longer. And they called
me back in, and I went in there, and he [Terry] said,
“Chad, I am sorry; I can’t have any of [these] disruptions
within my department.”

Durocher was discharged at that point.
Pretlove acknowledged that he told Terry that he did not
think that Durocher should be discharged. (This factor fortifies
my conclusion that Pretlove first challenged Durocher to fight;
otherwise, the supervisor assuredly would have recommended
discharge out of self-respect, if nothing else.) Pretlove credibly
testified that Durocher argued to Terry that he should not be
discharged because he had campaigned against the Union. As
Pretlove put it:

He said he didn’t think it was fair to discharge him,
because he was pro-Avondale and he had helped Avondale
in the Union campaign by holding up “Vote-No”—“Vote
against the Union [signs].” He said he had held up signs
on Avondale’s behalf.

Terry responded to the entreaties of both Pretlove and Durocher
that Durocher would nevertheless have to be discharged be-
cause he could not have employees “challenging” the foremen
as Durocher had done. (Again, these are alternative findings to
my holding that the General Counsel did not present a prima
facie case on behalf of Durocher.)
d. Peter Legaux’s discharge for throwing a can of urine
Peter Legaux (vols. 7, 8) was employed as a sheet metal me-
chanic until he was discharged on July 2, 1993. The second
complaint, at paragraph 97, alleges that by discharging Legaux
Respondent violated Section 8(a)(3). The General Counsel
contends that Legaux was discharged because Respondent sus-
pected him of prounion sympathies which included his wearing
prounion insignia and his telling other employees that he was
disappointed because he had missed a home visit by a union
representative. The complaint further alleges that, in violation
of Section 8(a)(1), a supervisor warned Legaux that his union
activities were under surveillance and the same supervisor
threatened a group of employees with plant closure. Respon-
dent denies that the threat or the surveillance-warning occurred.
Respondent further answers that its supervisors had no knowl-
edge or suspicion of any union activities or sympathies of Le-
gaux at any relevant time and that Legaux was discharged
solely because he threw a can of his urine over a wall into an
area in which two other employees were standing. Legaux ad-
mits this conduct. As Legaux testified: “Just my luck, two peo-
ple was passing by behind the wall, and later on, about 10:00
o’clock, one of the guys said the can had missed him, but it
could have hit him, you know.” This incident was reported to
General Foreman Arthur Schloegel who promptly ordered the
discharge of Legaux. As detailed below, there is evidence that
Respondent’s supervisors suspected Legaux of prounion sym-
pathies, and there is a prima facie case of unlawful discrimina-
tion against Legaux. There is, however, no credible evidence of
AVONDALE INDUSTRIES

1225
Respondent’s permitting any conduct remotely approaching
that of Legaux’s.246 Respondent has therefore shown that it
would have discharged Legaux even in the absence of his
known prounion sympathies. I shall therefore recommend dis-
missal of the allegation that Legaux’s discharge violated the
Act.
I do not believe certain testimony by Legaux that he wore
prounion insignia at work. Current employee Junius Duplantis
(vol. 29) worked with Legaux; when the General Counsel asked
Duplantis how he knew that Legaux was prounion, Duplantis
responded: “From talking to him from time to time.” Duplantis
was a truthful employee, as I have found above, and if Legaux
had worn prounion insignia, Duplantis would have mentioned
it.247 Moreover, the supervisor who caught Legaux throwing the
urine credibly testified that Legaux was not wearing prounion
insignia on his last day at work. There is, however, evidence
that Legaux’s foreman, Joe DeNicola, suspected that Legaux
was sympathetic to the Union. Duplantis credibly testified that,
about 3 weeks before the June 25 Board election, he was pre-
sent when employee David Sanderson told DeNicola that Le-
gaux had told Sanderson that some union representatives had
come by Legaux’s house when Legaux was not there and Le-
gaux was disappointed that he had missed meeting with them.
Legaux testified that during that same week: “Mr. DeNicola
told me that he heard that my Union buddies passed by my
house and I was very upset that I didn’t get a chance to talk to
them. I didn’t reply to him.” Based on this testimony by
Duplantis and Legaux, paragraph 29 of the second complaint
alleges that DeNicola unlawfully created the impression of
surveillance.248 DeNicola denied this testimony, but I found
Legaux credible.
In the above cases in which I have found to be unlawful acts
of the creations of the impression of surveillance, I have found
other coercive remarks were made in addition to the remarks
that would tend to foster such impressions. Such additional
findings are not, however, required. In Electro-Voice, Inc., 320
NLRB 1094 (1996), the Board stated:

In determining whether an employer has created an
impression of surveillance, the test applied by the Board is
whether employees would reasonably assume from the
statement in question that their union activities had been
placed under surveillance. See, e.g., 7-Eleven Food Store,
257 NLRB 108, 116 (1981). Employees should be free to
participate in union organizing campaigns without fear
that members of management are peering over their shoul-
ders, and in what particular ways. Flexsteel Industries, 311
NLRB 257 (1993). An employer creates an impression of

246 Schloegel testified that he ordered Legaux’s discharge because
“[h]e threw urine on two employees.” Contrary to the General Coun-
sel’s argument on reply brief, Schloegel never testified that he dis-
charged Legaux only for urinating in a can, as opposed to urinating in
the can and then throwing it where it “could have hit him” (to use Le-
gaux’s words).
247 The General Counsel did not attempt to refresh Duplantis’ mem-
ory in this regard, except by a leading question that was withdrawn
when an objection was sustained. The General Counsel did not try
again.
248 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against Legaux, as well as the
charge in Case 15–CA–12171–1.
surveillance by indicating that it is closely monitoring the
degree of an employee’s union involvement. See Emerson
Electric Co., 287 NLRB 1065 (1988).

When DeNicola told Legaux that he knew that a union repre-
sentative had been to Legaux’s house, and that he even knew
that Legaux had been upset because he had missed the union
representative, DeNicola was making remarks reasonably cal-
culated to convey the impression that Respondent was “moni-
toring the degree of an employee’s union involvement.” Such
comments would reasonably lead any employee to believe that
his protected concerted activities were under surveillance, and
they would therefore tend to discourage such activities. Accord-
ingly, I find and conclude that, in violation of Section 8(a)(1),
Respondent, by DeNicola, about June 1, 1993, created the im-
pression that its employees’ union activities were under its
surveillance.
Legaux also testified about an incident that occurred during
the week of June 14. A group of employees had gathered in
DeNicola’s office to sign in for the day; at some point they
began talking about the organizational attempt. According to
Legaux:

He told us, “Let me tell you all guys what is going to
happen if the Union gets in this yard, that Avondale is go-
ing to shut the gate; they will no longer have any place to
work, and all you all who do have a place to work, all you
all that are signing union cards will have to go on strike
and will not receive any unemployment and will not re-
ceive your jobs back again, that this union cannot work at
Avondale Shipyard.”

Again, DeNicola denied the testimony, but I found it credible.
This testimony by Legaux, however, is alleged as a second
instance of a plant closure threat by DeNicola during the week
of July 14. I have already found this violation in my disposition
of paragraph 43 of the second complaint. (See sec. IV(A)(4)(a),
above.) As I have already found that Respondent violated Sec-
tion 8(a)(1) by the conduct alleged in the specified paragraph of
the complaint, no further conclusions need be entered.
e. James Cox’s discharge for damaging company property
James (Danny) Cox (vols. 6, 158) was employed by Respon-
dent as an electrician until he was discharged on June 4, 1993.
The first complaint, at paragraph 27, alleges that by discharging
Cox Respondent violated Section 8(a)(3). The General Counsel
contends that Respondent discharged Cox because of (1) his
known union activities and expressions of sympathy which
included his wearing prounion insignia and speaking for the
Union at employer campaign meetings, and (2) his concerted
activity of circulating a petition that complained about a condi-
tion that some employees perceived to be unsafe. The General
Counsel further alleges that, in violation of Section 8(a)(1), Cox
was threatened with discharge and plant closure. Respondent
denies that the threats occurred. Respondent admits knowledge
of Cox’s prounion sympathies and his concerted activities, but
it denies that his concerted activity of circulating the petition
was protected because that activity was conducted on working
time. Respondent further denies that either Cox’s concerted or
union activities were, in any way, a factor in its decision to
discharge Cox. Respondent further answers that Cox was dis-
charged solely because he damaged, or at least defaced, Re-
spondent’s property by painting words (a prounion slogan) on a
machine. The General Counsel replies that the defense is a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1226
pretext because the machine was not damaged; alternatively,
the General Counsel replies that any defacement would easily
have been removed; as a second alternative, the General Coun-
sel replies that Cox’s conduct was, at most, a minor offense,
which, even under Respondent’s written rules, warranted only a
warning for a first offense. Ultimately, I find and conclude that
Cox was unlawfully threatened, and that his circulation of a
petition was protected activity, even though it was on working
time. Nevertheless, I further find that Respondent has shown
that it would have discharged Cox even absent his union or
protected concerted activities, and I shall recommend dismissal
of that allegation.
From the inception of the organizational attempt through the
date of his discharge, Cox was quite active on behalf of the
Union, and knowledge of that activity is not denied. As well as
wearing union stickers and buttons, Cox spoke up at several
employer campaign meetings and challenged the truthfulness of
several assertions of supervisors as those supervisor spoke
against the organizational attempt. Cox testified that he once
saw a list entitled “Union Supporters,” listed by badge numbers
(but not names) in a “community” desk at the workplace. Cox’s
badge number was one of those listed. As previously men-
tioned, Electrical Department Superintendent Robert Terry
admitted (vol. 42) that during the preelection period he main-
tained a list of “Union supporters,” and he admitted that Cox’s
name (or badge number) was on that list. Finally, Terry, who
discharged Cox, testified (vol. 90) that he knew that Cox was a
union supporter because: “He was openly supporting the Union
by his stickers on his hat, his buttons, his T-shirts, his para-
phernalia.”
Cox’s Petition and Threats to Cox—the
General Counsel’s Evidence
On Friday, May 14, and Monday, May 17, Cox worked un-
der the supervision of Foreman Daniel Reeves. On May 14,
Cox circulated a written petition to management complaining
about certain conditions on a ship that was under construction.
Cox collected 118 signatures,249 8 of which were those of su-
pervisors; to wit: General Foreman Mark Poche and Foremen
Chester Christiansen, Louis Lester, Tyrone Melancon, Bobby
Robichaux, Dell Thibodaux, Randy Owen, and Daniel Reeves.
On May 17, Cox called Terry and asked Terry to support him in
his efforts. Terry told Cox to bring the petition to his office.
Cox testified that, on the way to Terry’s office, he left another
copy of the petition at the safety department office. According
to Cox, when he got to Terry’s office, and the two of them were
alone:

Bob told me he was concerned that this was a union
matter, that it was union motivated. I tried to convince him
that this was a safety matter period, that I had no hidden
agenda, that this was in no way connected with the orga-
nizing effort. I gave him a copy of the petition. He told me
he would speak to his vice president about this matter.

On cross-examination Cox acknowledged that “at some point
he [Terry] raised the question as to when the signatures had
been gathered or acquired or whatever.” Cox was not asked
what Terry said (or asked) in this regard. Cox was not asked if

249 As he was examining the copy of the petition that was placed in
evidence at one point, Terry testified that there were 87 signatures; as
he did so, Terry failed to count a second column of the signatures.
he had solicited the signatures during working time on May 14,
either on cross-examination or direct examination.
Cox further testified that about 1:30 in the afternoon of May
17, he and the supervisors who had signed the petition “were
called” to Terry’s office. (That is, Cox used the passive voice
and did not testify how he was called, or who called him, or
who told him to go to Terry’s office at the same time as the
supervisors that had signed the petition.) Cox testified that he
was told to wait outside while the supervisors, including
Reeves, went in.
Reeves (vol. 46), who was discharged by Respondent on
May 18, testified for the General Counsel.250 Reeves testified
that during the May 17 meeting between Terry and the supervi-
sors who signed Cox’s petition (the supervisors’ meeting),
Terry was angry and upset; Reeves further testified:

At that time, Mr. Terry addressed us and told us that
we had signed a petition that Danny Cox had circulated
and [he] asked if we didn’t know that Danny Cox was a
union organizer. And he [Terry] said he [Cox] showed
Bob Terry his [Cox’s] signed union card, and that his
[Cox’s] petition had something to do with the Union. And
we had to watch him very closely.

. . . .

He told us that we all dropped a little bit in his eyes,
that we just had to watch Danny Cox.

. . . .

He said that he would have fired Danny Cox right now
but he couldn’t because all of us as foremen had signed
that petition. And if he fired him, he would have to do
something to us too.

. . . .

Well, he told all the other foremen to leave and told
me to stay and he called Danny Cox in.

As will be seen, supervisors called by Respondent testified that
Terry was quite calm and reserved during this meeting. Before
they so testified, however, the General Counsel called
Christiansen as an adverse witness (vol. 40). The General
Counsel asked Christiansen about the May 17 meeting between
Terry and the supervisors who had signed Cox’s petition.
Christiansen admitted that Terry was “very upset” during the
meeting.
Reeves was further asked what happened immediately after
the supervisors’ meeting, and he testified:

Q. Who was present besides you and Mr. Cox and Mr.
Terry?
A. That was it. Just three of us.
Q. Who said what at this time?
A. At that time, Bob Terry told Danny Cox—he said
that he was this close to firing him, that he was walking on
thin ice. One more citation and he would be gone.
JUDGE EVANS: All right. The witness held his right
forefinger and thumb about an inch apart when he said,
“This close.” All right. Continue. What else was said?

250 On cross-examination Reeves acknowledged that, when he was
discharged, he was told that the reason was “soliciting employees dur-
ing working time by making loans to them.”
AVONDALE INDUSTRIES

1227
Q. [By Mr. Morgan]: Do you recall anything else be-
ing said, Mr.—
A. No. He told us to go back to work and Danny Cox
left. Told me that I had to watch him very closely. If he
did anything else, that any time he did anything he wasn’t
supposed to, to bring him back in the office.

Cox testified that when he was called into Terry’s office af-
ter the supervisors’ meeting, Jerry Gerdes, assistant to Terry,
was present, as well as Reeves and Terry. According to Cox:

He [Terry] told me that what I had done was wrong,
that Avondale deals with their employees one on one. He
was hollering at me, he raised his hand and he held his
fingers ever so slightly apart [the witness demonstrated by
holding his right thumb and forefinger very close together,
as I described on the record] and he said, “You are a cunt
hair away from being terminated. . . . If you get one more
signature, you will be back in my office.”
He then turned and looked at Dan Reeves who was sit-
ting directly beside me, addressed him and said, “If he gets
one more signature, I want you to bring him back to my
office.” . . . The meeting was adjourned at that time.

Based on this testimony by Cox and Reeves, paragraph 14 of
the first complaint alleges that Respondent, by Terry, unlaw-
fully threatened its employees with discharge, “if they contin-
ued to engage in protected concerted activities or formed,
joined or assisted the Union.”
Cox testified that later on May 17, as he was signing out for
the day, Reeves spoke to him, and Reeves, “told me that I better
be careful, I have been marked.” Reeves, himself, testified, “I
just told Danny that he better watch his step, that they are out to
get him. Management was out to get him.” Based on this testi-
mony by Cox and Reeves, paragraph 15 of the first complaint
alleges that Respondent, by Reeves, unlawfully threatened its
employees with unspecified reprisals.
Reeves acknowledged on cross-examination that Cox had
tendered the petition to him on working time; on redirect ex-
amination he testified that he could not recall if Terry, during
the meeting with the supervisors who had signed the petition,
mentioned the fact that Cox had circulated the petition on
working time; and Reeves denied that, when he, Cox and Terry
were together, Terry said anything about Cox’s circulating the
petition on working time.
Cox testified that on May 18, Foreman Dell Thibodaux
spoke to him and:

Dell told me that Dan Reeves had been terminated . . .
. to set an example for the other foremen not to allow un-
ion activity to go on, and that he [Terry] had felt he
[Reeves] was untrustworthy. . . . [And Thibodaux told me
that] Bob Terry would have fired me the day before but
that would have meant . . . citing [issuing a warning notice
to] all the salaried personnel who had signed the petition
and he was unwilling to do that.

(Supervisors, as well as employees, may be issued warning
notices by Respondent.) No separate allegation of the complaint
is based on this testimony; the General Counsel introduced the
testimony as evidence of animus to be considered in deciding
the discharge allegations for Cox.
Cox further testified that, at some later point in May, he had
a conversation with Foreman Leon Taylor; according to Cox:

I was asked by Leon if I really thought that the Union
could help Avondale. I went to some lengths explaining
how I felt that they could help them improve work condi-
tions, the economic situation as far as acquisition of work,
to better organize their work, and to have a better quality
of craftsmen through training and more motivated workers
with all those things and they could also pay more. It was
a conversation that lasted ten minutes or 15 minutes.
His response to that was: “They can’t help us if the
yard is shut down.”
I asked him what he meant.
He told me he had been in a supervisory meeting in the
Rock House [Respondent’s administration building] in
which Mr. Bossier [Company president] had told him and
the group of supervisors there that if the Union got in they
were going to lock the gates and shut the yard down.

. . . .

My response to that was that was just ridiculous, that if
I had a company that was paying me $600,000 a year plus
benefits that there is no way I would close it down for any-
thing, and for that kind of money they would have to run
me off.
And he said he was aware that Avondale hadn’t been
doing that well financially as of late and our stocks hadn’t
been great and that he was making financial plans in the
event that the Union did get in.

Based on this testimony by Cox, paragraph 17 of the first com-
plaint alleges that Respondent, by Taylor, threatened its em-
ployees with plant closure.251
Cox’s Petition and Threats to Cox—Respondent’s Evidence
General Foreman Poche (vol. 77) testified that Cox ap-
proached him with the May 14 petition between 8 and 8:15 a.m.
while Poche was in his office. Poche testified that, before he
signed the form, he called one Lou Cognevich in Respondent’s
safety department. According to Poche:

Well, I explained to Lou that there were several people
that had concerns with this, and he said, “Put her on a
complaint form.”
And I asked, “Do we put a complaint form in on each
one, or can they just enter one complaint form and every-
body sign the same one?”
He assured me that was fine.

Poche testified that upon hearing this from Cognevich, he
signed Cox’s petition; Poche had been the 11 person to do so.
Terry, when he was called by the General Counsel as an ad-
verse witness (vol. 42), and when he was called by Respondent
in its case (vols. 90-94), testified that when Cox called him
during the morning of May 17, Cox told him that many em-
ployees and several supervisors had signed a safety petition and
Cox asked Terry for his support on Cox’s petition. Terry re-
sponded by asking Cox when he had circulated the petition.
Cox acknowledged that he had circulated it during working
time. Terry told Cox that he should not be doing such things
when he was supposed to be doing his work. Terry further testi-

251 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sect. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against Cox, the charge in
Case 15–CA–12171–1.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1228
fied that Respondent has established procedures for presenting
safety complaints, and Cox should follow those procedures.252
He asked Cox to stop circulating the petition and bring it to
him.
Terry further testified that, when Cox got to his office, he re-
peated that Cox should have followed the usual procedures for
filing safety complaints. Terry testified:

And I went on to tell him, “You know, there is three
things I want you to do for me, Danny: I want you to stop
passing the petition around. I want you to allow me to
handle this—okay—because I will take it forward, and I
want you to go back and do your job assignment.”
And at that point, Mr. Cox said, “Okay,” and he gave
me the petition. I think I asked him if it was the original.
He said no, but that was all he had, and I said, “Okay. I
will deal with it, but I will take it forward; I will handle it,
Danny. And he said, ‘Okay.”’

Terry told Cox to go back to work. Terry denied that the Union
was mentioned in this exchange; he testified that he did not
believe that it could have been a union-sponsored petition be-
cause eight supervisors had signed it.
Of the eight supervisors who had signed Cox’s May 14 peti-
tion (Poche, Christiansen, Lester, Melancon, Robichaux,
Thibodeaux, Owen, and Reeves), six attended the supervisors’
meeting that Terry conducted later in the morning of May 17;
these were: Poche, Christiansen, Robichaux, Thibodeaux,
Owen, and Reeves253 Three of those six supervisors testified for
Respondent about the meeting: Poche (vol. 77), Thibodeaux
(vols. 130-131), and Owen (vol. 136).254 In addition to Poche,
Thibodeaux, and Owen, Gerdes (vols. 122-123) and Terry testi-
fied for Respondent about the May 17 meeting. All five of
these witnesses denied that Terry was upset; all denied that the
Union was mentioned; all denied that any prounion sympathy
or activity by Cox was mentioned; all denied that Terry told the
supervisors that Cox had showed him his union card; all denied
that Terry said that he would have discharged Cox but for the
fact that eight supervisors had signed the petition; and all de-
nied that Terry told the supervisors to watch Cox more closely.
All of these supervisors testified that Terry emphasized that his
concerns were that Respondent had certain procedures for filing
safety complaints that should have been followed and that Cox
had circulated the petition on working time. All denied that, at
the close of the meeting, Terry asked Reeves to stay and they
denied that they saw Cox in the area of Terry’s office after the
meeting. All testified that Terry went around the table asking
each supervisor how he could have signed the petition. As
Gerdes described it:

And he [Terry] held the petition up, and he says, “Gen-
tlemen, I am very concerned about what is going on in this
petition and Danny Cox and this petition. First of all, I just
can’t believe supervisors would sign something like this. I

252 These procedures involve an employee’s filing a complaint di-
rectly with the safety department or going through supervision.
253 Lester testified (vol. 135) that he was not present at the May 17
meeting; Melancon did not testify, but no witness placed him at the
meeting.
254 Robichaux was not called by Respondent; Christiansen was not
asked about the meeting when he testified for Respondent (vol. 81),
although he did testify about the meeting when he was called by the
General Counsel, as discussed supra. Reeves, as previously discussed,
was a witness for the General Counsel.
cannot believe the amount of money and time that was
lost—the cost to the Company with a man circulating this
petition throughout the ship and through different sectors
of the yard. I can’t believe you all would do this.”
And then he started around the table, and first he
looked at Mr. Reeves. And he said, “Did you sign this?”
And Dan says, “Yes.”
And he says, “Why?” Dan didn’t say anything.
And then he looked at Randy Owen. . . . He said,
Randy, “Why would you permit something like this to
happen? Were you aware that you—he has—did you tell
him he had channels to go through? Were you aware he
was going around the shipyard or throughout the ship get-
ting this petition signed during working time? Further-
more, you signed it yourself.”
And Randy just kind of sat there, and he put his head
down and flexed his hands up like this (indicating), and he
says, “No.” And he didn’t say any more.
So then Bob proceeded to go around the table, and he
went to Mr. Robichaux and Mr. Poche and Mr. Thibodaux.
I was sitting to his left.
And then his closing comment was, “Gentlemen, if
this ever gets out, this would be terribly embarrassing to
the Electrical Department.”

Of course, as stated above, Reeves was Cox’s supervisor on
May 14, not Owen. Terry testified that he had been under the
impression that Owen was Cox’s supervisor. On cross-
examination Terry was asked and he testified:

Q. Did you ever learn that, in fact, that Mr. Owens was
not Mr. Dan Cox’s immediate supervisor at that time?
A. No, I did not. If he weren’t, he sat there and took a
lot of heat from me without commenting.

The significance of all of this is that Respondent contends that,
because Terry did not know that Reeves was Cox’s supervisor,
it is unlikely that Terry would have met with Reeves, and Cox,
immediately after the supervisors’ meeting to instruct Reeves
and threaten Cox, as Reeves and Cox testified. Terry and
Gerdes denied that any meeting between Terry, Reeves and
Cox, occurred immediately after the supervisors’ meeting.
Terry and Gerdes testified that they met with Cox later in the
afternoon of May 17, but Reeves was not present. Terry testi-
fied that he had thought that Cox had agreed that Cox would
allow him to handle the safety matter, but he had been called by
someone in the safety department and told that Cox had left the
petition there.255 Terry testified that he called Cox to his office
and that he and Gerdes met with Cox; Terry denied that anyone
else, specifically Reeves, was present. Terry told Cox that he
thought that they had an agreement that he would handle the
safety matter and Cox had gone back on his word, and he was
“disappointed” in Cox. Cox merely replied that he had done
what he thought he had to do. Terry denied threatening Cox
with any discipline, although he testified that he had thought
that Cox had been in violation of Respondent’s no-solicitation
rule by circulating the petition on working time. Terry denied
telling Cox that Avondale meets with its employees one-on-
one, and he specifically denied telling Cox that he was a “cunt
hair” away from being discharged, or that he held up his fingers

255 Of course, Cox testified that he had left the original of the petition
at the safety department before he had gone to Terry’s office that morn-
ing.
AVONDALE INDUSTRIES

1229
to indicate that Cox was close to being discharged. Gerdes testi-
fied fully consistent with Terry.
On cross-examination Terry acknowledged that safety was a
matter that the Union had taken up in its frequent handbilling of
the plant during the organizational campaign that was then
being conducted. He further admitted that he held “a considera-
tion” that the Union would publicize the fact that eight supervi-
sors had signed the petition. Terry further admitted on cross-
examination that employees are allowed to file and process
safety complaints on working time. Terry further acknowledged
that the employees have 10 or 15 minutes of informal breaks
during each half-day of work, but he denied that Cox told him
that he was using breaktime to solicit the signatures.
On direct examination Owen was asked why he did not state
to Terry that he had not been Cox’s supervisor on May 14 when
the petition was circulated; Owen replied: “Well, in our de-
partment, we just don’t go around, just pointing fingers at each
other. We just take the blunt of it and just let it go.”
Thibodeaux denied much of Cox’s testimony about their ex-
change on May 18. Thibodeaux testified on direct examination:

Basically I said, “Danny, this safety complaint about
the stairs, could have and should have been handled in a
better way.”
And I believe Danny’s response was, “It was the only
way I felt I could get any response.”
And my response to that was, “Danny, this is how—
this is truly what I feel; I feel that the way you handled it,
that you would have been terminated for just not—for
leaving your job and taking a lot of—to get as many signa-
tures as you had, you had to leave the job for a large
amount of time. And if it wouldn’t have been for the sim-
ple fact that supervisors signed it, I feel that you probably
would have been terminated for being off the job that
long.”
And he just shook his head, says, “Well, I guess that is
the only reason I didn’t get fired.”
And I said, “I don’t know, but that is how I feel.”

. . . .

Danny [Cox] said, “I think they fired Dan [Reeves]
because of me.”
And I said, “No; Dan was fired for loan sharking.”
And that is pretty much the extent of that.

Thibodeaux flatly denied that he told Cox that Reeves had been
discharged to set some sort of an example to other foremen
because Terry considered Reeves untrustworthy.
On cross-examination, Thibodeaux was asked and he testi-
fied:

Q. When you had the conversation with Cox one or
two days after the Bob Terry meeting, what did you tell
Mr. Cox?
A. Basically that I felt that Bob was—that he would
have been terminated for the simple fact that he was on
company time, or should I say, work time, collecting these
signatures, these 40-whatever-it-is signatures on company
time, when one signature was just as sufficient as 50 or
whatever there were.
And that is the reason I felt that—I felt—nothing was
ever told to me; this is how I felt—that he would have
been terminated for that, but the only reason he was not
terminated for the simple fact that not Bob would have had
to fire; he would have had possibly to take some type of
disciplinary action against his foremen.
Q. And when did you first develop that opinion?
A. At that meeting.
Q. At the meeting. That is the meeting with Mr. Bob
Terry.
A. Yes.

Thibodeaux had been the 44 individual to sign Cox’s petition.
Taylor (vol. 142) testified that he never discussed the Union
with Cox, and Taylor flatly denied telling Cox that Bossier had
told supervisors at the administration building that Respondent
would close if the employees selected the Union as their collec-
tive-bargaining representative. He further denied ever hearing
Bossier say such a thing. On cross-examination, Taylor ac-
knowledged that he did attend a meeting conducted by Bossier
at the administration building, and in that meeting Bossier had
said that Respondent was not in good financial condition and
that layoffs may be conducted if more contracts were not se-
cured.
Cox’s Petition and Threats to Cox-Credibility Resolutions and
Conclusions
Cox’s circulation of the petition was protected concerted ac-
tivity. Cox was called in rebuttal, but he did not deny Terry’s
testimony that Cox admitted that he had secured the signatures
on the May 14 petition on working time. Even Reeves testified
that he was approached by Cox during working time. I find that
Cox secured all, or substantially all, of the signatures on the
petition during his working time and the working time of other
employees. On the other hand, I also find that General Foreman
Poche gave Cox permission to solicit the signatures during
working time. As Poche testified, Cox approached him to sign
the petition between 8 and 8:15 a.m., indisputably Cox’s work-
ing time. (Poche did not ask Cox if he was on a break when
Cox did the nonwork of presenting the petition to Poche; more-
over, Terry testified that employees are allowed informal
breaks, but much later in the morning, usually after 9 a.m.)
Poche did not tell Cox that he should not be circulating the
petition then; Poche checked with the safety department, signed
it, and sent Cox on his way with Poche’s implicit blessing.
Also, Poche was the 11th signatory, a beacon to the bulk of the
186 employees (and supervisors) who signed the petition that
the effort had management’s blessing. Cox’s circulation of the
petition, therefore, was authorized by one of Respondent’s
second-level supervisors; concerted activities that are expressly
permitted by an employer are necessarily protected by the Act.
This was the case for Cox’s activities of May 17, as I find and
conclude.
Cox was not unlawfully threatened by Terry. Respondent’s
five witnesses to the May 17 supervisors’ meeting testified that
Terry was calm, not upset. Christiansen and Reeves testified
that Terry was upset. Respondent can argue the bias of Reeves,
but not its supervisor Christiansen. Terry was, at least, upset.
Thibodeaux testified that in the meeting, he got the impression
that Terry would have discharged Cox but for the fact that eight
supervisors had signed his petition. I find that Thibodeaux got
that impression because that is precisely what Terry said. That
is, I credit Reeves on this point; and I further credit Reeves’
testimony that during the meeting Terry said that he suspected
that the petition had something to do with the Union. And I
credit Cox’s testimony that, when he first showed the petition
to Terry, Terry told him that he thought that the petition was a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1230
“Union matter.” As noted, Terry agreed that he was concerned,
inter alia, that the supervisors’ signing the petition would be
used as propaganda by the Union. I find that Terry viewed the
petition-circulating efforts of Cox to be union activity, as well
as protected concerted activity. Terry also expressed some con-
cern that the petition-circulating activity of Cox had been done
on working time, but that was not his only concern.
On the other hand, I do not believe the testimonies of Reeves
and Cox about the alleged threat to Cox immediately after the
supervisors’ meeting. Cox placed Gerdes there; Reeves stated
flatly that there was no one there but Terry, Cox and himself.
The event, if it had happened, had to be of a most dramatic
impact. If the rest of the account by Reeves and Cox had been
truthful, the discrepancy over Gerdes’ presence could not exist.
Moreover, Reeves was not called in rebuttal to deny that during
the supervisors’ meeting, Owen was singled out for the “heat”
(as Terry testified) or the “blunt” (as Owen testified) of Terry’s
wrath. (And wrath, I find, is what it was.) Owen would not
have been subjected to Terry’s wrath if Terry had thought
someone else was responsible for Cox’s activities; Terry would
not have wasted the effort. (Or, if he had thought that Reeves
was something of a dual-supervisor with Owen, he would have
vented his spleen on Reeves, as well as Owen, and Reeves
would have so testified.) In addition to the conflict over the
presence of Gerdes, Cox, and Reeves conflict on what Reeves
was told to do by Terry; Cox testified that Terry told Reeves to
bring Cox back to his office if he got one more signature on the
petition; Reeves testified that Terry told him, in Cox’s pres-
ence, that he was to bring Cox back to Terry’s office “any time
he did anything he wasn’t supposed to.” Certainly, if this
broader threat had been uttered, Cox would have testified to it.
Finally, Cox testified that Terry used a specific, unforgettable,
vulgarism to describe just how close Cox was to being dis-
charged. Reeves, however, testified that Terry described the
distance between Cox and discharge as being that of the thick-
ness of “thin ice.” This conflict further detracts from the credi-
bility of both Cox and Reeves about Terry’s threat to discharge
Cox.
Although I have found Terry to have been a false witness at
other points,256 Gerdes was credible in his account of the end of
the supervisors’ meeting and his account of meeting with Terry
and Cox (and not Reeves) later in the afternoon of May 17. I
credit the testimonies of Terry and Gerdes that they met with
Cox, without Reeves, later in the afternoon of May 17, but they
did not meet with Cox immediately after the supervisors’ meet-
ing. Cox testified that he was called to Terry’s office at the
same time as the supervisors who had signed his petition;
Reeves was Cox’s supervisor, and he did not testify that he told
Cox to come along with him, nor did he testify that he told Cox
to go to Terry’s office separately. This leaves the question of
how Cox was “called” to go to the office so that he could be
waiting there immediately after the supervisors’ meeting. I am
convinced that Reeves was not present with Cox and Terry
immediately after the supervisors’ meeting, and the apparent
artifice of making Reeves a witness to the alleged threat perme-
ates all other aspects of Cox’s testimony on this point. I dis-
credit Cox (and Reeves), and I shall recommend that this alle-
gation of the complaint be dismissed.

256 I refer especially to the case of discriminatee Molaison where
Terry testified that he took a confession of misconduct from Molaison
on a day that Terry was not at the plant.
Cox was unlawfully threatened by Reeves. In the supervisors’
meeting, Reeves undoubtedly got the same impression that
Thibodeaux got—Cox would have been discharged if eight
supervisors had not signed the petition. I have no doubt that
Reeves told Cox that “Management was out to get him,” as
Reeves testified. The only reason for the statement was Cox’s
protected concerted activity, and union activity, of circulating
the safety petition. I conclude that, in violation of Section
8(a)(1), Respondent, by Reeves, on May 17, 1993, threatened
its employees with unspecified reprisals because of their union
or protected concerted activities.
Thibodeaux told Cox that he could have been discharged for
his protected activities. Thibodeaux was incredible in his testi-
mony that he told Cox on May 18 that Cox had pressed the
safety complaint in the wrong way, even though Thibodeaux,
himself, had signed the petition when Cox presented it to him.
Moreover, Thibodeaux testified that, in the supervisors’ meet-
ing of May 17, he got the impression that Cox would have been
discharged but for the fact of the signatures of the eight super-
visors on Cox’s petition. Cox was quite credible in his testi-
mony that Thibodeaux told him exactly that. Again, the only
activity which prompted such a statement was the union activ-
ity and protected concerted activity of Cox in circulating the
safety petition. Again, this statement by Thibodeaux was not
alleged as a separate violation of Section 8(a)(1), but it is a
clear demonstration of Respondent’s animus toward Cox for his
protected concerted activities.
Cox was unlawfully threatened by Taylor. Taylor admitted
that he had been to a meeting in which Bossier stated that Re-
spondent was not in a good financial position and that layoffs
may result if more contracts were not secured. Whether Bossier
also told the supervisors at that meeting that the yard would
close down if the Union were selected as the employees’ col-
lective-bargaining representative is not an issue. Cox was
credible in his testimony that Taylor told him that this is what
Bossier had said. This was a threat of plant closure by a super-
visor to an employee. I conclude that, in violation of Section
8(a)(1), Respondent, by Taylor, in late June 1993, threatened its
employees with plant closure if they selected the Union as their
collective-bargaining representative.
Cox’s Discharge for Damaging Respondent’s Property
Wire, or cable, is purchased by Respondent in large spools;
smaller spools are made from the larger spools on a wire-spool
machine. Only one such machine was mentioned in this case; it
was made of aluminum, it stayed outdoors in all weather, and it
had many marks and scratches that had been accumulated
through the years. The part of a wire-spool machine that holds
the larger spools has four aluminum flanges. Each flange is
about eight by 10 inches. A “Markal” is a pen-like device that
dispenses paint in a bead about 3/16 of an inch wide. Markals
are used about the plant for such things as marking steel-
fabrication jobs with the badge numbers of employees who
worked on those jobs.
As he admits, on June 3, Cox took a Markal and wrote on the
four flanges of the wire-spool machine, in letters about 6-inches
high, the four words, “Vote-Yes”-“Vote-Yes,” undisputedly a
prounion slogan during the preelection period. Further accord-
ing to Cox:

The following day, the 4th, at 10:00-something in the
morning, [Foreman] Jerry Rhoto called the small group
that worked in the cable cutting area over to the machine
AVONDALE INDUSTRIES

1231
and pointed to the “Vote Yes” and asked who did that, and
I said I did.
And he said, “I can’t believe that, defacing company
property.”
I said, “Well, you could see it that way.”
He said, “I can’t believe you go that stupid that fast,”
and turned and walked away back into his office.

. . . .

About ten or 15 minutes went by and I attempted to
scrape the marker off of the flange with my pen knife and
Jerry Rhoto came out and told me to stop. About 15 to 20
minutes later, I guess 30 or some-odd minutes, 40 minutes
after the initial conflict, [Department Superintendent]
Terry arrived . . . with two security guards—he was on his
motorcycle, they were in their pickup truck—and he told
me to come into the office.

At the office Terry gave Cox a warning notice and told him
that he was discharged. The warning notice recited as the Rea-
son for Warning: “Immediate Discharge #3—Willful damage to
Company property.” As Cox admitted on cross-examination,
Terry told him, “Danny, you are being terminated for willful
damage to Company property.”
Respondent offered as a witness employee Terron Neville
who testified (vol. 152) that, before Rhoto went into his office,
Rhoto told Cox not to touch the wire-spool machine because he
wanted Terry to see it. Cox denied this in rebuttal. I credit Cox.
Neville also testified that in Bossier’s preelection period
speeches to the entire yard, as discussed above, Bossier did not
mention the Union. Neville was not a credible witness. More-
over, Respondent did not present Rhoto for this testimony, a
fact that further impels me to draw an adverse inference and
credit Cox where his testimony conflicts with Neville’s.
The General Counsel has presented a prima facie case of dis-
crimination in the case of Cox’s discharge. Knowledge of
Cox’s union and protected concerted activities is admitted. It is
clear enough from Terry’s statement to the supervisors in the
meeting of May 17, and Thibodeaux’s threat to Cox on May 18,
and Taylor’s threat to Cox later in May, as well as the animus
that Respondent harbors toward all employees who engage in
union activities, that Respondent would welcome a chance to
discharge Cox. However, as stated in Klate Holt Co., 161
NLRB 1606, 1612 (1966):

The mere fact that an employer may desire to terminate an
employee because he engages in unwelcome concerted activi-
ties does not, of itself, establish the unlawfulness of a subse-
quent discharge. If an employee provides an employer with a
sufficient cause for his dismissal by engaging in conduct for
which he would have been terminated in any event, and the
employer discharges him for that reason, the circumstance
that the employer welcomed the opportunity to discharge does
not make it discriminatory and therefore unlawful. [Citations
omitted.]

The Avondale Employees’ Guide lists intentional damage to
company property as an immediate discharge offense. When an
object has extraneous paint put on it, it is damaged. The object
is further damaged when it is scraped with a knife. The fact that
the object has other unaesthetic marks on it, and the fact that
damage could be repaired, do not detract from the fact that it
was, indeed, damaged. Cox’s act was intentional, as he admits.
Therefore, Cox’s conduct falls within the category of conduct
for which Respondent had announced, in the Avondale Em-
ployees’ Guide, that it would discharge an employee immedi-
ately. (Even if such express announcement had not been made,
discharge for intentional damage, like theft, is a universal con-
dition of employment.)
On brief, the General Counsel cites several warning notices
that Respondent issued during the 1990-1994 period for damag-
ing property. The General Counsel contends, by the proof of
these warning notices, he has shown that a significant number
of employees who did intentional damage to company property
were only issued warning notices. This argument makes the
assumptions that, from the face of the warning notices, the
Board can tell that: (1) the employee conduct was intentional,
and (2) the employees were not discharged. Only one warning
notice that the General Counsel introduced, however, shows
that the act was intentional; this was the warning notice to paint
department employee 13791. From the face of that document, it
can be told that the misconduct was intentional; the warning
notice recites in the space for reason for the warning: “Destroy-
ing Company property. Employee purposely broke a part to an
airless gun causing it to malfunction.” The warning notice to
employee 13791 also shows that the employee was not dis-
charged because, on it, supervision checked a box for a general
offense under the Avondale Employees’ Guide.257 This single
instance, however, is not a significant number of employees
treated differently from Cox, and it does not prove disparate
treatment of Cox.
I place the remaining warning notices introduced by the
General Counsel into seven categories that are not probative
evidence of disparate treatment toward Cox: (1) Chad Duro-
cher, the alleged discriminatee discussed above, was issued a
warning notice dated January 11, 1991. On the warning notice
the box for general offense-8 (“Defacing the Company prop-
erty”) is checked, and the reason for warning space is com-
pleted: “Defacing company property by cutting air hose from
an employee of another craft.” The warning notice is signed by
Electrical Department Foremen A. S. Russell and Percy
Waugespak. Russell did not testify; Waugespak identified the
warning notice on cross-examination (vol. 71), but he dis-
claimed memory of the underlying event. The General Counsel
did not question Durocher about the circumstances underlying
the warning notice to him, and there is no evidence that conduct
which prompted the warning notice was intentional, as Cox’s
conduct was intentional. A warning notice issued to employee
943 is identical to that issued to Durocher, and it also does not
indicate that the employee’s conduct was intentional. (2) The
warning notice issued to employee 5413 is for “Intentional
negligence—Destroying Avondale Property.” The employee’s
conduct is not described in any way. The oxymoron “Inten-
tional negligence” is used, but the inference that the conduct of
the employee was merely “negligent” is equally as strong as the
inference that the conduct was “intentional.” Moreover, the
warning notice is issued for a major offense under the Avon-
dale Employees’ Guide, but the General Counsel did not show
that the employee was not discharged,258 even though, ulti-
mately, Respondent produced all personnel files of all produc-

257 Again, the Avondale Employees’ Guide states that the punish-
ment for a general offense is only a warning notice.
258 Again, the Avondale Employees’ Guide states that the punish-
ment for a major offense is a warning notice “or discharge.” Some
supervisors admitted that discharges for first major offenses were rare,
but the possibility is hardly precluded.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1232
tion and maintenance employees (going back to 1938). The
same is true for the warning notices issued to employees 11817,
12988, 10642, 2836, and 540 (although, in the case of em-
ployee number 540, there is a “Final Warning” notation on the
warning notice that does show that the employee was not dis-
charged). (3) The warning notice issued to employee number
869 shows that the employee damaged material in the process
of doing work; Cox, of course, was not doing work when he
damaged the wire-spool machine. Moreover, the employee was
cited for a Major offense under the Avondale Employees’
Guide, but the General Counsel did not show that the employee
was not discharged. The same is true (or could well have been
true) for the warning notices issued to employees numbers
1200, 11420, 1776,1375, 2563, and 9807. (4) The warning
notice issued to employee 4536 shows that he disclaimed all
responsibility for the damage, which, of course, Cox did not.
(5) The warning notice issued to employee 11153 shows that
the damage done was the result of “horse playing,” not inten-
tional conduct such as that of Cox. (6) The warning notice is-
sued to employee 576 was for simple wastefulness. The same is
true for the warning notice issued to employee 1992; moreover,
that warning notice was for a major offense under the Avondale
Employees’ Guide, and the General Counsel did not show that
the employee was not discharged. (7) The final category of
warning notices that the General Counsel cites on brief is one
composed of those that were not issued for damage to company
property.
I therefore find and conclude that disparate treatment toward
Cox has not been shown. I further find that Respondent has
proved that it would have discharged Cox for his damage to
Respondent’s property even in the absence of his known pro-
tected activities. I shall therefore recommend that this allega-
tion of the complaint be dismissed.
f. Patrick Noah’s discharge for insubordination
Patrick Noah (vol. 15) was employed as a painter-sandblaster
until he was discharged June 10, 1993. The second complaint,
at paragraph 86, alleges that by discharging Noah Respondent
violated Section 8(a)(3). The General Counsel contends that
Respondent discharged Noah because of his known union ac-
tivities or expressions of sympathy which included his wearing
prounion insignia, his telling a supervisor that he intended to
vote for the Union in the June 25 Board election, and his speak-
ing favorably about the organizational attempt at an employer
campaign meeting. Respondent denies that any of its supervi-
sors had knowledge of any prounion sympathies that Noah may
have held prior to his discharge. Respondent further states on
brief that Noah was discharged for insubordination which con-
sisted of his being out of his work area immediately after being
told to return there by General Foreman Glenn Clement. Clem-
ent, however, testified that Noah voluntarily quit when he con-
fronted Noah about being out of his work area. Ultimately, I
find and conclude that Noah was discharged in violation of
Section 8(a)(3).
Noah was hired by Respondent in November 1992. Noah
first worked on the crew of Foreman Luther Bishop. Noah testi-
fied that about April 15, Bishop spoke negatively about the
Union to members of the crew. Noah testified: “I, in turn, told
Bishop that I was for the Union, I had made up my mind which
way I was going to vote and he was just wasting his time talk-
ing to me.” On brief, Respondent argues that Noah could not
have made such a statement to any supervisor because, as of
April 15, the Board election had not been scheduled. This is an
unpersuasive argument. Employees quickly become familiar
with the procedures of Board elections during a campaign; they
do not wait until there is a formal announcement by the Re-
gional Office before knowing that they will get a chance to vote
on the issue of representation.259 Although Bishop (vol. 117)
generally denied that he knew of Noah’s prounion sympathies,
and he denied that Noah ever said “anything in support of a
union,” he did not deny that Noah told him that his mind was
made up, that he was voting for the Union, and that Bishop was
wasting his time talking to Noah about it. I cannot credit
Bishop’s unspecific testimony that he heard Noah say nothing
favorable about the Union in the face of Noah’s specific testi-
mony that he made these specific statements. (As I have noted
elsewhere, where Respondent was evidently more confident of
denials, counsel even read the transcript of the statements in
question and solicited denials.) I credit Noah.
Noah further testified that he spoke up in favor of the Union
at one employer campaign meeting that was conducted by
Clement. Respondent denies that Noah made the statement that
he claims to have made; ultimately, I find that Noah made the
statement, but not on the date that he advanced at trial. In his
trial testimony, Noah first cited April 15 as the date of Clem-
ent’s meeting; this was clearly wrong, and Noah changed his
testimony to state that Clement’s meeting was on May 27. This
date also could not have been correct because Noah testified
that he was on Bishop’s crew at the time, but, as Respondent’s
MCRs showed, Noah had been moved from Bishop’s crew to
the crew of Foreman James Knoblock on May 10. I do not
credit Noah’s (changed) testimony that the meeting in question
occurred on May 27. In his 1993 affidavit, Noah testified that
the meeting occurred on May 6. I credit the affidavit,260 and I
find that the employer campaign meeting to which Noah re-
ferred occurred on May 6.
Noah testified about the May 6 meeting:

In that meeting, they were telling us what a bad finan-
cial shape Avondale was in. They referred to it as being in
a slump. I asked Clements how they planned to get us out
of that slump, and he said the only way they knew to do
that was to continue not to give any raises and to restrict
overtime.
Then I asked him, “If Avondale doesn’t have any
money, then why are they paying hourly employees to
print these posters and signs that they were hanging all
over the yard? Why are they paying the hourly employees
to do this if they don’t have any money?”
And he [Clement] told me that he didn’t want to hear
any of that and the discussion of that subject was closed.

Many of the signs that Respondent had caused to be produced
and posted about the yard had said, inter alia, “Vote No,” and I
shall refer to the signs to which Noah referred as ““Vote-No”
signs.”
Brian Ellis (vol. 47), who had been discharged by Respon-
dent at time of trial, testified that he was present at three em-
ployer campaign meetings that were conducted by Bourg and
Clement. Noah, according to Ellis, spoke at all three. Ellis testi-

259 For example, after an employer campaign meeting, alleged dis-
criminatee Charles Giles wrote his supervisor on March 16, 2 weeks
after the organizational attempt began: “I personally will not be voting
for the Union.”
260 Alvin J. Bart & Co., 236 NLRB 242 (1978).
AVONDALE INDUSTRIES

1233
fied that, at one such meeting, Noah asked why the employees
were not receiving wage increases, and “they” replied that Re-
spondent had no money for raises. At another such employer
campaign meeting, according to Ellis, Noah asked Bourg why,
if Respondent had no money for raises, it was “spending so
much money on signs to keep the Union out. . . . And Patrick
told him that it must cost a lot of man-hours to fix the signs the
way they were doing the signs.” In this meeting, Ellis testified,
Bourg told the employees “that they were trying to keep the
Union out to save our jobs.” (Noah testified to no meeting in
which Bourg made such a statement.) Ellis further testified that
at the third employer campaign meeting, after Bourg had said
that there would be no raises, Noah said, “if we voted the Un-
ion in, we could get someone else to negotiate for us, rather
than have Al Bossier keep deciding whether or not we get
raises.”
Noah, himself, did not testify that he made this reference to
Bossier and negotiations; if he had made such a statement in an
employer campaign meeting, Noah assuredly would have testi-
fied to the fact. I discredit Ellis’ testimony that Noah told the
supervisors at an employer campaign meeting that electing the
Union would allow it to negotiate better wages for the employ-
ees. This was clearly false testimony by Ellis, and it causes me
to suspect other testimony by Ellis. I am particularly suspicious
of Ellis’ testimony regarding Noah’s question about the “Vote-
No” signs. Ellis gave two affidavits to the Board, one on March
16, 1994, and one on October 4, 1994, the latter being just
shortly before he testified. As was brought out on cross-
examination, Ellis did not mention any reference to Noah’s
alleged question about the “Vote-No” signs in the first affida-
vit. When he was passed for redirect examination, the General
Counsel did not ask Ellis why such a statement had not ap-
peared in his first affidavit. Finally, Noah testified that it was
Clement who responded to his question about the money being
spent on “Vote-No” signs, and Noah testified that Clement did
so in an abrupt manner (by stating that the subject was
“closed”); Ellis, however, testified to no such response by
Clement. In fact, Ellis testified that Noah’s question about the
money that was being spent on “Vote-No” signs was addressed
to Bourg, not Clement.
These conflicts between Noah, Ellis, and their affidavits
cause me to be entirely suspicious that Noah even asked the
question about the money that was being spent by Respondent
on the “Vote-No” signs. Nevertheless, neither Bourg, nor
Clement nor, Bishop denied that Noah asked such a question at
an employer campaign meeting that was conducted for
Bishop’s crew. I credit Noah, and I find that, on May 6, he
asked Clement (or Bourg, or both) why Respondent had money
for the production of “Vote-No” signs, but not wage increases.
Noah further testified that, about 3 weeks before his termina-
tion, he began wearing a “Union-Yes” sticker “front and cen-
ter” of his hardhat, and he maintained the sticker on his hardhat
through the date of his discharge, June 10. Noah gave two affi-
davits during the course of the investigation of the charge filed
on his behalf, one affidavit on July 19, 1993, and the other on
May 6, 1994. Noah’s 1993 affidavit was signed only a few days
after his discharge and only a few weeks after he claims to have
placed the sticker on his hardhat; yet, the 1993 affidavit does
not mention the “Union-Yes” sticker. When Noah was passed
for redirect examination, he was not asked to explain how men-
tion of the “Union-Yes” sticker could have been omitted from
his 1993 affidavit. An additional factor to consider on this issue
is that the General Counsel also called Ellis to support Noah’s
testimony about his prounion activity. Ellis, who regularly
worked with Noah, was not asked to corroborate Noah’s testi-
mony about the “Union-Yes” sticker. Also, when called as
Respondent’s witness (vol. 131), Noah admitted to a confronta-
tion with a guard during the week before he was discharged.
That guard, Barry Horn (vol. 125), credibly testified that during
the confrontation he took special note of Noah’s hardhat, and it
did not have prounion insignia on it. Finally, Noah’s supervi-
sors credibly testified that they did not see Noah wearing any
prounion insignia. Based on these factors, and the factor that
Noah, himself, did not present a favorable impression, I dis-
credit Noah’s testimony that he wore prounion insignia while
working.
Noah’s Discharge—General Counsel’s Evidence
On May 25, Noah was placed on probation by a New Or-
leans traffic court. A term of that probation was that he report
to a probation officer, by telephone: “Every Thursday between
11 & 11:30 a.m.” May 27 was the first Thursday that Noah was
required to call his probation officer. Noah testified that Clem-
ent conducted an employer campaign meeting that day, and, at
the end of it:

And I asked Clements if I could use the phone, and he
said that he would—they would do anything in their power
to help us and, you know, they were there for us. And he
then got me an outside line so I could make my call.

. . . .

I told him I had to call the courts every Thursday be-
tween 11:00 and 11:30, that that was the time set by the
court, you know.

. . . .

At that point, he said it was no problem.

. . . .

Clements got me an outside line. He dialed the main
paint office, and she [apparently a clerical employee]
hooked us up with an outside line, and I made the call.

It is to be noted that Noah testified that the meeting after which
he explained to Clement his need to use the telephone was the
same meeting at which he asked about the money that was be-
ing spent on “Vote-No” signs, and Noah testified that that
meeting was on May 27. As I have found, however, Noah
spoke up at a May 6 meeting. (And, as I find below, there was
no May 27 employer campaign meeting.)
Ellis testified that he was present when, after one of the em-
ployer campaign meetings in Clement’s office, Noah explained
to Clement the need to call his probation officer every Thurs-
day between 11 and 11:30 a.m.; Clement agreed and got Noah
an outside line. (Contrary to Noah, Ellis did not testify that the
meeting at which Noah asked to use the telephone was the same
meeting at which Noah spoke up and asked about the money
being spent on the “Vote-No” signs. This is another factor con-
tributing to my finding that the meetings were not the same, as
discussed infra.)
Noah testified that on May 25, the day he was placed on pro-
bation, he told his foreman that he had to call his probation
officer every Thursday between 11 and 11:30 a.m. The supervi-
sor, Noah testified, said that making the call would be “no
problem.” Noah identified the supervisor as Bishop; however, it
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1234
is clear that on May 25 Noah’s supervisor was Knoblock.
Knoblock, in fact, admitted that Noah told him about the proba-
tion “about three weeks” before Noah was discharged.
Knoblock also admitted that Noah told him that he was re-
quired to call his probation officer weekly. This comports with
Noah’s testimony about the date and the substance of what was
said between him and his supervisor, and it appears that Noah
was simply mistaken about which supervisor he told about the
probation.
Lester Reed (vol. 46), who was Noah’s probation officer,
testified that Noah called him as required on Thursdays, May
27, June 3 and 10 (the last being the date of Noah’s discharge).
Noah did not testify about how he arranged to make a telephone
call to his probation officer on Thursday, June 3, at the required
time between 11 and 11:30 a.m.
Noah testified that, on June 10, about 11:05 a.m., he began
looking for Knoblock in the work area, to get a pass to go out-
side the work areas to use the telephone. (A pass would be nec-
essary if an employee was going to use a telephone other than a
supervisor’s telephone.) Noah testified that he was unable to
find Knoblock in the working areas. He went to Clement’s
office where:

I told him I had to make my phone call, [and I asked
him] had he seen Knoblock. He said, “No; What are you
doing out of your work area?”
I said, “Well, I have to make my phone call.” . . .
And he says, Well, you definitely need a pass before
you make the call.
I got a phone book from Clements. [I] looked the
number up and wrote it down.

Noah did not testify that he asked Clement if he could use
Clement’s telephone. (That is, as discussed infra, Noah testified
that on May 27 Clement expressed eagerness to assist him in
making the calls to his probation officer, but on June 10 he did
not even ask Clement if he could use Clement’s telephone.)
Noah testified that, after he left Clement’s office on June 10,
he spent several more minutes looking for Knoblock. Someone
told him that Knoblock was in Rodrigue’s office. Noah called
that office on an interyard telephone; Knoblock came to the
telephone; Knoblock told Noah that he could come to Rodri-
gue’s office (which was also on the ground) and use the tele-
phone. Noah went to Rodrigue’s office and made his call to the
probation officer in the presence of Knoblock. After the call he
and Knoblock discussed the job. As he and Knoblock continued
to talk, Noah asked the time, and, “I recall him saying it was
11:58. And that was the end of the conversation with
Knoblock.” Further according to Noah, he then started walking
toward the toolroom because that was where his lunch for the
day was stored and he had to get supplies that he would need
after lunch, anyway. Noah testified:

So I am walking to the toolroom, and then I run into
Clements again. He rides up on this mo-ped as I am stand-
ing in front of the toolroom. And he says, “What are you
doing out of your work area?”
I says, “Well, I just found James [Knoblock], and I just
made my phone call.” And as I was saying that, the 12:00
siren blew, and I said, “And now I am going to lunch.”
He seemed real mad to me. . . . [H]is voice was getting
louder. He was like not understanding while [why] I am
still out of my work area because he says, . . . “What are
you doing out of your work area?” And he is shaking his
finger in my face, [and Clement further said]: “You came
by my office; It was about 11:15, and here it is lunchtime,
and you are still not back in your job area.”

. . . .

I told him, “I don’t have any choice about this; I have
to make this phone call within the time limit set by the
court; it is not my choice.”
And he told me that I needed to take care of my own
personal business on my time. And again I told him, “I
don’t have any choice about this; I have to call them.”
At this point, his voice is getting louder and louder and
he is walking towards me. I am backing up. He has me
backed against a shelf inside the toolroom, and he says, “I
know how to handle this. Give me your badge. You are
fired.”
I then lost my temper. I got my badge out of my wallet
and gave it to him. And I told him he could stick it in his
ass, and when he got done with it, he could give it to his
boss [apparently, Vice President Carroll Danos], and he
could do the same thing with it.

Noah denied cursing Clement (and Danos) until Clement told
him that he was discharged.
Noah did not testify that Clement gave him a reason for his
discharge. The General Counsel introduced into evidence a
form that Respondent completed and submitted to the Louisi-
ana Department of Labor on June 14. The form, entitled “Sepa-
ration Notice Alleging Disqualification,” is used by employers
when they wish to serve notice that they will challenge unem-
ployment claims. The form that Respondent completed is dated
June 14. On the form, under “Reason For Leaving,” there are
10 boxes that can be checked, as options. The first box is for
“Voluntary Leaving (Quit),” and the second box is for “Dis-
charge (Fired).” Respondent checked the latter. In a space for
“Explanation,” Respondent wrote: “Discharged—Walked off
the job without permission.”
During the investigation of the charge filed on behalf of
Noah, counsel for Respondent also stated in a position letter,
dated December 3, that Noah was terminated, “for walking off
the job without permission.” Counsel further stated in the letter
that Noah cursed Clement and then: “Mr. Clement told Charg-
ing Party [Noah] to turn in his badge, and he was terminated.”
Finally, counsel states: “In conclusion, the decision to terminate
[Noah] was made by Mr. Clement solely on the basis of
[Noah’s] violating ASI policy by leaving his work area.”
On the basis of Respondent’s communications to the Louisi-
ana Department of Labor and to the Region, the General Coun-
sel argues that any contention that Noah was discharged for any
reason other than walking off the job is shifting defense and
necessarily pretextual. The General Counsel further argues that
any contention that Noah was discharged for being out of his
work area is a pretext because that offense is only a general
offense under the Avondale Employees’ Guide. (As is stated
there, general offense-4 is: “Wasting time, loitering or leaving
the working place without permission.”) the General Counsel
further argues that employees are not discharged for such of-
fenses, at least until their third such offense within a 12-month
period. (See the above discussions of the cases of alleged dis-
criminatees who were discharged for multiple offenses.) That
is, the General Counsel argues that, if Noah was discharged for
his first, or even his second, offense of “leaving the working
place without permission,” he was treated disparately. There
AVONDALE INDUSTRIES

1235
are in evidence over 50 general offense-4 warning notices that
were issued to employees for being out of their work areas.
(Many of these were from the paint department.) It is undis-
puted that Noah had received no other warning notices for be-
ing out of his work area (or for anything else) at the time of his
discharge.
Noah’s Discharge—Respondent’s Evidence
Knoblock (vol. 98) testified that while Noah was on his
crew, beginning May 10 and continuing through his discharge,
Noah never asked why Respondent was paying hourly employ-
ees to make signs urging the employees to vote against the
Union. This testimony, which I found credible, fortifies my
conclusion that Noah asked such a question only on May 6,
before he was moved to Knoblock’s crew.
Knoblock further denied that, at any employer campaign
meeting that he attended, Noah asked Clement if he could use
the telephone or that he told Clement that he had to call the
courts between 11 and 11:30 a.m. Knoblock identified the
MCRs that Noah signed during the week of May 27. On Mon-
day, May 24, Noah and all other members of Knoblock’s crew
signed out from 12:30 until 1 p.m. to attend an employer cam-
paign meeting.261 The MCR for May 27 shows no sign-outs for
an employer campaign meeting, and Knoblock denied that there
was an employer campaign meeting that week, other than May
24. (When he was on cross-examination, Noah was asked if he
signed out for the meeting that he claimed was held on May 27;
Noah testified that he could not remember.)
Knoblock further testified on direct examination that about
three weeks before Noah “got fired,” Noah told him that he
needed to make a telephone call to his probation officer.
Knoblock testified that on that occasion, he took Noah to a
telephone and got him permission to use it. Knoblock further
testified on direct examination that Noah did not tell him that
he needed to make the call more than once, or at any certain
time, and he further testified that he did not recall if Noah ever
asked him again to use the telephone. On cross-examination,
however, Knoblock testified that it was “once or twice” that
Noah told him that he had to call his probation officer.
Knoblock further acknowledged that in a pretrial affidavit that
he gave to Respondent, he states: “Sometime at the end of May
or the beginning of June 1993, Patrick Noah told me that he had
been placed on probation and had to call in to his probation
officer once a week.” Further on cross-examination, Knoblock
acknowledged that, in fact, Noah told him that he was required
to call his probation officer “once a week.” Finally on cross-
examination, Knoblock denied that Noah approached him in
Rodrigue’s office and asked for permission to use the telephone
on the day of Noah’s discharge. Knoblock testified, “If he had
came and find me, he wouldn’t have got fired.”
Paint Department Superintendent Bourg (vol. 81) testified
that on June 8, he found Noah out of his work area before lunch
and gave him an oral warning. Bourg further testified that on
June 9, he again found Noah out of his work area before lunch,
and he told Noah that he would be receiving a written warning
notice for that conduct. (When he was on direct examination,
Noah denied ever having received an oral warning about being
out of his work area. I discredit that testimony by Noah, infra.)

261 Respondent had a separate job code for the MCRs to designate
when employees signed out for employer campaign meetings of one-
half hour or more.
Clement (vol. 86) testified consistently with Bourg about
their communications about Noah on June 8 and 9. Clement
testified that on June 9 he called the paint department office and
had a warning notice drafted and routed in the interplant mail
system to Knoblock for delivery to Noah. It is undisputed,
however, that the warning notice was not delivered to Noah
before his termination on June 10.
Clement further testified that about 11:10 a.m. on June 10,
Noah came to his office and “[h]e told me he had gotten in
trouble, and he needed to use my telephone to call a judge.”
Clement testified that he told Noah that “it wasn’t Avondale’s
policy to let employees use the telephone for personal calls,”
but he would in this case. Clement testified that he stepped out
of his office and let Noah use the telephone in private “because
I thought it was a personal matter.” Clement waited outside the
door while Noah used the telephone. Clement further testified
that, when Noah came out of his office, he told Noah to go on
back to work.
Clement further testified that, between 11:30 and 11:45 a.m.
on June 10, when he was riding his motor bike in the area of a
ship that was up on a supporting platform, he saw Noah stand-
ing under the ship. When Noah saw Clement, Noah “ducked”
under the ship and started walking toward a second ship that
was on a supporting platform near the first ship. Clement could
tell where Noah was going, so he motored around to the other
side of the second ship and stopped near a toolroom. Shortly,
Noah came out from under the second ship. Clement “waived”
Noah over to him. On direct examination, Clement was asked
and he testified:

Q. What did you say and what did he say?
A. I told him that I had verbally warned him. We had
written him up for leaving early, and here it is the third
day I catch him—personally catch him again doing the
same thing that he was written up for before.
And I told him I didn’t think it was fair for him to be
getting off the ship, you know, to go to lunch early and
beat the crowd while everybody else had to stay up there
and wait for it. I recommended that he go back to work
again, go back up on the ship.
Q. Did he say anything to you at that time?
A. He cursed at me. He—can I say what he said?
Q. If you remember exactly what he said, what did he
say?
A. He says, “Look.” He says, “Man, fuck you and Car-
roll Danos. I don’t need this job,” at which time he dis-
played his badge and had it out like this.
JUDGE EVANS: All right. The witness extended his left
forearm and turned his wrist down sharply, so that his
thumb was up in the air—or just beyond, let’s say, a 90-
degree angle from his body line. And you are saying he
had his badge between his thumb and his forefinger?
THE WITNESS: Yes, sir.
Q. [By Ms. Canny]: And what, if anything, did you do
or say at that point?
A. I took his badge from him.
Q. Do you know whether or not—well, what did you
understand Mr. Noah was doing?
A. I thought he quit the job.

. . . .

Q. [By Ms. Canny]: Did you do anything else at that
point?
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1236
A. I called security to come take him out of the yard.
JUDGE EVANS: Did he say anything else to you?
THE WITNESS: Not after he cursed me.

Clement testified that he waited in the area of the toolroom
“until the security guard picked [Noah] up.”262
During Bourg’s testimony, Respondent had offered an ASI-
22 (discharge) form that was created after Noah’s discharge.
Also during Bourg’s testimony, Respondent offered a memo-
randum that was created by Clement after Noah’s discharge.
For the reasons that I discussed below, I rejected the ASI-22
form. Clement’s memorandum was offered again, separately,
during his direct examination. As I stated on the record, I re-
jected the offer because, as the trier of fact, I was not going to
use it as a substitute for, or even as corroboration of, sworn
testimony that was subject to cross-examination. That is, I
found Clement’s postdischarge memorandum irrelevant for the
purpose that it was offered. Although it was rejected for the
purpose offered by Respondent, the General Counsel and the
Charging Party used Clement’s memorandum during cross-
examination. Clement was first examined about his testimony
that he had allowed Noah to use the telephone on June 10.
Clement was asked and he testified:

Q. Sir, I want to place before you Respondent’s Ex-
hibit 431, rejected exhibit. And, sir, isn’t it correct that the
following sentences appeared: “I questioned this employee
and told him he had to return to his work area, at which
time he informed me he had to make a personal phone
call. He was told—he was then told ASI doesn’t pay him
to make personal phone calls—personal calls (except in
emergencies, which this was not). I told him again to re-
turn [to] his work area.”
Q. Is it correct that that appears in your statement?
A. Yes, it does.
Q. Nowhere in this statement, sir, does it say that you
then allowed Mr. Noah to make a phone call, does it?
A. No, it doesn’t.

In the cross-examination about his testimony that Noah had
quit, Clement was again asked about the memorandum. Clem-
ent acknowledged that the memorandum concludes: “I then told
him to turn in his badge, that he was fired.” Clement was then
asked about a pretrial affidavit that he had given to Respon-
dent’s counsel:

Q. Sir, isn’t it correct that the affidavit you gave Ms.
Canny says, “So I told him”—referring to Mr. Noah—”to
hand in his badge, that he was fired.” Isn’t it correct your
affidavit says that?
A. Yes, sir, it does.
Q. Isn’t it correct, sir, that on June 10, 1995 [sic], you
told Mr. Noah that he was fired?
A. That is what my affidavit says.
Q. No, sir. Yes-or-no question: Isn’t it correct—
A. Yes.
Q. —that on June 10, 1993, you told Mr. Noah that he
was fired?
A. Yes.

262 Knoblock had testified that on June 10 the sand-blasters, such as
Noah, were working without a lunchbreak. The implication is, there-
fore, that Noah should not have been leaving for lunch at all on the day
he was discharged. At no point, however, did Clement testify that he
knew that Noah was not entitled to a noon lunchbreak.
Q. Now, that is not the same thing you testified to ear-
lier today, now, is it?
A. My memory is refreshed—
Q. I am sorry. Yes or no: That is not the same thing
you testified to earlier today, is it?
A. No.

Clement then testified that he did not remember telling Noah
that he was fired, and, even though he admitted that he told
Noah “that he was fired,” he continued to insist that Noah had
quit. Clement was again shown the ASI-22 form that was com-
pleted after Noah was discharged. (As noted, I had rejected that
document when it was offered through Bourg.) Clement was
asked and he testified:

Q. And you recognize this as being one for Mr. Noah?
A. Yes.
Q. And do you see a reason—a date of June 10, 1993,
on there?
A. 6/10/93, yes, sir.
Q. And do you see a reason on there for his leaving
employment, reason for change?
A. Termination.
Q. Does that refresh your recollection that Mr. Noah
was fired on June 10, 1993?
A. Terminated.
Q. Terminated. Do you see a difference between an
employee being terminated and an employee being dis-
charged?
A. His employment is terminated either way.
Q. Mr. Noah quit his employment. Is that correct, sir?
A. That is my understanding, yes, sir.
Q. Well, you were the general foreman who was re-
sponsible for the termination papers. Isn’t that correct?
MS. CANNY: Objection.
JUDGE EVANS: Did you have some responsibility re-
garding the termination papers?
THE WITNESS: No, sir, I didn’t. . . .
Q. [By Mr. Lurye]: When you say it is your under-
standing that he quit, sir, that is not based on anything any
other foreman reported to you. Isn’t that correct?
A. It is not based on anything any other foreman has
told me.
Q. That [understanding] is based solely on the occur-
rence that you have described here in the courtroom be-
tween you and Patrick Noah on June 10 in the toolroom—
is that correct?—at about 11:45 a.m.?
A. Yes. No. It is based on what he told me.

Obviously because he had insisted that Noah had quit, Clement
was not asked on direct examination, or redirect examination,
why he had discharged Noah. (Clement’s rejected memoran-
dum also does not say why he discharged Noah; specifically,
the memorandum does not state that Clement discharged Noah
for insubordination.)
Noah’s Discharge—Credibility Resolutions and Conclusions
I have discredited Noah’s testimony that he wore prounion
insignia at any time while working for Respondent. I have cred-
ited the testimony of Noah and Ellis that at an employer cam-
paign meeting Noah asked why Respondent was spending
money on the “Vote-No” signs. I do not, however, find that this
single question constituted an expression of prounion sympa-
thies. As I found in the case of alleged discriminatee Chad Du-
AVONDALE INDUSTRIES

1237
rocher, the question was more of a taunt of Respondent than an
expression of support for the Union. Nevertheless, I have cred-
ited Noah’s testimony that, on April 15, he told Foreman
Bishop that his mind was made up, that he was voting for the
Union, and that Bishop was wasting his time talking to Noah
about it. Knowledge of this unequivocal expression of prounion
sympathies is imputed to Bishop’s supervisor, Clement, and it
was Clement who discharged Noah. That is, knowledge of
Noah’s prounion sympathies is established. Respondent’s ani-
mus toward employees who held such sympathies having been
established, I conclude that the General Counsel has presented
a prima facie case of unlawful discrimination in the case of
Noah’s discharge, and the burden shifts to Respondent to dem-
onstrate by a preponderance of the evidence that it would have
taken the same actions against Noah even in the absence of his
known protected activities. Respondent’s defenses must there-
fore be examined.
I do not believe, and do not credit, Clement’s testimony that
Noah, in something of a fit of exasperation, cursed Clement and
Danos, and then declared that he was quitting and voluntarily
handed Clement his badge. I believe, and find, that Clement
discharged Noah by demanding his badge because of: (1)
Noah’s credible testimony, (2) Clement’s postdischarge memo-
randum in which he states that Noah “was fired” (although the
memorandum does not state the reason for which Noah “was
fired”), (3) Clement’s pretrial affidavit that states that Noah
“was fired,” (4) Respondent’s filing with the Louisiana De-
partment of Labor, which filing skips the box for “Voluntary
Leaving (Quit)” and checks the box for “Discharge (Fired).”
Respondent also added that Noah was fired because he “walked
off the job without permission”), and (5) Respondent’s Decem-
ber 3 letter to the Region that states that Noah “was terminated”
(for “leaving his work area”). I further find that Noah did not
curse Clement (and Danos) before he was fired.
Although Clement did not testify that he discharged Noah for
insubordination, Respondent states on brief :

Mr. Noah was fired for “[I]nsubordination. Willful
disobedience of authorized instructions issued by supervi-
sion,” [which is a quotation of ] Immediate Discharge Of-
fense number 1 in the Employee Guide. Specifically, Mr.
Noah had intentionally disobeyed the instructions of Mr.
Clement to return to his work when Mr. Clement saw him
at the field office, and instead was still out of his work
area half an hour or 45 minutes after Mr. Clement given
him the instruction to return to the ship, in willful disobe-
dience of Mr. Clement’s instruction, and he was termi-
nated.263

Clement did not testify to this, and he is the supervisor who
discharged Noah. If Clement had thought that Noah was guilty
of insubordination that rose to the level of that which is pro-
scribed by immediate discharge offense-1 of the Avondale
Employees’ Guide (by cursing, or by refusing to follow orders,
or by any other insubordinate conduct), and he discharged
Noah for that reason, Clement assuredly would have so testi-
fied. Again, Clement did not. Instead, Clement falsely testified
that Noah quit.
By testifying that Noah had quit, of course, Clement insu-
lated himself from any cross-examination about what he might

263 A footnote, which makes other, unrelated, factual assertions is
omitted.
have thought Noah’s insubordinate conduct was. Also, if Clem-
ent had testified about what he thought that insubordinate con-
duct was, the General Counsel would have been required to
prove that Clement’s testimony was not true or that Noah was
treated disparately. Rather than offer testimony that was subject
to cross-examination and rebuttal, however, Respondent of-
fered only a postdischarge document to prove that Noah was
discharged for insubordination. Through Bourg, as noted
above, Respondent offered as a “business record” an ASI-22
form to prove that Clement had, indeed, discharged Noah for
insubordination. A discharge is not a routine event for any em-
ployer,264 and it is hardly a “regularly conducted activity”
within Federal Rules of Evidence 803(6). Rather than being a
record of a routine business event or transaction, ASI-22 forms
are created in contemplation of litigation, specifically, litigation
before the Louisiana Department of Labor, as Respondent’s
personnel manager, Bruce Nunez, testified (vol. 117). More-
over, any such record must be created by “a person with
knowledge,” according to 803(6). Clement was the supervisor
who made the decision to discharge Noah (and it was Clement
who called for security department personnel to take him
away), but, as Clement admitted, he had no part in creating the
“business record” that Respondent offered. The ASI-22 form
that Respondent offered to show that Noah was discharged for
insubordination is completed in the distinctive handwriting of
paint department office clerical employee Joy Plaisance. Plai-
sance entered, and initialed, Bourg’s signature. The form does
contain the hearsay entry by Plaisance that Noah had been dis-
charged for “insubordination,” but Respondent offered no tes-
timony about who may have given Plaisance her information
and ordered her to make the “insubordination” notation on the
form. Also, Respondent offered no testimony about when the
form was created. Bourg testified that he saw the form shortly
after it was prepared, but Bourg did not testify when that was.
Also, contrary to Respondent’s assertion on brief, Bourg did
not testify that he somehow approved the discharge of Noah,
and he certainly did not testify that, in approving the discharge
of Noah, he somehow relied on the assertions of the ASI-22
form (or Clement’s postdischarge memorandum). Specifically,
Bourg did not testify that the issue of Noah’s discharge had
been submitted to him for review before Clement had called the
security department and had Noah escorted from the prem-
ises.265 Nor was there an offer of any such testimony. That is,
taken at best, and indulging in every assumption upon which
Respondent relies, the ASI-22 form reflects what Bourg
thought Clement could have discharged Noah for; it is not,
however, a statement that, in fact, Noah had been discharged
for insubordination.
Such postdischarge forms as the ASI-22 form offered by Re-
spondent in Noah’s case cannot take the place of sworn testi-
mony that is subject to cross-examination, which is the purpose
for which Respondent offered the document. If such documents
could be substituted for sworn testimony that is subject to
cross-examination, NLRB discrimination cases would turn into
drafting contests. Determinations according to law, of course,
are not made on the basis of such drafts; they are made on the

264 As evidence that it rarely discharges employees, Respondent of-
fered the testimony of an expert on statistics on day-138. I struck the
testimony as it was offered for another, and irrelevant, purpose.
265 As shown in the case of discriminatee Marshall, paint department
general foremen sometimes make the final decisions on discharges.
That also appears to have been the case in Noah’s discharge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1238
basis of sworn testimony that is subject to cross-examination.
At best, the ASI-22 form that Respondent offered in Noah’s
case would serve to corroborate sworn testimony that Noah was
discharged for insubordination; here, again, such testimony is
lacking because Clement did not testify that he discharged
Noah for insubordination. Moreover, it is again to be noted that
Respondent’s position letter of December 3, as quoted above,
does not state that Noah was discharged for insubordination. It
states, in two different places, that Noah was discharged for
being out of his work area. If the defense of insubordination
had existed before December 3, counsel for Respondent would
have mentioned it in his statement of position of that date.
Counsel’s letter to the Region quotes Clement’s postdischarge
memorandum, and, obviously, that memorandum had been
made available to counsel. Presumably, if the ASI-22 form that
Respondent offered into evidence had existed before December
3, it also would have been made available to counsel and he
would have mentioned the defense of insubordination in his
letter. For all of the foregoing reasons, I adhere to my ruling,
and the ASI-22 form that Respondent offered as its defense that
Noah was discharged for insubordination remains rejected.
I firmly believe that, like the defense that Noah quit, the de-
fense that Noah was discharged for insubordination is a post
hoc creation designed as a substitute for the defense that Re-
spondent asserted in counsel’s letter of December 3 and in the
submission to the Louisiana Department of Labor; to wit: “leav-
ing his work area.” Respondent apparently felt constrained to
find a substitute for the “leaving his work area” defense be-
cause it knew that that defense would not withstand scrutiny. It
would not withstand scrutiny because the disciplinary offense
of being out of the work area is, at most, a general offense un-
der the Avondale Employees’ Guide. (In fact, it is general of-
fense-4.) As discussed above in the cases of the alleged dis-
criminatees who were discharged for multiple offenses, three
such offenses, after an oral warning,266 are required before an
employee can be considered for discharge under the Avondale
Employees’ Guide.267 Here, Noah had committed, at most, only
two such offenses after Bourg’s oral warning of June 8. The
first such offense was on June 9. The second, as I find below,
occurred on June 10. Under Respondent’s progressive discipli-
nary system, Noah was entitled to a warning notice for each of
those offenses. According to Clement on direct examination,
even after a third similar offense in 12 months employees are
not necessarily discharged; Clement was asked and he testified:

Q. Do you have any practice for yourself and your line
foremen concerning three citations to an employee in 12
months’ time?
A. Three citations to an employee in a 12-month time
warrants termination.
Q. Do you know whether or not employees with three
citations in a 12-month time period who work under your
supervision are always terminated?
A. No, they are not.

266 Respondent contends that oral warnings are usually issued before
warning notices for general offenses under the Avondale Employees’
Guide are issued.
267 The Avondale Employees’ Guide states that discharge may come
on a second general offense, but supervisors consistently testified that
employees are discharged on a second general offense only on rare
occasions. Clement did not testify that Noah’s disciplinary offense of
June 10 was such an occasion. (Again, Clement did not testify that
Noah was discharged, at all.)
Q. Why not?
A. Well, it is hard to find out. Unless you call to find
out how many citations they actually do have, it is a matter
of getting up and going and looking in their files to find
out if they have three. I mean, we have—if we see some-
one loitering or anything like that, we will—you know, we
will verbally warn him. If we catch him again, we will call
in for a citation. . . .
Q. [By Ms. Canny]: When, if ever, do you or your line
foremen call to check an employee’s department file or
personnel file when a citation is written?
A. If it is a chronic case and it is, you know, back-to-
back incidences where the guy got caught doing the same
thing, we will call and say, How many citations does this
guy have? This is not the first time I catch him doing this.
And at that time, then, we will be notified whether he has
three on file.

Here, again, Noah had received no warning notices before June
10. One had been drafted, and it may be assumed that it was
“on file,” according to Clement’s understanding. There were
not, however, two warning notices “on file.” And, as Clement
admitted, even if an employee receives three warning notices
(or commits three offenses) within 12 months, he is not neces-
sarily discharged.
The defenses that Respondent has submitted for Noah’s dis-
charge have shifted from the defense of his “leaving his work
area,” to the defense of his having quit his employment, to the
defense of his having committed insubordination. Respondent’s
shifting from defense, to defense, to defense shows that all of
the defenses are pretextual, and Respondent’s shifting of de-
fenses creates the strong inference that Noah was unlawfully
discharged. The General Counsel’s prima facie case that Noah
was unlawfully discharged is accordingly fortified by this in-
ference. There is no evidence that Noah was discharged for
insubordination or leaving his work area, and the evidence that
Noah quit has been discredited. It must therefore be concluded
that Respondent has not met its burden under Wright Line to
show that it would have discharged Noah even in the absence of
his professed intention to vote for the Union in the Board elec-
tion that was to occur 15 days’ later. The conclusion that Noah
was unlawfully discharged is therefore compelled. For possible
purposes of review, however, I make additional findings about
circumstances of Noah’s discharge.
As previously noted, Knoblock testified, “If he [Noah] had
came and find me, he wouldn’t have got fired.” I find that on
June 10 Noah did come to Knoblock in Rodrigue’s office, and
he used the telephone there. I further find that, before he went
to Rodrigue’s office, Noah went to Clement’s office, but he did
not then use Clement’s telephone, and Clement did not then tell
him to go immediately to work. My reasons for these findings
are as follows:
Noah was placed on probation on Tuesday, May 25. There
were three Thursdays between that date and Noah’s discharge.
These Thursdays were May 27, June 3 and 10. The records of
Probation Officer Reed show that Noah made calls to his office
on all of those dates. Witnesses for neither side testified on the
topic, but a finding on how the June 3 call came to be made is
necessary. It is apparent to this trier of fact that both Noah and
Clement selected some words that were said on June 3, and
they inserted those words into their respective versions of what
happened on June 10.
AVONDALE INDUSTRIES

1239
Clement did not testify that Noah’s June 10 request to use
the telephone to call his probation officer was the first such
request that Noah made to him. If it had been, Clement assur-
edly would have so testified. Also, Clement did not deny that
Noah made such a request after an employer campaign meet-
ing. (Respondent carefully sought such a denial from
Knoblock, but Clement was not asked.) From Clement’s failure
to deny the testimony of Noah and Ellis in this regard, I find
that Noah did ask Clement to use the telephone after some em-
ployer campaign meeting. It was not after the employer cam-
paign meeting of May 24 that Noah made his request because
Noah was not on probation until the next day. It was not after
an employer campaign meeting on May 27 that Noah made the
request because there was no employer campaign meeting con-
ducted on that date. It appears, therefore, that Noah made his
first request to Clement on Thursday, June 3. There is no af-
firmative evidence that there was an employer campaign meet-
ing on that date, but that must have been the case. I do so find.
Alternatively, I find that, even if there was no employer cam-
paign meeting on June 3, Noah asked Clement for permission
to use his telephone on that date.
I further find that when, on June 3, Noah asked Clement to
use the telephone, Clement allowed Noah to use it, but he then
told Noah that he should not ask to use his (Clement’s) tele-
phone in the future for personal calls. This is what Clement
testified happened on June 10, but, if he had allowed Noah to
use the telephone on June 10, Clement would have mentioned
the fact in his postdischarge memorandum; he did not. My find-
ing that this occurred on June 3 is the only way to reconcile
Clement’s memorandum, or what is left out of the memoran-
dum, and the self-conflicting testimony of Noah. Noah’s self-
conflicting testimony is: (1) Noah testified that the first time he
asked Clement to use a telephone to call his probation officer,
Clement effusively told him that “ he would—they would do
anything in their power to help us and, you know, they were
there for us,” and Clement then told a clerical to get an outside
line for Noah. (2) Noah, nevertheless, testified that the next
time that he needed to make a call he went to Clement’s office
but did not ask to use the telephone; he only asked to look up
the number of his probation officer. If Noah had previously
(and effusively) been told by Clement that he could use the
telephone for such purposes, Noah would have at least asked to
use the telephone when he went to Clement’s office on June 10.
Instead, according to Noah, he only asked where he could find
Knoblock and he asked to look at a telephone book.
Finally, to go back in time, Knoblock testified that, 3 weeks
before Noah was discharged, Noah asked to use his telephone
(or, possibly Rodrigue’s telephone) to call his probation officer;
and Knoblock testified that he allowed Noah to do so. This
testimony was not rebutted, and I find that it is true. This would
have been the call that Noah made on May 27. I so find.
In summary, I find that the circumstances of the three tele-
phone calls that Noah made to his probation officer were: (1)
On May 27, Knoblock permitted Noah to use his telephone. (2)
On June 3, Noah asked Clement to use his telephone; Clement
then allowed Noah to do so, but Clement told Noah not to ask
to use his telephone again; rather, Clement told Noah thereafter
to get a pass and go to a telephone outside the work areas to
make personal calls. (3) On June 10, Noah did not ask Clement
if he could use Clement’s telephone, but Noah did tell Clement
that he was looking for Knoblock to get a pass, and he asked
Clement for the telephone book to look up the number of his
probation officer. Clement did not then tell Noah to go immedi-
ately back to work; Clement told Noah to find Knoblock, make
his call, then get immediately back to work.
After he got the telephone number from Clement, Noah con-
tinued looking for Knoblock. He did find Knoblock in Rodri-
gue’s office, and he then (and there) made the call to his proba-
tion officer.268 Noah admits that he did not go directly back to
his work area. He testified that he went toward the toolroom
area to seek out supplies and gather his lunch. I do not believe
this self-serving testimony. I believe that Noah was maneuver-
ing toward the gate, to get a “jump” on the lunchtime rush. I
believe that Clement saw Noah out of his work area and rea-
sonably believed that Noah was, again,269 committing an of-
fense under the Avondale Employees’ Guide. Clement, feeling
that he had sufficient pretext to discharge Noah, promptly did
so. It was then, and not before, however, that Noah cursed
Clement and Danos.
In conclusion, the General Counsel has presented a prima fa-
cie case that Noah was unlawfully discharged. Respondent,
however, has not shown that Noah was discharged for insubor-
dination (or for leaving his work area). Respondent has there-
fore failed to show that it would have discharged Noah even in
the absence of his expressed intention to vote for the Union in
the soon-forthcoming Board election. I therefore conclude that
Respondent discharged Noah in violation of Section 8(a)(3).
g. Charles Bennett’s discharge for insubordination
Charles Bennett (vols. 24–26) was employed as a painter and
sandblaster until he was discharged on July 20, 1993. The sec-
ond complaint, at paragraph 104, alleges that by discharging
Bennett Respondent violated Section 8(a)(3). The General
Counsel contends Respondent discharged Bennett because of
his known union activities and expressions of sympathy which
included his wearing prounion insignia and telling a supervisor
that he had voted for the Union in the June 25 Board election.
The complaint further alleges that Bennett was threatened in
various ways in violation of Section 8(a)(1). Respondent denies
that the threats occurred. Respondent further answers that Ben-
nett was discharged solely because he was insubordinate to a
foreman and that he threatened the foreman. The General
Counsel replies that the defense for Bennett’s discharge is pre-
textual because Bennett did not engage in the conduct attributed
to him; alternatively, the General Counsel replies that Bennett
was treated disparately because other employees who engaged
in similar, or worse, conduct were issued lesser discipline. Ul-
timately, I find and conclude that Respondent has failed to
show that Bennett engaged in the conduct attributed to him, and
I conclude that Bennett was discharged in violation of Section
8(a)(3).
Bennett testified that he engaged in no union activities before
the June 25 Board election, but, shortly thereafter, he placed a
“Union-Yes” sticker on his hardhat where it remained through
the date of his discharge. Bennett further testified that he took
handbills from the union organizers at Respondent’s gate. Ben-
nett testified that on one occasion, about 2 weeks before the
Board election, after he had accepted a union handbill and stuck

268 I discredit Knoblock’s testimony to the contrary.
269 I credit the testimonies of Bourg, Clement and Knoblock that
Bourg caught Noah out of his work area before lunch on June 8 and 9,
that on June 9 Bourg told Noah that he would receive a warning notice,
and that Bourg ordered Clement to issue the warning notice. Noah,
however, was terminated before the warning notice could be delivered.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1240
it in his pocket where it was showing, Paint Department Fore-
man Eldon Pierre spoke to him and, according to Bennett, “He
said that those could get you in trouble.” Pierre, however,
credibly denied this testimony.
Bennett testified that in March, in an employer campaign
meeting that was conducted in a toolroom on board a ship:
“[General Foreman] Tommy Bourgeois said that if the Union is
voted in, that it will raise the wages so high that other compa-
nies would not bring their work to Avondale; therefore, we
[would] have no work, and we would be forced to close.” Cur-
rent employee James Lanham (vol. 27) testified that he also
was at a March employer campaign meeting during which
Bourgeois spoke. Lanham testified that Bennett was one of the
employees present, and that the meeting was conducted in the
paint office of the ship that they were working on. Lanham
testified that during the meeting: “He [Bourgeois] said if the
Union was voted in, we would have to close down because we
couldn’t compete with other shipyards.” Former employee
Donald McGee (vol. 58) testified to essentially similar state-
ments by Bourgeois. Based on this testimony by McGee, Ben-
nett, and Lanham, paragraph 9 of the second complaint alleges
that Respondent, by Bourgeois, unlawfully threatened its em-
ployees with plant closure.270 Bourgeois testified, but he did not
deny this testimony by Bennett, Lanham, and McGee, and I
found the testimony credible. I conclude that, in violation of
Section 8(a)(1), Respondent, by Bourgeois, in early March,
1993, threatened its employees with plant closure if they se-
lected the Union as their collective-bargaining representative.
Bennett further testified that about 3 or 4 weeks before the
Board election, Paint Department Superintendent Charles
Bourg Sr. spoke to employees at an employer campaign meet-
ing and: “[Bourg] was saying that if the Union come in, that
they would raise the wages up so high that other—the compa-
nies wouldn’t bring their work to the shipyard to have it done;
they would go somewhere else. . . . They said that they would
be forced to close, because they wouldn’t have no work.”
Lanham testified that he attended an employer campaign meet-
ing at which Bourg Sr. spoke to a group of employees that in-
cluded Bennett. According to Lanham, Bourg told the employ-
ees: “That if the Union was voted in, that we would have to
close our gates.” McGee testified that at a meeting: “Charlie
Bourg also said that the Union was only interested in collecting
union dues from us and that the Union could not guarantee us
any promotions or any raises. Charlie Bourg then stated that
Avondale would close down if the Union was voted in because
they would not be able to compete with other shipyards.” Based
on this testimony by McGee, Bennett and Lanham, paragraph
10 of the second complaint alleges that Respondent, by Bourg,
unlawfully threatened its employees with plant closure.271
Bourg denied this testimony; however, I found the employees
credible. On brief, Respondent argues that the employees can-
not be credited because they conflict about who conducted the
meetings and where. Bourg admitted that he attended or con-
ducted various employer campaign meetings during this period,
and Respondent’s arguments do not preclude the possibility
that the statements were made at different meetings. Also, as

270 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against Bennett, as well as the
charge in Case 15–CA–12171–1.
271 Id.
found above, Bourgeois, Bourg’s general foreman, did not deny
that he made essentially the same threat. It is more likely than
not that those undenied threats by Bourgeois272 were the reflec-
tion of what he had heard from his superintendent, Bourg.273 I
conclude that, in violation of Section 8(a)(1), Respondent, by
Bourg, in March 1993, threatened its employees with plant
closure if they selected the Union as their collective-bargaining
representative.
Bennett further testified that on June 25, the day of the Board
election, when he was in a work area, he passed Pierre and
employee Donald Kennedy. According to Bennett, Pierre asked
him how he would pay his bills on a picket line and told him
that, even if the Union were selected as the collective-
bargaining representative, the supervisors would make it hard
on the employees by making “some changes.” Based on this
testimony by Bennett, paragraph 53 of the second complaint
alleges that Respondent, by Pierre, unlawfully threatened its
employees with unspecified reprisals.274 This testimony was
quite suspect; before the Board election Bennett made no dis-
play of any prounion sympathies that he might have held, and
there is no apparent reason why Pierre might have singled out
Bennett for such a virulent threat. I further found Pierre credi-
ble in his denial of the threat, and I shall recommend dismissal
of this allegation of the complaint.
Bennett further testified that during the evening of June 25
he waited outside Respondent’s administration building for the
election returns. He first stood behind the building with a group
of employees and supervisors who opposed the organizational
attempt. Across a public road stood several union representa-
tives and many prounion employees. At some point during the
evening, according to Bennett, Marybeth Arnold, Respondent’s
timekeeping supervisor, came out of the building and gave the
group “an early count.’ After he heard Arnold, according to
Bennett:

I walked over and told the union representative [about
the preliminary count], and they [the Company supporters]
had Doug Cortez, [and an] electrician foreman, and a cou-
ple of other foremans come up to me and started yelling,
“You traitor, you traitor; you are either with us or you are
with them.”
And I left and started going to my truck. And the elec-
trician foreman hollered out, “Watch out—Watch out; he
is going in his pocket.”
And Doug Cortez said, “That is what I want him to do,
so I have a reason to hit him.”
I just got in my truck and left.

Bennett testified that, as he left, Cortez (whose first name is
actually Dirk), “was coming behind me.” Bennett further testi-
fied, “They chased me out to the parking lot the night of the
election,” but this is a conclusion inconsistent with his testi-
mony that he “just” got into his truck and left. Bennett did not
know the name of the person whom he identified as the electri-

272 As noted in the case of discriminatee Marshall, Bourgeois also
made undenied threats that employees who wore prounion insignia
would be discharged for doing so. Also, as noted in the case of dis-
criminatee Varnado, Bourgeois also made an undenied, violative, threat
that, if the Union were selected to be the collective-bargaining repre-
sentative, Respondent would lay off employees when work was slack.
273 The animus that Bourg personally held for the Union is reflected
in a surreptitious recording that Bennett made, as discussed infra.
274 See fn. 270, supra.
AVONDALE INDUSTRIES

1241
cal department foreman. Based on this testimony by Bennett,
paragraph 54 of the second complaint alleges that Respondent,
“by Doug Cortez and several other unidentified foremen,
threatened its employees with physical violence because they
aided or supported the Union.”275
Bennett testified that on his next workday, June 28, Paint
Department Foreman Terry Knight referred to the “Cortez”
incident, and Knight told him: “You are a very lucky man, be-
cause [toolroom employee—————] Danos kept . . . them
entertained where you could get away.” Based on this testi-
mony by Bennett, paragraph 56 of the second complaint alleges
that Respondent, by Knight, “threatened its employees by tell-
ing them that other supervisors were going to physically assault
an employee because he aided or supported the Union.”276
The allegations of paragraphs 54 and 56 depend on the Gen-
eral Counsel’s establishing that, on June 25, Cortez was a su-
pervisor within Section 2(11) of the Act. This is something that
the General Counsel failed to do. Therefore, while I found
Bennett’s testimony credible over certain denials by Cortez and
Knight, I shall recommend dismissal of these allegations of the
complaint.
Although it is not alleged as a separate violation, Bennett
further testified that when Knight spoke to him on June 28,
Knight asked him if it was true that he had voted for the Union.
Bennett testified that he replied to Knight that he had. Knight
denied this testimony; however, I found Bennett credible.
Discharge of Bennett—the General Counsel’s Evidence
About June 14, Bennett and Lanham were transferred from
an outside painting job on the first shift to working in the shot
house on a shift from 3 until 11 p.m., with no scheduled meal
break. (Such shifts were sometimes referred to as “straight
eights”; although there were no scheduled meal periods, em-
ployees working such shifts were allowed to pause briefly, at
appropriate times, to eat food that they might carry with them
and canned soda from vending machines.) Bennett did not ob-
ject to the transfer to the second shift, but he bitterly protested
the assignment to the shot house, one of the more difficult
places to work at the plant.277 On July 20, Bennett and Lanham
reported to the shot house, but some time after they did, they
were approached by Foremen Matthew Martin and Dennis
(Alabama) McDonald. Martin and McDonald told Bennett and
Lanham to check in their shot house equipment and report to
the platen area where they would be sandblasting units that day.
Bennett and Lanham went to the shot house toolroom to check
in their equipment. When they got to the toolroom, Bourg and
several other persons, including Foreman Glenn Clement and
General Foreman Gilbert Arseneaux, were there. It is undis-
puted that, while Bennett and Lanham were in the shot house
toolroom, Bourg made a comment that was referred to in a
relevant postdischarge exchange between Bennett and Bourg,
and I shall recount the testimony at this point. According to
Bennett, in the toolroom: “And Charlie Bourg said that, ‘Those
are two important men.’ Then a few minutes later, he said,
‘They are very important.’ Then the toolroom lady, Mary, told
him [Bourg] to shut up.” Bennett and Lanham then left the
toolroom and went to the platen area where they received as-
signments from McDonald and Martin.

275 Id.
276 Id.
277 Neither the transfer to the second shift nor the assignment to the
shot house is alleged as a violation.
After units are sandblasted, they are to be “blown-down”
with an air-hose, and thereafter they are to be fine-cleaned of
the dust that settles. (How fine cleaning was done was not de-
scribed; it is probably a repeat air-hose operation.) Bennett
testified that when he got to the platen area (where units are
still on platens), McDonald assigned him to blow down, and
fine clean, a unit that was the size of a small room. It was very
hot inside the unit. As Bennett knew, after the cleaning was
finished, the tank was to be painted. While Bennet was doing
the cleaning job, a storm began to gather. If the unit got wet
before painting, it would have to be reblasted. Bennett testified
that he blew down and fine cleaned the unit. Bennett was asked
and he testified:

Q. So after you fine-cleaned the unit, then what hap-
pened?
A. They told me—Alabama [McDonald] told me to get
my line and set it up there in the middle with the rest of
the workers. And Martin drove up, and he said, “I want
Charles to blast right here.”
And Bama [McDonald] said, “I already had Lee [Ben-
nett] lined up there.”
He [Martin] said, “I don’t give a fuck who you had
lined up there. I want Charles to blast here.”
And so I pulled my stuff over there and got it set up to
blast right there. Then they were filling the sandblast pot,
so I couldn’t blast until they got through with it. So I went
and got my lunch box and put it in under the shelter and
got me a cold drink and a sandwich.
And Alabama come up to me, hollering, “Put that
fucking sandwich up; put that mother-fucking sandwich up
now.” And I put my sandwich up, and then—the sandwich
was already up, and then Martin come up there hollering
the same thing.
I told Martin that if I seen anybody else eating or
drinking, I would consider that harassment. He told me to
“go over by the toolroom,” that I was “going home.”

(As the term is used at the yard, to send an employee “home” is
to suspend him.) Bennett testified that, in fact, other employees
who were assigned to sandblast were also sitting around wait-
ing for the sand pot to be refilled.
As Martin told him to do, Bennett did go to the toolroom;
Martin followed, and they had an exchange of words. Bennett
sometimes carries on his person a microtape recorder. He sur-
reptitiously recorded four conversations that he had with his
supervisors on July 20 and 21. The first recorded conversation
occurred when, on July 20, Bennett and Martin arrived at the
toolroom; and that conversation was between Bennett and Mar-
tin, only. The second recorded conversation occurred a few
minutes later on a walkway on the levee, at a point near the
gate from which Bennett left work that day; that conversation
was among Bennett, Martin, and the paint department’s second
shift general foreman, Carl Mott Sr. The third conversation that
Bennett recorded occurred on July 21, before 3:30 p.m., in the
office of Paint Department Superintendent Bourg; Bourg and
Bennett were the only participants in that conversation. The
fourth conversation that Bennett recorded occurred on July 21,
some time after 3:30 p.m., also in Bourg’s office; the partici-
pants were Bennett, Bourg, and Martin. Transcripts of the four
conversations were offered by the General Counsel; after the
tapes were played and certain modifications of the transcripts
were made, the tapes and their transcripts were received in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1242
evidence.278 I shall quote extensively from these three tran-
scripts.
(The transcripts are especially difficult to read because the
speakers often interrupt each other and because of other prob-
lems. To facilitate understanding, I have entered the bracketed
indications to note the speakers’ apparent intent. Ellipses in the
original transcriptions, which show interruptions and pauses,
are replaced by dashes here (to distinguish them from the ellip-
ses that I enter). The transcriptions often use “your” for
“you’re”; I have entered corrections accordingly. I have also
entered certain punctuation that is necessary for understanding
of the exchanges. Also, Respondent employed an expert whose
audio-enhancing equipment proved some parts of the first and
second conversations in addition to what was proved during the
General Counsel’s case; where I quote the transcripts of Ben-
nett’s recordings, the contributions of the expert’s analysis of
the tapes are italicized.)
The first recorded conversation begins when Bennett and
Martin have reached the toolroom area on June 20; Bennett first
speaks and asks “What’s this about?” Martin tells Bennett,
“What do you think it is about? . . . What did I tell you? I
caught you, didn’t I?” Bennett argues that he had been working
in a hot place, and, that by drinking a soda, he was doing no
more than what other employees do regularly. Then, according
to the transcript:

MARTIN: I do not care about other people. If you are
going to work for me, you are going to do as I tell you
to!!279
BENNETT: So you are harassing me, huh?
MARTIN: You can call it what you want. I am doing
my job and you are going to do yours.
BENNETT: You are sending me home for drink a cold
drink after I—
MARTIN [interrupting]: That’s exactly right!
BENNETT [continuing]: after I had been in that unit for
about two hours.
MARTIN: Hey, no. You ain’t been in there no two
hours. And I’m going to tell you something else-you ain’t
even been in there an hour. And I’m going to tell you
something else—I’m not arguing with you. . . .
BENNETT: All I wanted to do was drink my cold drink
and go on back to work.
Martin: No. No, you copped an attitude. That’s what
you did.
BENNETT: No, I didn’t.
MARTIN: [unintelligible] What did . . . What did you
do then?
BENNETT: Huh?
MARTIN: What did you do?
BENNETT: You fix . . .
MARTIN: What did you do then?
BENNETT : You’re fixing to send me home for drinking
a cold drink.
MARTIN: You’re gone.

Many times thereafter, Martin tries to get Bennett to admit that
he had done, or said, something when Martin had approached
Bennett on the unit and told Bennett to get back to work. Ben-

278 The first and second conversations were recorded on the same
tape, and they appear on the same transcript.
279 Exclamation marks are in the original transcript.
nett always evades answering Martin. In the dialogue that was
recorded at the toolroom, Martin never says what it is that Ben-
nett is supposed to have said or done when the two men were at
the unit.
Further in the transcription of the exchange between Bennett
and Martin at the toolroom, Martin asks Bennett if he had seen
anyone else in the area who was eating at the time that Bennett
was eating. Bennett does not answer this question, but he asks
Martin if he had not seen others drinking sodas on his shift;
Martin states that he has not. Martin then says: “Clear on out
and get your pass out through the gate.” Bennett asks that Mott
be called. Martin refuses; Bennett tells Martin that he will go to
Mott; Martin replies that he is Bennett’s “boss,” and, further:

MARTIN: Well, you’re gone. You can go talk to Al
Bossier if you want. You work for me. You don’t work for
nobody else. You work for me and what I say [is] going to
go.

Bennett again accuses Martin of harassing him and Martin and
Bennett repeat themselves a few times. Then:

MARTIN: You know something else, Charles? You will
get a citation tomorrow.
BENNETT: For what?
MARTIN: For not doing your work.
BENNETT: For drinking a cold drink?
MARTIN: No, for not doing your work.

One last time, Martin asks Bennett to admit what he had said or
done the first time that he was approached by Martin at the job;
Bennett replies: “I didn’t tell you nothing. I was putting the
sandwich up.” Bennett again argued that others were standing
around when Martin had approached him on the jobsite. The
exchange continues:

MARTIN: You ain’t got nothing to do with what other
people do.
BENNETT: I was in there working by myself. I was hot.
I was, sure, I was a little hungry. I came out. . . . I came
out; I was drinking one sandwich and a cold drink.
MARTIN: Simple as that; not doing your work.
BENNETT: Well, I did my work. I came out. . . . Yeah,
that unit’s clean; go check it. I was in that hot, hot, hot,
unit. . . . No air in there. I blew it down. I was fine-
cleaning it. . . . All I wanted was one cold drink and a
sandwich, and I was going to blast. And I wasn’t eating it
slow. I was eating it very fast.280

The transcript of the exchanges between Martin and Bennett at
the toolroom stops at that point, apparently because Bennett
turned off the tape recorder.
At the hearing Bennett testified that, after the exchange with
Martin at the toolroom, he went back to the unit, gathered his
tools, and proceeded toward the gate. On a walkway to the gate,
he met Martin and Mott. (In its case, Respondent introduced
evidence of how Mott and Martin had gotten together so that
Bennett could have met them at this point; Respondent also
introduced credible evidence of things that were said between
Mott and Bennett that are not on the transcript of the second
conversation that Bennett recorded.) The transcript of the sec-
ond conversation picks up at some point during the time that

280 The ellipses that I insert in this paragraph exclude Martin’s say-
ing (with disbelief apparent), “Yeah, Yeah.”
AVONDALE INDUSTRIES

1243
Mott, Martin, and Bennett were at the gate.281 The first part of
the second conversation that Bennett recorded is:

MARTIN: What do you want to do with him, Mott? Fire
him?
MOTT: Do you have enough to fire him?282
MARTIN: Yeah.
MOTT: You sending him home?
MARTIN: Right, for not doing his work.
BENNETT: For not doing my work?
MARTIN: That’s right.
BENNETT: I was only stopped, not even—
MOTT: Are you terminating him? Are you firing him?
MARTIN: He should be fired.
MOTT: I’m asking you.
MARTIN: Yeah.
BENNETT: You firing me?
MARTIN: That’s right. [Then Martin says to Mott:] He
don’t want to do what I tell him to do. It’s up to you.
[Then, apparently to Bennett] I told you to get back to
work. No, you want to keep arguing with me.
BENNETT: You’re going to fire me for drinking a cold
drink.
MARTIN: Yeah, I’m going to fire you. That’s right.
MOTT: I agree with him.
BENNETT: You agree with him and your name’s Mott?
MOTT: Yeah.

On cross-examination, Bennett acknowledged that before he
exited the gate (but, apparently after he had turned off the re-
corder) he asked Martin for a statement of the reason for his
discharge. Bennett further acknowledged that Martin gave him
a gate pass. (A gate pass is used to show gate guards that the
employee has permission to leave before quitting time.) The
gate pass that Martin gave to Bennett lists the time as 5 p.m. on
July 20. In a space on the form for “Details,” Martin had writ-
ten: “Terminated-Insubordination.”
On July 21, well before the second shift had started, Bennet
went back to the plant to plead for his job with Bourg. In the
transcript of this third conversation that Bennett recorded,283
Bourg speaks first and says:

BOURG: You gonna have to come back this evening. I
ain’t going to discuss the matter with you until I have the
foreman that fired you. . . . I can tell you what the man
said. The man said he asked you to go back to work and
you said “No, I ain’t going back to work right now; I’m on
break right now. I’m eating my sandwich and [drinking]
my drink.” Quote unquote. Did you not just say that?
BENNETT: I did not say that.

Bennett did return during the afternoon of July 21. He went
to Bourg’s office where he met Bourg, Mott, McDonald, and
Martin; also present were General Foremen Tommy Bourgeois

281 On the transcript that was received as G.C. Exh. 147(b), this
point, otherwise unmarked, is at p. 8, just before the last line.
282 In a transcript prepared by Respondent’s expert, this sentence is
marked “unintelligible.” It was not unintelligible. This is what was said,
as was demonstrated when the parties and I reviewed the tape and the
transcript that was offered by the General Counsel. Respondent made
no objection to the transcript that was offered by the General Counsel
that included this sentence.
283 Respondent’s expert was not questioned about this recording or
its transcription that was offered by the General Counsel.
and Gilbert Arceneaux, Foreman Glenn Clement, and two secu-
rity guards. Then occurred the fourth conversation that Bennett
surreptitiously recorded. (The transcript of this meeting con-
tains Bourg’s reading of a memorandum that Mott had previ-
ously submitted to Bourg; although Mott was present during
this meeting, according to Bennett, the transcript reflects that
Mott then said nothing.) In the transcript, Bourg begins by tell-
ing Bennett that it is “your show.” Bennett begins by stating
that he was terminated for eating a sandwich and drinking a
soda. Bourg denies this and begins to read a memorandum that
he had received from Mott:

BOURG: No. No. What you was terminated for, I was
told, I read . . . what Mr. Mott left me. [Bourg then begins
reading a memorandum that he had received from Mott.]
“Mr. Charles Bennett, [badge number] 11479, termi-
nated at 5 p.m.
“At three p.m. he was given orders to blow down unit
450, a small tank. At 4:45 he proceeded to his lunch box,
got a soft drink and sandwich and started eating them.
“Martin walked over and asked him what he was do-
ing.
“He said he was taking a break.
“Martin told him it was not lunchtime and he needed
the unit completed so he would not lose it due to the rain.
He then told Charles to put up his drink and sandwich and
complete his job.
“Charles said ‘I’ll show you a thing or two.’
“Martin then said, ‘You won’t show me anything;
you’re fired. Your time will stop at 5 p.m.’
“Mr. Charles Bennett was terminated for loafing on the
job and insubordination in a threatening way.”

Bourg’s reading to Bennett of Mott’s memorandum ended at
this point. Further according to the transcript, after he finishes
the reading of the memorandum from Mott, Bourg tells Ben-
nett, “Now, its your show again.” Bennett calls Martin,
McDonald, and Mott liars, then:

BOURG: In other words, you didn’t put your finger in
Martin’s face?
MARTIN: Ain’t that right Charles? When I come over
there and you was sitting up on that unit, what did you
say?
BENNETT: I did not tell you what’s wrote on that paper.
MARTIN: That’s just what you said. That’s just what
you said.

Bourg states that Bennett had had his say, then he tells Martin
to give his account, which was:

MARTIN: When I walked over there, told him about
eating. He [Bennett] walked back [and I said to Bennett],
“Charles, put up your lunch and go back to work.”
[Bennett said to me], “What you mean? I can’t eat a
sandwich?” That’s what he told me. I said, “Charles, put
up your sandwich and your soft drink and go back to
work.” [Then Bennett said to me]: “What y’all trying to
do? I’ll show you.”
BENNETT: I did not.
MARTIN: You didn’t do that?
BENNETT: That’s right.
MARTIN: Well, Charles, you are a liar. . . . I’ll tell you
what. They got that woman. She was over there. She said,
“Martin, did you see how he was pointing his finger?”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1244
They was, she was over there by the tracks. They had Hill,
Lloyd, Greenwood, and the woman; that [totals] four peo-
ple. I don’t know if they heard direct word, but she did.
BOURG: Charles, you know that’s threatening.
BENNETT: What I say happened.

Bourg again asks for Bennett’s account and:

BENNETT: What I’m saying is I did my work. The rain
was coming. I could see the rain at the bridge. I moved my
lunch box. Took four or five bites of a sandwich on the
way [while I was] moving my lunch box. Drinked half a
cold drink.
BOURG: You’re getting off the subject because you’re
not being fired for eating or drinking any soft drink. I want
to let you know that. You’re being fired for insubordina-
tion . . .
BENNETT [interrupting]: I didn’t tell him nothing.
BOURG [continuing]: and threatening and putting your
finger in that man’s face.
BENNETT: I didn’t put my finger in his face.
BOURG: But he got this man right here and, plus, he’s
got other witnesses out in the yard that [are] saying to the
fact that you did put your finger in his face.

After repeating themselves, Bennett reminds Bourg of the inci-
dent at the shot house toolroom:

BENNETT: You remember the little comment you made
to him [apparently, Clement] and Gilbert [Arseneaux]
when we walked up. You seen our hats and you said,
“That’s two very important men.” And Mary told you to
shut up, that you shouldn’t have said that. . . . I wasn’t the
only one that heard that.
BOURG: I’m telling you right now, don’t bring up noth-
ing about “union.” You be quiet right now because I let
you talk; now let me talk. Let me tell you, don’t you, don’t
bring up “union” in front of me. You’re not being fired for
any union. I could care less on what you feel; that’s your
right. That’s your right as an American, but don’t tell me
and sit right here and say because you had a union sticker
on your hat that you [are] being fired [for that]. Now, you
go and tell [that to] those other rotten son[s] of bitches that
you’re talking to, okay, but don’t come in my office and
threaten me . . . . [Y]ou stinking fuck with the wrong one.
‘Cause I[‘ll] have your ass in court. You hear what I’m
telling you? I[’ll] have your ass personally in court. And
you can go back and tell God this, ‘cause I don’t give a
shit. But you’re not being fired for union activity, ‘cause
we don’t fire people in this shipyard [for that] . . . You’re
being fired for insubordination and talking and intimidat-
ing your supervisor. . . .
BENNETT: What I’m telling you [is that] I didn’t point
my finger in his face.

After some repetition of these themes, the recorded discussion
diverges into whether Bennett also had been working for an-
other employer; Bennett denied that. Then:

BOURG: You don’t work for nobody [else]. You’re not
being fired [for any other reason], so don’t go back and
tell anybody outside this yard or anybody else that you’re
being fired for eating a sandwich or drinking. I told you;
you’re being fired for insubordination and threatening a
supervisor by putting your finger in his face. You said,
“I’ll get you.” He [Martin] has a witness right there [ap-
parently referring to foreman McDonald who was then
present], and also he’s got other hourly employees [as wit-
nesses]. You’re not going to do [any more of] your part
right now. I’m saying my part. I gotta back them [Martin
and McDonald] up ‘cause I got another foreman [who]
said he was right there; he seen it.
And the reason I got security [guards] here is to let you
know that you [are] not being fired for eating a sandwich.
You’re being fired for insubordination and threatening a
foreman. We don’t fire people for eating a sandwich. We
don’t fire people for drinking. We don’t fire people for go-
ing to the bathroom. We fire people for not following or-
ders, and it, do what you want—Because I got your signa-
ture [on an acknowledgment] that you have one of these
guide books [the Avondale Employees’ Guide], and, if
you read this book again, it says you cannot intimidate or
be insubordinate to a salaried supervisor or [to the] orders
of an employer.
BENNETT: [Repeats his denial of any misconduct.]
MARTIN: Yeah, sure.

At this point, Bennett’s recording of the fourth conversation
ended.

Further for the General Counsel, current employee Lanham
testified that he was present in the work area during the con-
frontation between Bennett and Martin on July 20. Lanham
testified that he saw Bennett eating a sandwich and drinking a
soda. At the same time, Lanham testified, he could see em-
ployee Raymond Hill, about 60 feet away from Bennett, eating
a sandwich at the same time. Hill, however, was part of a crew
which, at the time “didn’t have nothing to do,” as Bennett ac-
knowledged when he testified. Lanham further testified that he
saw Martin and McDonald approach Bennett and he heard Mar-
tin tell Bennett to put up his food and drink, and Bennett imme-
diately complied; Lanham further testified that he did not see
Bennett make any gestures toward Martin. In his pretrial affi-
davit, however, Lanham states simply, “I do not recall the con-
versation between Bennett and Martin.” Lanham was given
ample opportunity to explain this inconsistency, but he was
unable to do so. I do not credit any of Lanham’s testimony
about the exchange between Martin and Bennett. I do not be-
lieve that he was present during the confrontation, although he
may have come upon the aftermath, and he may have then re-
ceived a report from Bennett, which report was the apparent
source of his testimony.
Bennett’s Discharge—Respondent’s Evidence
On day-26 of the trial, during the cross-examination of Ben-
nett, Respondent showed Bennett an MCR for July 14. When
Bennett was passed for redirect examination, the General
Counsel requested production of the MCRs that Bennett signed
between July 14 and 20, the day he was discharged. The docu-
ments had been subpoenaed,284 but Respondent refused to pro-
duce them, even though she acknowledged that they were in the

284 Subpoena B-87852 had demanded production of MCRs for the
employees who had worked in shot house from July 14 through 20.
(Bennett was assigned to the shot house on those dates, although he
was also reassigned to the platen area at some point during July 20.) On
day-11 of trial, I denied a petition to revoke the subpoena, and it was
still outstanding at the time that the demands for the documents were
made on day-26.
AVONDALE INDUSTRIES

1245
courtroom. (In the course of the discussion of the issue, I cited
Industrial Towel & Uniform Service Co., 172 NLRB 2254
(1968). In that case, an individual who had not been subpoe-
naed was in the courtroom, but, when called by the General
Counsel, the respondent’s counsel refused to allow the witness
to take the stand. The Board condemned the counsel’s conduct,
making it clear that a subpoena is not necessary for persons
who were present in the courtroom when called to testify. The
same would necessarily apply for documents that were ac-
knowledged to have been in the courtroom, as I informed Re-
spondent’s counsel, even if the documents had not been sub-
poenaed. Counsel nevertheless persisted in her refusal to pro-
duce the documents.)
On day-98 of the trial, 11 months after I ordered production
of the MCRs, Respondent, still without having produced the
subpoenaed documents, called Foreman McDonald as a wit-
ness. When Respondent’s counsel asked McDonald to testify
about the confrontation at the unit that involved him, Martin
and Bennett, the General Counsel, citing Bannon Mills,285 ob-
jected. I again asked Respondent’s counsel why the documents
had not been produced; she replied, “[I]f we produce those
documents, we would not preserve the issue for review or ap-
peal.”
Bannon Mills precludes a litigant from using records wrong-
fully withheld, “and secondary evidence regarding matters
provable by such records.” McDonald’s testimony would have
been in the nature of secondary evidence offered to prove what
could well have been in the July 20 MCR that was wrongfully
withheld from the General Counsel during presentation of his
case. More particularly, Bennett testified that he was first as-
signed to blow down one unit and then sandblast another; he
testified that he did not get started on the unit to be sandblasted
because the sand pot was then empty, and that is why, accord-
ing to Bennett, he took time to eat and drink. If the MCR listed
assignments for work on two different units (which would have
had different job account numbers), it would tend to lend cre-
dence to Bennett’s testimony, whether or not Bennett actually
got started on a second unit. (The relevance of this factor is
even argued on Respondent’s brief; Respondent contends that
Bennett was lying about the empty sand pot’s being a factor in
what he did because, Respondent contends, Bennett was only
assigned to blow down a unit, a job for which the sand pot was
not needed.) Moreover, as the transcript of Bennett’s tapes
reflects, Bennett and Martin disagreed over how much time
Bennett had spent blowing down the unit. The MCR could well
have been helpful in determining who was truthful.286 Also,
because Respondent continued to contumaciously withhold the
July 20 MCR when it presented McDonald, the possibilities of
effective cross-examination of McDonald were severely dimin-
ished. Finally, each MCR has a space for a supervisor’s
“Comment” about the shift. The MCR that Bennett signed on
July 20 could have contained a “Comment,” or other entry, that
squarely conflicted with what McDonald was about to testify.
An entry could even have had words that disclosed an unlawful
motivation in Bennett’s discharge.287 I therefore sustained the

285 146 NLRB 611 (1964).
286 Ultimately, this issue was rendered moot because of a later ad-
mission by Mott, as discussed infra, that Bennett was not punished for
taking a break. At the time of my rulings to which Respondent objects,
however, Mott had not testified.
287 This is hardly a far-fetched assumption. At one point, in answer-
ing another subpoena, Respondent produced all 1993 MCRs of the
General Counsel’s objection to the presentation of McDonald’s
testimony about what could have been documented in the
wrongfully withheld MCR of July 20.
I did, however, allow Respondent to make a question-and-
answer offer of proof through McDonald. This offer included:

Q. What did Martin say?
A. He told him, “Charlie, it is about to rain. You need
to put your sandwich away and go back to work.”
Q. And what did Charles say?
A. He told Martin—he took his finger and pointed it in
Martin’s face and say, “I will show you a thing or two.”
Q. Did Charles or Martin say anything else before
Charles did that?
A. No. Only Martin just told him—asked him to go
back to work.
Q. How far apart were Charles and Martin at the time
that Charles put his finger in Martin’s face?
A. Arm length, you know. . . .
Q. After Charles said, “I will show you a thing or
two,” and shook288 his finger in Martin’s face, what did
Martin say or do?
A. Martin told him, “You showed me nothing. You
showed me nothing. Pick up your equipment and go to the
toolroom.”
Q. Did he say anything else?
A. He told him he was fired.
Q. What did Martin do at that point?
A. Got on his bike and went to the toolroom.

This testimony, even in an offer of proof, shows that McDonald
was not a truthful witness. As the above-quoted transcript of
Bennett’s recording shows, when Martin and Bennett reached
the toolroom, Martin confirmed only that he was sending Ben-
nett “home,” and that he was getting a warning notice “for not
doing your work.” Martin did not say anything to indicate that
he had already told Bennett that he had been discharged. To the
contrary, Martin told Bennett at the toolroom, “I am doing my
job and you are going to do yours,” necessarily implying that
Bennett had not then been discharged. That is, Martin would
not have said these things at the toolroom if, as McDonald testi-
fied in the offer of proof, Martin had already fired Bennett
when the two were back at the job site. Also, after Martin and
Bennett left the toolroom and met Mott at the gate, Mott felt
required to ask Martin whether he was discharging Bennett.
(“I’m asking you,” Mott stated to Martin.) Only at that point
does Martin state to Bennett, “Yeah, I’m going to fire you.”
Mott’s question and Martin’s use of the future tense show, at
least, that Martin had not fired Bennett at the jobsite (or even at
the toolroom). All of which is to say that McDonald testified
falsely when he testified in the offer of proof that he heard Mar-
tin tell Bennett that he was fired.289 Accordingly, for possible
purposes of review, I here state that I would not credit McDon-

paint department except Bennett’s MCRs for the July 14-20 period.
This factor, and Respondent’s demonstrated virulent animus toward the
statutory rights of its employees, leads immediately to the inference
that Respondent, in disobeying my directive, was hiding something that
was quite damaging. I so infer.
288 It is to be noted that McDonald had not said that Bennett had
shaken his finger.
289 McDonald’s testimony appears to be the product of reading
Mott’s memorandum, as quoted supra, but not the product of honest
recollection.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1246
ald’s testimony that he saw that Bennett “pointed”290 his finger
in Martin’s face, and I would not credit McDonald’s testimony
that he heard Bennett say to Martin, “I will show you a thing or
two,” even if McDonald’s testimony were received as evidence
rather than taken merely as an offer of proof.
Respondent did not call Martin to testify. Respondent states
on brief that it did not call Martin because of the rulings that I
made when it called McDonald to testify. Be that as it may, the
record now does not contain Martin’s testimony, and it does not
even contain an offer of proof of Martin’s testimony. In Mott’s
memorandum to Bourg, as quoted above, Mott says that there
were three other witnesses to the incident, but Respondent also
did not call those individuals to testify, even to make offers of
proof.
As noted above, Respondent introduced credible evidence
that some things were said among Mott, Bennett, and Martin
before Bennett started the recording of the second conversation.
Mott (vol. 103) testified that during the afternoon of July 20
Martin came to him at the shot house. (This would have been
after the end of the first conversation that Bennett recorded, at
the same time that Bennett left the toolroom and went back to
the worksite to retrieve his tools before being suspended for the
day.) At the shot house, according to Mott, Martin reported
that, after working only about an hour, Bennett had sat down on
the job to eat and drink, although a storm was approaching;
Mott testified that: “Martin told me that the man jumped up into
his face and told him, ‘I am going to show you a thing or two.”’
Mott further testified that, on hearing this from Martin, he told
Martin that he would come to the area and see Bennett. When
Mott got to the area, in a walkway leading to the gate, he found
Martin and Bennett. Mott further testified:

And Charles Bennett proceeded to tell me, “Well, this
man is firing me for eating a sandwich and drinking a
drink.” I said, “No, I want to know what happened be-
tween you and Martin. Why were you sitting down drink-
ing a soft drink and eating a sandwich when you hadn’t
completed your work?”
And [Bennett] told me, “Well, I was tired and ready to
take a break.”
Martin said, “I asked him to go back to work. When I
asked him to go back to work, he got mad and told me
that, I am going to show you a thing or two, and jumped
up into my face.”
And Bennett proceeded to say, “No, he is just firing
me because I was sitting down, drinking a drink and eating
a sandwich.”
I said, “Charles, you don’t work an hour and decide to
take a break.”
And I told Martin, I said, “Did anybody else see
Charles Bennett?”
[Martin] said, “Yes, I have a couple of people over
there that seen this.”
Charles Bennett again proceeded to say something,
and I said, “Charles, hold it. I tell you, I want to ask you
something right now. Did you jump up into this man’s
face?”
[Bennett said,] “Well, he had me mad.”

290 Again, Respondent’s counsel, not McDonald, used the word
“shook.”
The transcript of the second conversation that Bennett recorded
picks up at this point, as quoted above.
Bennett’s Discharge—Credibility Resolutions
and Conclusions
I find that Bennett wore prounion insignia from July through
the date of his discharge. I find that all supervisors who had
come in contact with Bennett as he worked during that time had
knowledge of his prounion sympathies by virtue of that open
and obvious display; this, of course, would include Mott and
Martin, and also Bourg who fulminated against Bennett and the
Union when (during the fourth recorded conversation) Bennett
referred to his hardhat. It is to be noted that, before Bourg be-
gan his diatribe, Bennett had said nothing about the prounion
insignia that had been on his hardhat. Also, on June 28 Bennett
told Foreman Knight that he had voted for the Union in the
June 25 Board election. From all of this I conclude that, at the
time of his discharge, Respondent’s supervisors had knowledge
of Bennett’s prounion sympathies. The element of animus,
especially toward those employees who wore prounion insig-
nia, is established throughout this decision. Therefore, the Gen-
eral Counsel has presented a prima facie case that Bennett’s
discharge was unlawfully motivated, and the burden shifts to
Respondent to demonstrate by a preponderance of the evidence
that it would have taken the same actions against Bennett even
in the absence of his known protected activities. Respondent’s
defenses must therefore be examined.
Mott testified that it was he who made the decision to dis-
charge Bennett. Mott was asked why he discharged Bennett,
and he replied, “[f]or jumping up into a foreman’s face in a
threatening way.” On cross-examination Mott was asked and he
testified:

Q. [By Mr. Bensinger]: Was Bennett fired for taking a
break?
A. No.
Q. Was that in any way, as far as you know, a factor in
Bennett being fired?
A. No, it was not a factor.

From these answers, from the recorded denials by Martin that
he was disciplining Bennett because he had started a break, and
from undenied testimony by Bennett that Martin and McDonald
had allowed short breaks, I conclude that Bennett cannot be
considered to have been loafing when he was first approached
by McDonald and Martin. The fact that a storm was approach-
ing is also rendered irrelevant by Mott’s admission.
(For possible purposes of review, however, I state the fol-
lowing: From the tapes and the credible parts of his testimony,
and the conflicts between his testimony and the tapes, I believe
that Bennett had completed the blowing down portion of his
first assignment, but he had not started the fine cleaning. He
was waiting for the dust to settle before he did the fine clean-
ing, and, while doing so, he took out a sandwich and soda. Mar-
tin wanted Bennett to finish the fine cleaning, and then start
sandblasting, but Bennett failed to put up the sandwich and
soda immediately upon being told. Bennett delayed until both
Martin and McDonald (in vile terms) told him to get back to the
fine cleaning. Other employees were then sitting around, wait-
ing for the sand pot to be filled. If he had finished the fine
cleaning, Bennett would have been sitting around also; he could
not have started the sandblasting work that Martin wanted to do
after the fine cleaning.)
AVONDALE INDUSTRIES

1247
Respondent states on brief that Bennett was discharged “for
insubordination and threatening Foreman Martin on July 20.”
According to the tape recording that Bennet made when he,
Martin and Mott were together at the gate on July 20, Martin
told Bennett that he was being discharged because, “you want
to keep arguing with me.” This was an accusation of insubordi-
nation, but it was not an accusation of threatening a supervisor.
The defense that Bennett was discharged for threatening Mar-
tin, therefore, is clearly an afterthought; moreover, there is no
evidence that Bennett did threaten Martin.
Mott was credible in his testimony that there was some con-
versation among himself, Bennett and Martin before the tran-
script of the second recorded conversation begins. The recorded
part of that conversation starts where Martin asks Mott, “What
do you want to do with him, Mott? Fire him?” There necessar-
ily had to have been some exchange before that point. Mott was
further credible in his testimony that during that unrecorded
portion of the exchange, he asked Bennett, “Did you jump up
into this man’s face?,” and Bennett replied, “Well, he had me
mad.” (Bennett denied ever being close to Martin, but on cross-
examination Bennett admitted that his pretrial affidavit states
that Martin was in his face during the exchange at the jobsite.)
I find that Bennett put his face close to Martin’s face during
the exchange at the jobsite. Bennett told Martin something, but
on the transcript Bennett never admits what he had said, if any-
thing, and there is no admissible, credible, nonhearsay,291 evi-
dence of what it was that Bennett said to Martin at the job site
(before they went to the toolroom). Assuming that finger shak-
ing could be considered to be threatening, there is also no evi-
dence that Bennett shook his finger in Martin’s face, as Re-
spondent contends. Even in the transcribed meeting of July 20,
Martin does not accuse Bennett of such; the most that Martin
said in that regard was that other people, including one woman,
had seen Bennett “pointing his finger” at Martin (from a dis-
tance that was not established in Respondent’s case). Finger
pointing may be considered rude in some quarters, but, with
nothing more, it can hardly be said to constitute a threat. Also,
there is no admissible, credible, nonhearsay evidence that Ben-
nett told Martin “I’ll show you a thing or two”; however, as-
suming that he did so, there is no reasonable basis for conclud-
ing that such a statement was a threat. Certainly, Martin does
not state at any point in the transcripts that Bennett did any
threatening thing or that he felt threatened by any statement that
Bennett had made. Also, as the recording of the conversation
among Bennett, Mott and Martin shows, Bennett was not told
that he was being discharged for threatening Martin. At most,
Martin told Bennett that he was being discharged for arguing
with him. Mott testified that he told Bennett that he was being
discharged because he was insubordinate “in a threatening
way,” but such a statement to Bennett does not appear in the
transcript of the second conversation that Bennett recorded.
That transcript picks up while Bennett’s discharge is still being
debated by Mott and Martin, and, if Mott had told Bennett that
he was being discharged for threatening Martin, it would have
been recorded. It appears that, like McDonald, Mott was testi-
fying from memory of his memorandum that Bourg read on
July 21, not his honest recollection of what had actually hap-
pened. In summary, Bennett was told that he was discharged

291 Accusations on the tapes, of course, are hearsay. They become
admissible as evidence of conduct only if the accused person agrees
that the accusation is valid.
for arguing with Martin, but he was not told that he had threat-
ened Martin.
Further in regard to the defense that Bennett somehow
threatened Martin, it is again to be noted that Respondent did
not call Martin to testify. In International Automated Machines,
285 NLRB 1122 (1987), the Board noted the “familiar rule”
that:

[W]hen a party fails to call a witness who may reasonably be
assumed to be favorably disposed to the party, an adverse in-
ference may be drawn regarding any factual question on
which the witness is likely to have knowledge. (2 Wigmore,
Evidence, § 286 (2d ed. 1940); McCormick, Evidence, § 272
(3d ed. 1984). See Greg Construction Co., 277 NLRB 1411
(1985); Hadbar, 211 NLRB 333, 337 (1974).)

Because Respondent did not call Martin to testify, even to make
an offer of proof, I infer that, had he testified, Martin would
have at least admitted that Bennett did not threaten him, nor did
he feel threatened by Bennett on July 20. Finally, there was no
evidence, or offer of evidence, that Bennett told Martin “I’ll get
you,” which is what Bourg accused Bennett of during the fourth
recorded conversation. For all of these reasons, therefore, I find
that the assertion that Bennett did something that was threaten-
ing to Martin is a mere afterthought, and Bennett did not
threaten Martin; nor did Bennett say or do anything that would
reasonably have been considered to be a threat to Martin.
Respondent also did not prove that Bennett was insubordi-
nate. On the tape of the discharge, Martin accuses Bennett of
being insubordinate by accusing him of arguing over the order
to stop his break and get back to work. This accusation, how-
ever, is not evidence. There is no evidence, or offer of evi-
dence, that Bennett told Martin that he would not, despite Mar-
tin’s order, discontinue his break. Also, although I do not be-
lieve that Bennett put up his sandwich and soda as soon as he
was first told to do so, there is no evidence of any more than a
momentary delay while Bennett complained of being unfairly
treated. Finally, even if McDonald were credited, the most that
was shown was that Bennett was rude and insolent, but there is
nothing that can be fairly characterized as insubordination,
especially when one considers the stream of curses from Martin
and McDonald to which Bennett had just been subjected.
I now consider the General Counsel’s alternative contention
that, even if he engaged in some degree of insubordination,
Bennett was treated disparately because other employees were
shown to have been insubordinate, but they were only issued
warning notices. The General Counsel introduced several warn-
ing notices that demonstrate that this contention is valid. I here
list several warning notices that the General Counsel placed
into evidence. Before beginning this listing, I must note that
immediate discharge offense-1 under the Avondale Employees’
Guide is “Insubordination. Willful disobedience of authorized
instructions issued by supervision.” Several of the following
warning notices quote this language, but the supervisors do not
mention “Immediate Discharge Offense-1.” This is because,
obviously, the employees are being warned, not discharged, for
being insubordinate.292 Apparently feeling constrained to check
something, the supervisors checked the boxes for “Other” Ma-
jor offense under the Avondale Employees’ Guide, or they

292 Of course, on Respondent’s warning notice forms, there are no
boxes to be checked for immediate discharge offenses, obviously be-
cause it would be illogical to warn employees against conduct for
which they are being discharged.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1248
checked the clearly inapplicable box for major offense-1 (“Un-
excused absences of three (3) or more consecutive working
days”); and, in two cases, general offense-4 (wasting time) or
“Other” general offense is checked by the supervisor for insub-
ordination. In all such cases, of course, the gravamen of the
offenses is insubordination. I include in this listing only those
warning notices issued to employees who, it appears from the
evidence, were not also discharged.293 I determine that the em-
ployees were not discharged because each of these warning
notices shows on its face that the employee was not also dis-
charged for his offense of insubordination (by being only a
warning notice for a general offense under the Avondale Em-
ployees’ Guide, or being a “final warning” or other remark) or
the existence in the exhibits of other evidence that the em-
ployee was not discharged (such as subsequent warning no-
tices).
The insubordination warning notices to paint department
employees other than Bennett include: (1) On December 14,
1990, paint department employee 5384 was issued a warning
notice signed by Bourg for: “Failure to comply with instruc-
tions given by supervisor.” (2) The same employee was issued
four more warning notices between December 14, 1990, and
October 1, 1991, at which time he was issued a warning notice
signed by Bourg for: “Willful disobedience of authorized in-
structions by supervisor. Employee was told to do a certain job.
Employee argued with the foreman but eventually did the work.
This type of action will not be tolerated by this dept. You are
hereby warned. Final Warning.”294 (3-5) On February 1, 1991,
paint department employees 1697, 10056, and 471 were each
issued a “Final Warning” because they: “Refused to do the job
assigned you by a supervisor. Signed out and went home.”
(Employee 471, however, received two more warning notices
during the following year and she still was not discharged, a
fact reflected by yet another warning notice.) (6) On June 19,
1991, paint department employee 2914 was issued a major
offense-2 (intentional negligence) warning notice for “Failure
to follow instructions by supervisor.” (Bourg, the department
superintendent, signed this warning notice. Presumably he
would not have bothered to issue, and retain, a warning notice
if the employee was also being discharged.) (7) On August 22,
1991, paint department employee 1001 was issued a warning
notice by Bourg and Mott for: “Willful disobedience of instruc-
tions issued by supervisor. Employee refused to work under the
foreman she was assigned to. She reported to another foreman
of her choice for work and informed this foreman that her for-
mer foreman had sent her to him. She lied to the foreman.” (8)
On the very next day, August 23, 1991, employee 1001 was
issued another warning notice by Bourg and Mott for. “Willful
disobedience of instructions issued by supervisor. Employee
refused to work under the foreman she was assigned to. You
are not to report to any other foreman unless notified by your
supervisor. If you continue to do this, you will be terminated.
Final Warning.” (Employee number 1001 was issued several
subsequent warning notices for violations that included report-
ing late or leaving early, and she was still not discharged.) (9)
On September 10, 1991, paint department employee 4747 was
issued a warning notice, signed by Bourg, that states as the

293 The General Counsel offered several more insubordination warn-
ing notices, but I cannot tell from the face of them, or from other
documentation, that the employees were not also discharged for the
offense listed.
294 Bennett had no prior warning notices at the time of his discharge.
reason for the warning: “Willful disobedience of authorized
instructions issued by supervision.” (Bourg, the department
superintendent, signed this warning notice. Presumably he
would not have bothered to issue, and retain, a warning notice
if the employee was also being discharged.) (10) On February
18, 1992, paint department employee 1019 was issued a “Final
Warning” for: “Insubordination. Willful disobedience of au-
thorized instructions issued by supervisor. Employee refused to
pick up trash between 3:00 and 3:30 p.m. Violation of any other
Company rules or regulations will result in your termination.”
(11) On March 11, 1992, paint department employee Arthur
Bradford was issued a general offense-12 (safety) warning
notice because: “Employee refused to put a fire out after his
foreman [Pierre] told him to.” (Aside from being only a general
offense warning notice, Bourg also signed and retained it, thus
indicating that the employee was not discharged.) (12) On June
23, 1992, paint department employee 732 was issued a major
offense-2 warning notice that stated: “Failure to follow supervi-
sor’s instructions given. Employee is given a work assignment
and constantly complains and argues about the assignment[s]
with foreman before doing work assigned.” On the same day,
this employee was issued a general offense-4 warning notice
for wasting time. During the preceding 7 months, this employee
had also received two warning notices, one for a safety viola-
tion and one for sleeping, which is immediate discharge of-
fense-2 under the Avondale Employees’ Guide.295 (13) On
December 4, 1992, paint department employee 3082 was issued
a general offense-4 (wasting time) warning notice for being
absent from his work place for 28 minutes, then: “When ques-
tioned about whereabouts, employee used profanity toward the
foreman (W416) [Alvin Tate] and refused to answer for his
whereabouts. Violation of any other Company rules or regula-
tions will result in your termination. Final Warning.” (14) On
January 27, 1993, paint department employee 774 was issued a
general offense warning notice (marked “Other”) by Mott,
which notice was signed (and retained) by Bourg for: “Failure
to follow instructions issued by foreman. Employee refused to
get off a bucket while [he was supposed to be] working.” (15)
On May 12, 1993, paint department employee 2318 was issued
a warning notice signed by Bourg stating: “You are hereby
notified that you have willfully disobeyed [an] authorized in-
struction issued by your supervisor. Should you continue to do
this, immediate disciplinary action will be taken. Final Warn-
ing.” These warning notices for insubordination, continuing
chronologically until just weeks before Bennett, at most, mo-
mentarily argued with Martin, show that employees who did
much worse, and who had prior bad work histories (including
the commission of immediate discharge offenses under the
Avondale Employees’ Guide), were not discharged for their
insubordination; rather, again, they were only issued warning
notices. Respondent offered no surrebuttal why Bennett was
discharged and these other paint department employees were
not.
Also the General Counsel introduced warning notices that
were issued in the 1990–1994 period for insubordination by
Respondent’s other departments, and it appears from the evi-
dence that these employees were not also discharged for the
offenses cited: (16) On January 28, 1991, shipfitting depart-
ment employee John L. Smith was issued a warning notice that

295 This warning notice is also mentioned in the case of alleged dis-
criminatee Jose Aguilar, infra.
AVONDALE INDUSTRIES

1249
tracked immediate discharge offense-1 of the Avondale Em-
ployees’ Guide and was worded: “Insubordination, willful dis-
obedience of authorized instructions issued by supervision.
Final warning.” (17) On January 28, 1991, shipfitting depart-
ment employee 4310 was issued a warning notice that was
worded identically. (18) On May 16, 1991, shipfitting depart-
ment employee Calvin Willis was issued a warning notice for
“Deliberate failure to comply with instructions given by a su-
pervisor in the performance of his duties. Note: Any further
offense against Avondale policies and procedures will be
grounds for termination.” (On the warning notice, the supervi-
sor circled the box for major offense-12, interference with plant
guard or other official in the performance of “his” duties.) (19)
On July 9, 1991, outside machinist Therron Comeaux was is-
sued a warning notice stating: “Insubordination, not following
instruction to job assignment as issued by supervisor. Final
Notice.” (20) On June 12, 1992, machine shop employee Alex-
andra Barrera was issued a major offense-2 (failure to complete
job) warning notice for outright refusals to perform an assign-
ment; the notice concludes, “and I told her she will get a cita-
tion for coercing.” (21) On November 3, 1992, Ships Opera-
tions Department General Foreman Robert Olmstead wrote an
extensive memorandum to Jeffery Boudreaux, the superinten-
dent of the department. In the memorandum Olmstead details a
litany of insubordinate conduct by employee Andy Anderson.
The memorandum recites that Anderson had refused to do cer-
tain jobs and lied to supervisors about his assignments from
other supervisors. Attached to the memorandum were memo-
randa from other supervisors to whom Anderson had been in-
subordinate. Olmstead’s memorandum concludes that: “Andy
violated one general (4) [General offense-4 under the Avondale
Employees’ Guide], two majors (2 &12), and the Immediate
Discharge Offense (1) all because of an attitude. Andy Ander-
son, Clock No. 4638, gives me no choice but to discharge him.”
Olmstead signed the memorandum, but, below that, is printed,
presumably by Boudreaux: “Andy was not discharged; he was
given an official warning notice.” Anderson was, indeed, issued
a warning notice, with the boxes checked for general offense-4
(wasting time) and major offense-2 (failure to complete job
assigned), and major offense-12. The warning notice concludes;
“Further repeat of this offense will result in his immediate dis-
charge.” (22) On January 15, 1993, operators department em-
ployee Joey Ockman was issued a warning notice that was
worded: “Insubordination, willful disobedience of authorized
instructions issued by supervision. Final warning.” (And Ock-
man subsequently received a warning notice for counterfeiting
a company pass.) (2) On June 7, 1993, shipfitting department
employee Carolyn Ratcliff was issued a warning notice for:
“Insubordination. Employee arguing with supervisor over job
assignment and what is required of employee to do. Continue to
do so will result in your discharge.” (23) On April 18, 1994,
electrical department employee Bennie Jackson was issued a
warning notice that was also worded: “Insubordination, willful
disobedience of authorized instructions issued by supervision.
Final warning.” (24) On April 18, 1994, electrical department
employee Bennie Jackson was issued a warning notice that was
identically worded. Like the cases of the paint department in-
subordination warning notices, Respondent offers no evidence,
or explanation, why these employees of other department’s,
some of whom had prior records of warning notices, including
final warnings, were issued warning notices for insubordinate
conduct but Bennett was discharged.
In summary, Mott testified that Bennett was discharged for
threatening Martin, but there is no evidence that Bennett threat-
ened Martin. Also, Respondent contends that Bennett was in-
subordinate to Martin at the jobsite (not in the toolroom or
thereafter, it is to be remembered), but there is no evidence that
Bennett was insubordinate. To the extent that Bennett could
possibly be found to have been insubordinate, the General
Counsel has shown that a significant number of other employ-
ees engaged in worse conduct, but they were only given warn-
ing notices; they were not discharged, as was Bennett. I there-
fore find that Respondent has failed to show that Bennett en-
gaged in the misconduct it alleges to have been the basis for the
discharge, and Respondent has failed to demonstrate that Ben-
nett would have been discharged even absent his union activi-
ties. The General Counsel’s prima facie case of unlawful dis-
crimination against Bennett has therefore not been rebutted.
Accordingly, I find and conclude that, by the July 20, 1993,
discharge of Bennett, Respondent has violated Section 8(a)(3).
h. Joseph Simpson’s discharge for insubordination
Joseph Simpson (vol. 18) was employed as a fiberglass me-
chanic in the shipfitting department until he was discharged on
March 9, 1994.296 The second complaint, at paragraph 143,
alleges that Simpson’s discharge violated Section 8(a)(3). The
General Counsel contends that Respondent discharged Simpson
because of his known union activities and expressions of sym-
pathy which included his wearing prounion insignia, his refus-
ing a supervisor’s request to campaign against the Union, and
his once displaying before a supervisor a handbill that he had
received from the Union. Respondent answers that its supervi-
sors had no knowledge of any prounion sympathies that Simp-
son may have held at any relevant time. It further answers that
Simpson was discharged on March 9 solely because he had
failed to complete a job assignment on March 8 and, when his
supervisor presented him a warning notice for that conduct on
March 9, Simpson was insubordinate. The General Counsel
replies that Simpson completed the March 8 assignment as
expeditiously as possible under the circumstances and he was
not insubordinate toward the supervisor when the warning no-
tice was presented. Ultimately, I find and conclude that Simp-
son was loafing on March 8, but that loafing was not the reason
for the discharge, and the reasons offered for the discharge are
false and pretextual; I therefore conclude that Simpson was
discharged in violation of Section 8(a)(3).
Simpson worked as a first-class painter until June 7, 1993,
when he was assigned to the shipfitting department. In the ship-
fitting department, Simpson worked under Anthony Bishop, a
foreman, and one Arthur Slocum, a supervisor under Section
2(11) of the Act.297 Simpson testified that he began wearing a
“Union-Yes” sticker on his hardhat, and began accepting union
handbills, about 2 weeks before the June 25, 1993, Board elec-
tion. Simpson testified that in the 2-week period before the
election, Bishop spoke to him three times about his “Union-
Yes” sticker or the Union. (The General Counsel offered Simp-
son’s testimony about these three occasions solely as evidence
of supervisory knowledge of Simpson’s prounion sympathies,

296 All dates mentioned in Simpson’s case are in 1994, unless other-
wise indicated.
297 Respondent’s witnesses described Slocum as a leadman; how-
ever, in its answer to the second complaint, Respondent admits that
Slocum was classified as a foreman and that he was a supervisor within
the meaning of Sec. 2(11) of the Act. Slocum did not testify.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1250
not as evidence of 8(a)(1) violations.) On the first such occa-
sion, according to Simpson:

Me and Mr. Bishop was walking on the dock, and he
passed me, and he said, “You ought to take that off your
hat, take that thing off your hat.” . . .
I didn’t say anything. I kept on walking and so did he.

Simpson testified that on another occasion in that period,
Bishop saw him reading a union handbill (apparently on work-
ing time). Bishop told Simpson that he could get into trouble
for reading “that Union flyer.” On the third such occasion, ac-
cording to Simpson:

[Bishop] said, “You know about unions, Joe; you was in the
Union. You know the Union can’t do nothing for you over
here at Avondale. You all will end up like those people at
Bayou Steel [a struck, and closed, plant in the area] with no
job. And he asked me, “Why don’t you tell the fellows that
the Union can’t do nothing for them.”
I told him, “ I couldn’t do that. I let everybody make
their own mind up about their family. I know what is best
for my family.”

Bishop denied this testimony, but I found all of it credible.
The General Counsel relies on other testimony by Simpson
as support for a 8(a)(1) allegation. Simpson testified that, in
February,298 some employees posted a union handbill in an
office area that Bishop used. When Bishop entered the office,
according to Simpson: “[Bishop] wanted to know who had put
that up there on the wall, that Union flier. . . . No one said any-
thing. . . . Mr. Bishop then tore it down.” Based on this testi-
mony by Simpson, paragraph 78 of the second complaint al-
leges that Respondent, in violation of Section 8(a)(1), by
Bishop, interrogated its employees.299 Simpson’s testimony was
credible as far as it went, but Simpson was not asked what
words Bishop used to express what he “wanted,” and I can
perceive no coercive impact that may have been wrought by
Bishop’s “wanting” to know who posted the handbill. That is,
Simpson’s conclusionary testimony cannot support the finding
of a violation. I shall therefore recommend dismissal of this
allegation of the complaint.
“Over-spray” is the misting effect that some painting at the
plant has; some employees had complained that over-spray had
fallen on their automobiles and damaged the finishes. Simpson
further testified that on March 3, as the employees gathered in a
shipfitting department office, he and other employees were
discussing a union handbill that mentioned over-spray and a
scheduled union meeting. Simpson testified that Bishop entered
the room just as he was saying to the group that: “I know I will
be going to this meeting, because they be talking about over-
spray, and I had over-spray on my car.” Simpson further testi-
fied that within the next few minutes Slocum gave him the
day’s assignment. Simpson openly wrote the assignment on the
handbill which he placed on a table directly before Slocum. The

298 Actually, Simpson testified that he was referring to February
1993; however, there was no open organizational effort in February
1993, and Simpson was not in the shipfitting department until June
1993; therefore, Simpson was necessarily referring to 1994.
299 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against Simpson, as well as the
charge in Case 15–CA–12171–1.
original of the handbill was placed in evidence. As noted,
Slocum did not testify. On direct examination Bishop (vol. 84)
was shown the handbill and asked if he remembered seeing
Simpson with it; Bishop testified that he could not. This was
less than a denial of Simpson’s testimony. I found Simpson’s
testimony about the events of March 3 to be credible.
Simpson’s Discharge—the General Counsel’s Evidence
At the time of his discharge, Simpson was a fiberglass me-
chanic on a fiberglass-hull ship, a mine-sweeper. The ship was
under construction in the water (as opposed to being propped
up on land). Because the hull and main infrastructure of the
mine-hunter are fiberglass, things cannot be bolted or welded to
it as they can on metal-hull boats. Therefore, when supports are
needed for appliances (or other necessities), the hull is built up,
or embossed, with other fiberglass. To construct these emboss-
ments, fiberglass is layered in cloth-like sheets onto the hull.
The procedure for obtaining and laying fiberglass is this: After
a fiberglass mechanic receives his assignments from a foreman,
he grinds and sands the areas where the sheets of fiberglass are
to be placed. (Sometimes, the mechanic has a helper to com-
plete this part of the job.) The mechanic measures the areas to
receive embossments, leaves the ship, and goes to a fiberglass
cutting room that is in a building on the dock. At the cutting
room, the mechanic requests the number and sizes of fiberglass
sheets that he will need. After the sheets are cut to order, the
mechanic takes them to an adjacent part of the building where
liquid resin is dispensed to him, the amount being determined
by the weight of the fiberglass. The resin is coated between the
fiberglass sheets to promote bonding. After receiving the fiber-
glass and resin, the mechanic returns to the prepared area and
lays the sheets. There are usually two workers in the cutting
room and two in the resin room. At the beginnings of shifts,
cutters first cut only a percentage of the sheets that a mechanic
requests. This procedure allows several fiberglass mechanics to
get started early in the shift on the different jobs on the ship.
Then, as the mechanics finish laying their initial allotments,
they return to the cutting room for the remainder of the sheets
that they had requested. (The alternative to this procedure
would be to have some mechanics waiting, possibly for hours,
while other mechanics get all the fiberglass that they need for a
shift.) Because of the dust and fumes that are created by the
fiberglass installation processes, fiberglass work is done princi-
pally on the second shift, from 3:30 to 12 o’clock, and Simpson
did work on that shift. The established meal period on the sec-
ond shift is from 8:30 until 9 p.m.
Simpson testified that on March 8 Slocum gave him and a
helper two jobs.300 The first job was to lay five pieces of fiber-
glass at one point on the boat. The second was to start on a
project that had a total of 140 pieces. Simpson testified that he
expected to finish all 5 pieces of the first job, and about 70
pieces of the second job, on that shift. Simpson measured the
jobs and went to the cutting room and ordered all 145 pieces of
fiberglass, asking that the 5 pieces for the first job be cut first.
Simpson testified that he received the five pieces for the first
job about 6 p.m., and he completed the first job, including some
cleanup work, about 6:30 p.m. Simpson testified that Slocum
was in his work area when he finished the first job; he told

300 On brief, the General Counsel contends that the helper was Cla-
rence Stokes. Although Simpson testified that Stokes was present, he
did not testify that Stokes was his helper. Bishop credibly testified that
the helper was J. C. Murphy. Neither Stokes nor Murphy testified.
AVONDALE INDUSTRIES

1251
Slocum that he would go back to the cutting room to get more
fiberglass at 7 p.m., and Slocum agreed. (No explanation for
the 30-minute delay was offered.) When he got to the cutting
room, none of the fiberglass for the second job was ready; also,
the cutting room employees had just finished a bolt of the fi-
berglass cloth, and a new bolt had to be loaded. Simpson helped
the “two fellows” load the bolt. (Simpson did not testify about
how long it took to load the bolt.) Simpson left the cutting room
and went to the resin room because “I was informing the fellow
as to the material that I was going to be getting, so he would
have a general idea as to, you know, some weight of what I
would be getting for resin.” Simpson further testified that he
returned to the cutting room “about” 8 p.m., and the first 70
pieces for the second job were then ready for him. When he got
back to the resin room with the cut fiberglass, there were others
in line before him, and he had to wait his turn. While waiting
his turn in the resin room, Simpson met Slocum who had come
there. According to Simpson, he explained that he had gotten
his fiberglass, and he was still waiting for resin, but then it was
approaching meal time. Slocum agreed that Simpson should
take his meal before he went back to the ship. (Whether Simp-
son then went to eat, or continued to wait for resin until the
8:30 p.m. lunchtime, was not asked.) After finishing lunch at 9
p.m., Simpson returned to the resin room; he still did not get his
resin immediately because “I came back to the resin room and
they had the people that was before me about four or five fel-
lows, and they was getting these materials weighed up and
getting their resin, and they only had one person in there at that
time. There would normally be two.”
Simpson testified that he returned to the ship about 9:10
p.m.. Shortly after he arrived, Bishop arrived and asked if the
five pieces of the first job was all that Simpson had gotten done
since the start of the shift; Simpson replied that it was. Bishop
accused Simpson of loafing. Simpson replied that he could not
lay sheets of fiberglass that he did not have, and “[t]hat is all I
had to lay.” Bishop responded that he should fire Simpson;
Simpson again stated to Bishop that the five pieces of the first
job was all that he had to lay until that point and that “I didn’t
have time to argue with him.” Simpson then turned and went to
work. Simpson laid the 70 sheets that he had secured for the
second job by 11:30 p.m. Then he went to the dock, in the area
of the resin room, to clean certain implements before the end of
the shift.
At the dock, Simpson was approached by Bishop who pre-
sented Simpson with a warning notice that was signed by
Bishop (as “Supv. or Department Head”) and Slocum (as “Wit-
ness”). The box for major offense-2 of the Avondale Employ-
ees’ Guide is circled; the reason for warning space is com-
pleted: “Employee intentionally neglected to complete job as-
signed by foreman.” Simpson read the warning notice and
handed it back to Bishop stating that he would not sign it. After
that, according to Simpson:

He [Bishop] said, “Well, you are going to get a copy
anyway.”
And I said, “How? Are you going to shove it into my
pocket?”
He said, “Yes.”
I said, “I don’t think so. That is why they need a union
around here, so you all can’t do what you all want.”
He walked away, and I went back to the resin room
and finished my cleanup and what I was supposed to do
before the shift was over.

Simpson testified that Bishop did not tell him during that eve-
ning of March 8 that he was discharged. When he arrived the
next day, however, he was met by Bishop and one Oliver Gills
(who was not otherwise identified). Bishop told Simpson that
he was terminated; Simpson did not testify that he asked for the
reason. Simpson left the plant after picking up his personally
owned tools.
Simpson’s Discharge—Respondent’s Evidence
Bishop (vol. 84) testified that there was only one job as-
signed to Simpson on March 8; it consisted of laying about 100
pieces of fiberglass; he and Slocum gave the assignment to
Simpson and the helper at 3:30 p.m., the start of the shift.
Bishop testified that he expected Simpson to have completed
about one-third of the work by the end of the shift. About 5:30
or 6 p.m., Bishop went by Simpson’s work site and saw that
five pieces of fiberglass had been laid, and all other areas had
been prepared for the laying of fiberglass, but neither Simpson
nor the helper was there. Bishop testified that he assumed that
they had gone to get more materials. About 9 p.m. Bishop re-
turned to the worksite where he saw that no additional work
had been done since his first inspection about 6 p.m. Bishop
asked Simpson why he had not gotten more work done, and
Simpson “told me that he had been waiting on glass to be cut.”
Bishop went to the cutting room and spoke to the attendants,
Gary Lenfest and John Walsh. Lenfest told Bishop that Simp-
son’s order had been completed by 6 p.m.; Bishop checked the
paperwork that the cutting room creates (and retains for about 1
week), and the paperwork also reflected that the order had been
completed at 6 p.m. Bishop returned to Simpson. According to
Bishop:

I told Mr. Simpson that I had checked [with] the cut-
ting room attendants, and they had told me that he had re-
ceived all of his glass at 6:00 . . . And I told him that he is
not performing to the best of his ability, that he is not do-
ing anything, and that I wasn’t going to tolerate it.

. . . .

He said that he didn’t care how much work he had
done. . . . [and] that I could do whatever I wanted to do.

. . . .

[A]nd I told him that it was my full intent to write him a warn-
ing slip for his lack of production for that day. . . .
And I went to the office, and I wrote his warning slip.

Bishop further testified that he returned to Simpson with the
above-quoted warning notice. According to Bishop Simpson
refused to accept the warning notice and:

Then he also said that he was going to go to the Navy
and tell them what we were doing out there. And I don’t
know what he meant by that.
But then I asked him if he was threatening me or the
Company. And he said, “No, I am just telling you what I
am going to do.”

On direct examination Bishop testified to nothing further that
Simpson said when the warning notice was presented. Bishop
denied that Simpson said anything about the Union during the
exchange.
Bishop testified that after Simpson made his reply about go-
ing to the Navy, he then thought Simpson should be discharged,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1252
but he did not then know the main-yard procedures for termi-
nating an employee. (Bishop had transferred to the main yard
from another yard about a year before, and there is no evidence
that he had been involved in any main-yard discharge before
Simpson’s.) He wanted to call Shipfitting Department Superin-
tendent Richard (Red) Wallace, but it was then nearing mid-
night. From his home the next morning, Bishop made telephone
contact with Wallace who was then at the plant. Bishop was
asked and he testified:

Q. And what did you say in that conversation, that you
recall?
A. I told him what the situation was, that I had a prob-
lem with Mr. Joe [Simpson], that he was insubordinate
towards me, and that he was exhibiting lack of production.
Q. And what, if anything, do you recall Red Wallace
saying?
A. Yes. Red Wallace told me that when Mr. Joe came
in that afternoon that—when I got to work, that when Mr.
Joe came in that afternoon, to ask for his badge and tell
him that he no longer works for Avondale, that he has
been terminated.
Q. Was there anything else that was said in this con-
versation that you recall?
A. No.
Q. Do you recall whether or not you told Red Wallace
that Joe Simpson said he was going to go to the Navy in
that conversation? . . .
A. Yes. I did tell him that. I sure did. I do recall that.
Q. Was there anything else you recall saying to Red
Wallace in that conversation?
A. No.
Q. Do you recall whether or not you told Red Wallace
that Joe Simpson had said he didn’t have to work for
someone who looked like you? . . .
JUDGE EVANS [To the witness, after objections and a
ruling:] I need to know what you said out loud.
THE WITNESS: I told him that I had a problem with
[Simpson] and that—yes, that he did—he made some
comments about the Navy, you know, going to the Navy,
and that he didn’t have to—he wasn’t worried about how
much work he had had done and that he wasn’t worried
about anybody that looked like me. . . .
[T]hen he [Wallace] said, “Well, as far as I am con-
cerned, he is terminated. . . . When . . . he comes in this af-
ternoon, ask him for his badge and tell him he no longer
works for Avondale, that he has been terminated.”

(Bishop’s memory had been exhausted, and the leading was
done in proper form, but it was, nevertheless, leading, as I dis-
cuss, infra.) Bishop further testified that, when he arrived at
work before the shift started on March 9, he asked Wallace if
he was sure that he wanted Simpson discharged; Wallace re-
plied that he was. When Simpson arrived at work about 3:30
p.m. on March 9, Bishop approached Simpson, asked for his
badge and told Simpson that he was discharged. According to
Bishop, Simpson stated again that he would go to the Navy;
Simpson then added that he could get Bishop discharged if he
did go to the Navy.
On cross-examination, Bishop testified that he and Wallace
made the decision to discharge Simpson together, but Wallace
had the “final say-so.” When asked what the reason for the
discharge was, Bishop answered “insubordination.” When
asked what that consisted of, Bishop testified:

[T]he fact that he told me he didn’t care how much
work he got done, he wasn’t worried about anybody that
looked like me, and plus the fact that he told me he was
going to go to the Navy and tell the Navy what we been
doing out there.

(That is, on cross-examination Bishop testified that the things
that he had told Wallace in their conversation during the morn-
ing of March 9 were true.) Bishop testified that he did not know
what Simpson meant by saying that he was not worried about
anybody who looked like him, but, “I felt like he was objecting
to my authority.” Finally on cross-examination, Bishop ac-
knowledged that the helper did not receive a warning notice on
March 8, for lack of production or anything else.
Bishop and Simpson are members of different races. As I
stated at the hearing, I conclude that, if an employee of one race
states to a foreman of a different race words to the effect, “I
don’t have to listen to anybody who looks like you,” the em-
ployee is making a statement that the foreman need not be lis-
tened to because of his race. Clearly, such a statement, if made,
could be grounds for valid discharge. When he testified, Simp-
son denied telling Bishop that he did not care what work that he
got done; he denied telling Bishop that he was not worried
about what anybody that looked like Bishop did; and he denied
telling Bishop that he would go to the Navy and cause prob-
lems.
Respondent called cutting room employee Lenfest (vol. 84)
who testified that, between 5 and 6 p.m. on March 8, Bishop
came to the cutting room and asked when Simpson had picked
up his fiberglass. According to Lenfest: “I told him [Bishop]—
his [Simpson’s] glass was still there, so he hadn’t come got it. I
believe I gave him a few pieces to start with, but the majority of
his glass was ready for him.” Lenfest testified that it was not
unusual for Bishop to come to the cutting room and ask when
employees had received the fiberglass that they had ordered.
Wallace (vol. 79) testified that, in the telephone conversation
with Bishop on the morning of March 9, Bishop told him of
Simpson’s conduct. Wallace testified that Bishop told him that
Simpson had said that he would work no harder, that he would
go to the Navy, and that “the black man didn’t have to run any
more, and he didn’t have to take orders from Tony or from
anybody who looked like Tony.” Wallace further testified that
Bishop told him that he had already discharged Simpson, and
Bishop asked Wallace if he had done the right thing; Wallace
testified that he told Bishop that he had. To process Simpson’s
discharge, Wallace completed the ASI-22 (discharge) form. In
the space for “Explanation For Action,” Wallace wrote: “Inten-
tional negligence, insubordination and loafing during working
hours. Employee made threatening statements towards the
Company.”
Simpson’s Discharge—Credibility Resolutions
and Conclusions
Simpson was credible in his testimony about wearing proun-
ion insignia, and he was credible in his testimony of what
Bishop said about it. Further, as I have noted, Simpson was
credible in his testimony about refusing Bishop’s request that
he campaign against the Union. Finally, Simpson was credible
in his testimony about announcing that he would attend a union
meeting and displaying a union handbill in front of Bishop and
AVONDALE INDUSTRIES

1253
admitted Supervisor Slocum just a few days before his dis-
charge. I find that Respondent’s supervisors had knowledge of
Simpson’s prounion sympathies at the time of his warning and
discharge. The element of animus, especially toward those
employees who wore prounion insignia, is established through-
out this decision. Therefore, the General Counsel has presented
a prima facie case that Simpson’s discharge was unlawfully
motivated, and the defenses for the discharge must be ad-
dressed.
I do not believe Simpson’s testimony that on March 8 he re-
ceived no fiberglass until 6 p.m., or 2-1/2 hours after the shift
started. Respondent has a system (initial partial distribution of
the fiberglass to all of the mechanics) designed to prevent ex-
actly that sort of delay. Moreover, Lenfest was credible in his
testimony that Simpson received an initial portion of his fiber-
glass early in the shift, and the rest of his order for the day was
ready by 6 p.m., but Simpson simply did not pick it up. I do not
believe Simpson’s accounts of delays at the cutting room and
the resin room; but, even in his account, there are unexplained
periods of delay.
Bishop testified that when he told Simpson that his 2-hour
failure to get anything done could not be attributed to delays by
the cutting room personnel, Simpson replied that he did not
care what amount of work that he got done. This testimony was
given by Bishop without leading, and I credit it. (Moreover,
Respondent introduced unrebutted, and credible, evidence that
Simpson had previously made a statement to a meeting of all of
the fiberglass employees and supervisors that he would not
work any harder than he wanted.) Bishop further testified that,
when he presented Simpson with the above-quoted warning
notice, Simpson told Bishop that he was going to go to the
Navy and inform the Navy of unspecified misconduct by Re-
spondent. This much of Bishop’s testimony was also elicited in
nonleading fashion, and I credit it. I further believe, and credit,
Bishop’s denial that Simpson mentioned the Union during the
exchange in which the March 8 warning notice was presented.
Although he came around to it on cross-examination, Bishop
did not testify on direct examination that, when he presented
the warning notice to Simpson, Simpson said that he did not
have to worry about anybody who looked like Bishop. Had this
racial remark (as I shall call it) been made by Simpson, it would
have been impressive, if not shocking, to Bishop, so much so
that Bishop would not have omitted it from his direct examina-
tion. Bishop did testify on direct examination that he told Wal-
lace, in their telephone conversation of March 9, that Simpson
had made the racial remark, but Bishop did so only after word-
for-word leading by counsel. Again, if Simpson had made such
a remark, Bishop would have so testified on direct examination,
and Bishop would have testified that he told Wallace about it
without the leading that he required on direct examination. I
credit Simpson’s denial that he told Bishop that he did not have
to worry about supervisors who looked like Bishop.
I further do not believe that Bishop told Wallace that Simp-
son made the racial remark; if he had, again, Bishop would not
have needed leading to so testify. I further discredit Wallace’s
testimony that Bishop told him of the alleged racial remark.
Bishop and Wallace squarely conflicted in their testimonies
about who made the decision to discharge Simpson: Bishop
testified on direct examination that he called Wallace and re-
ported only what had happened, without making a recommen-
dation. (On cross-examination, Bishop first testified that he
made no recommendation to Wallace about what to do with
Simpson; then he testified that he made a recommendation to
discharge Simpson.) Bishop testified that Wallace responded to
his report: “[A]sk him for his badge and tell him he no longer
works for Avondale, that he has been terminated.” Bishop fur-
ther testified that, when he reported to work on the afternoon of
March 9, he checked with Wallace to make sure that Wallace
still wanted Simpson to be discharged, and Wallace replied that
he did. Wallace, however, testified that Bishop told him, on the
evening of March 8, that he had already discharged Simpson.
The conflict, and Wallace’s embellishment that Bishop reported
that Simpson told him that “the black man didn’t have to run
any more,” lead me to believe that neither supervisor was tell-
ing the complete truth about what was said when Bishop re-
ported the alleged misconduct of Simpson, and my conclusion
that Simpson did not make the racial remark is thusly fortified.
In summary, I find that there were two exchanges between
Simpson and Bishop on March 8 after Bishop had checked with
the cutting room; in the first, when Bishop confronted Simpson
with what Lenfest had said, Simpson replied that he did not
care how much work he had gotten done; in the second, when
Bishop returned with the warning notice, Simpson stated that
he was going to the Navy, but he did not state that he did not
have to worry about persons who looked like Bishop. Finally, I
find that in their exchange of March 9, when Bishop told Simp-
son that he was terminated, Simpson repeated that he would go
to the Navy, and at that time Simpson added that he could have
Bishop discharged.
On the warning notice that Bishop presented to Simpson, af-
ter Simpson told him that he did not care how much work he
had gotten done, Bishop circled major offense-2 of the Avon-
dale Employees’ Guide which is: “Intentional negligence, inef-
ficiency or failure to complete job assigned.” In the space for
reason for warning, Bishop wrote on the notice: “Employee
intentionally neglected to complete job assigned by foreman.”
the General Counsel argues that Bishop testified on cross-
examination that he had not even expected Simpson to com-
plete the job on March 8; he expected Simpson only to lay
about one-third of approximately 100 sheets during the shift.
From this factor the General Counsel argues that the warning
notice was invalid, if not discriminatory, itself. The General
Counsel argues that Simpson was, at worst, guilty of general
offense-4, wasting time. I reject this argument. Simpson’s tell-
ing Bishop that he did not care how much work that he got
done was an expression of intention not to do more work than
the employee wanted to do. It would not be unreasonable for
Bishop to invoke the offense which included an “intentional”
offense, even if the “neglected to complete job” notation did
not precisely fit the circumstances because Bishop had not ex-
pected Simpson to complete the entire job during the shift.
Bishop had expected Simpson to get at least something done
between 6:30 and 8:30 p.m.; Simpson got nothing done; and
Bishop confirmed (with Lenfest) that Simpson’s expressed
reason for not getting anything done was false. Therefore,
Bishop could reasonably conclude, and I find that he did con-
clude, that Simpson had been intentionally loafing, an offense
best encompassed by the language of major offense-2 of the
Avondale Employees’ Guide.
Bishop admitted that the helper received no warning notice
on March 8; Bishop further admitted that he had never seen the
helper wear prounion insignia. From these admissions, the
General Counsel argues that Simpson must necessarily have
been discriminated against because, if Simpson had been loaf-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1254
ing, the helper must have been loafing also. This argument
assumes that the helper received no assignments other than
helping Simpson, something that the General Counsel did not
prove. For all of these reasons, therefore, I would not find a
violation of Section 8(a)(3) in the issuance of the March 8
warning notice, even if the allegation had been made.
The discharge of Simpson, however, raises different consid-
erations. The testimonies of Bishop and Wallace conflict, and
are incredible, on many accounts. Taken at best, however,
Bishop and Wallace testified that Simpson was discharged
because of (1) his loafing, (2) his statement that he did not care
how fast he worked, (3) his threat to go to the Navy when he
was presented with the warning notice, and (4) his racial re-
mark when he was presented with the warning notice. These
reasons being couched in the conjunctive, all must have been
proved for Respondent to have presented a Wright Line de-
fense.301
Simpson’s statement that he did not care how fast he worked
was made before he was issued the warning notice, and it was
part of the reason for the warning notice, and the statement was
necessarily punished by that warning notice. Therefore, al-
though Simpson made the statement, it, as well as his loafing,
was punished in the warning notice, and the conjunctive de-
fense fails on that account. Moreover, Simpson’s statement that
he would go to the Navy was simply not an offense, as Produc-
tion Vice President Michael Simpson admitted on cross-
examination (vol. 139). This is another failure of the conjunc-
tive defense. Finally, the fourth leg of the conjunctive defense
has already fallen by my finding, above, that the reason is false;
Simpson did not make the racial statement that Respondent
attributes to him.
The injection of this false element into the litany of reasons
for the discharge shows its pretextual nature. More evidence of
pretext is shown by Wallace’s testimony that Simpson was
discharged, in part, because Simpson had told Bishop that
Simpson could cause Bishop to be discharged when he went to
the Navy. Of course, Bishop testified that this last remark was
made only after he had told Simpson that he was discharged,
and it could not have been a part of the reason for Simpson’s
discharge. That is, Simpson actually did loaf, he said that he did
not care about how much work he got done, and he said that he
would tell the Navy about things that Respondent was doing.
But, if in their own minds, those three reasons were sufficient
cause for Simpson’s discharge, Bishop and Wallace would have
listed only those three reasons. Instead, Bishop (after leading)
injected the pretext of the racial remark, and embellished upon
it, demonstrating that all of the reasons that Respondent offered
for Simpson’s discharge were pretextual.
As Respondent has failed to show that Simpson was dis-
charged for nonpretextual reasons, Respondent has failed to
demonstrate that Simpson would have been discharged even
absent his known prounion sympathies. The General Counsel’s
prima facie case of unlawful discrimination against Simpson
has, therefore, not been rebutted. Accordingly, I find and con-
clude that, by the March 9, 1994 discharge of Simpson, Re-
spondent violated Section 8(a)(3).

301 Further demonstration of the conjunctive nature of the reasons
advanced for Simpson’s discharge is found in the language that Wal-
lace used on the ASI-22 form, “Intentional negligence, insubordination
and loafing during working hours. Employee made threatening state-
ments towards the Company.” (Emphasis added.)
i. Johann Burton’s discharge for threatening his supervisor
Johann Burton (vol. 28) was employed as a welder’s helper
in the shipfitting department until he was discharged on August
23, 1993. The second complaint, at paragraph 117, alleges that
by discharging Burton Respondent violated Section 8(a)(3).
The General Counsel contends that Respondent discharged
Burton because of his known union activities and expressions
of sympathy which included his wearing prounion insignia and
making statements sympathetic to the Union at employer cam-
paign meetings. Respondent answers that its supervisors had no
knowledge of any prounion sympathies that Burton may have
held at any relevant time and that Burton was discharged solely
because he threatened a supervisor with physical harm. The
General Counsel replies that the defense for the discharge is
pretextual because Burton did not engage in the conduct attrib-
uted to him; alternatively, the General Counsel replies that,
even if he did engage in some degree of the conduct attributed
to him, Burton was treated disparately because other employees
engaged in similar conduct but they received lesser, or no, dis-
cipline. Ultimately, I find and conclude that Respondent dis-
charged Burton in violation of Section 8(a)(3).
Until 4 days before his discharge, Andrew Thomas was Bur-
ton’s foreman. At the time of his discharge, Nickels Pierce was
Burton’s foreman, Lee Goodson was his general foreman, and
Leroy (Trip) Trepagnier was the department’s assistant superin-
tendent. Burton testified that he started wearing a “Union-Yes”
sticker on his hardhat in April (although his pretrial affidavit
states that he did not begin wearing the sticker until May), and
he wore the sticker every day until 1 week after the June 25
Board election. Burton testified that he was one of three em-
ployees on his crew of eight or nine employees who wore
prounion stickers; the remainder wore “Vote-No” stickers.
Burton testified that sometime in May Goodson and Trepag-
nier conducted an employer campaign meeting in Thomas’
office. During the meeting, Trepagnier argued that Respon-
dent’s health insurance plan was relatively inexpensive. Burton
indicated to Trepagnier that he had a question. Burton testified:

And then he called me by name. And then he asked me
what do I think about the insurance policy. And I said, “I
don’t think that the Company insurance is much cheaper; I
think the Union insurance is much cheaper because for
$26.50—Mr. Miller explained to me we could get hospi-
talization, dental care and medication. That sounded like a
better deal to me.”
And then Trip said, “How could you explain that?”
I said, “I don’t know; I can’t knock it until I try it
first.”
And then he started talking about once he had back
surgery and some kind of injury on his body.

Phillip Miller was one of the principal organizers for the Union
before, and after, the Board election.
Burton testified that another employer campaign meeting
was conducted in May, this time in the blacksmith’s (metal
forming and shaping) shop. In attendance for Respondent were
department Superintendent Torres, Trepagnier, Pierce, and
several other foremen. Burton testified that he spoke up at this
meeting; he first referred to Carl Alexander, the shipfitter to
whom Burton was then assigned as helper. Burton testified that
he said:

AVONDALE INDUSTRIES

1255
Carl has been with the Company for 15 years, and Carl
only makes $10 an hour, whereas Joe Green has been with
the Company for three years and is just only making
$9.18. And so then Trip told me Joe had advanced himself.
And I said, “I don’t see how the Company cannot allow
[Carl] to advance himself because it doesn’t make sense.”

Further according to Burton, during that same meeting em-
ployee Scott Miller spoke against the organizational attempt; in
his statement, Scott Miller spoke well of Al Bossier, company
president. Burton testified that he replied to the arguments
made by Miller: “I don’t see how come Scott Miller is speaking
highly of Mr. Bossier because he had been screwing the Com-
pany for a long time.”
When called by Respondent (vol. 126), Trepagnier testified
that in an employer campaign meeting in which insurance was
discussed in his presence, Burton stated to him (and the group)
that Respondent should provide “free” (i.e., noncontributory)
insurance to the employees. On direct examination, Trepagnier
was asked to deny that Burton said anything “that you under-
stood to be an expression of support for the Union.” Trepagnier
did make the conclusionary denial, and he further denied hear-
ing Burton say anything to the effect of “You can’t knock the
Union till you try it.” Neither of these denials, however, was a
credible denial of Burton’s categorical testimony that he spoke
favorably of cheaper union insurance and he cited as his author-
ity Union Representative Phillip Miller. I credit Burton’s testi-
mony about what he said to Trepagnier at the insurance meet-
ing.
I further credit Burton’s testimony about what he said at the
second May employer campaign meeting. Burton placed De-
partment Superintendent Torres, Pierce, and Trepagnier at the
meeting. Torres did not testify. Pierce testified that he attended
no employer campaign meetings in which Burton was present,
and Trepagnier testified that the insurance meeting was the only
employer campaign meeting at which both he and Burton were
present. Neither Pierce nor Trepagnier were asked, however, to
deny being present at any meeting at which Burton stated that
Company President Bossier was “screwing” the Company.
Respondent solicited specific denials of virtually all other such
testimony by the General Counsel’s witnesses. Torres’ nonap-
pearance, and Respondent’s failure to solicit from Trepagnier
and Pierce specific denials of this dramatic testimony by Bur-
ton, lead me to credit Burton’s testimony of what he said to the
group at the second employer campaign meeting in May. Bur-
ton’s comments at the second May employer campaign meeting
were made as he sought to rebut the pro-Bossier, and antiunion,
arguments presented by employee Scott Miller. Torres, whom I
have found to have been present, reported directly to Company
Vice President Emil Foret Sr. Burton’s outspoken (albeit crude)
reference about Bossier, in the context of his speaking for the
Union’s cause, presumably went to the highest level of Re-
spondent’s management.
Burton’s Discharge—the General Counsel’s Evidence
According to Burton, on August 17 he and Alexander were
reassigned from Thomas’ crew to Pierce’s crew. On August 23,
just before the 7 a.m. whistle blew, Pierce told Burton that he
would not be working with Alexander that day; instead, he
would be doing grinding work with shipfitter Frank Narcisse.
Instead of first going to Alexander’s work area to retrieve the
gear that he had left there the day before, and then going to
Narcisse’s area as instructed, Burton went first to Narcisse’s
area, about 150 feet from Alexander’s area. When asked why
he first went to Narcisse’s area, Burton replied, “I go by Frank
and ask Frank what type of work I had to do.” Further accord-
ing to Burton:

And then I went to talk to Frank, and Frank told me to
go grind on the burr on the rudder. And then I go back by
Carl so I can get my hardhat, my glasses and my shears.
And then Pierce come over to me [in Alexander’s area]
and tell me [that he] had assigned me to work with Frank.
And then he told me I am goofing off and I should be by
Frank. . . .
I told him to cool down [his] verse because I have
children of my own. And then he told me I am being a
smart ass.
I told him, I am not being a smart ass. And then he told
me that me and him should go talk to [General Foreman]
Leroy Goodson. And then we go walking to the office.
That was when he told Goodson I threatened him with a
knife. And then Goodson said he is going to page Trip
[Assistant Superintendent Trepagnier] and let Trip settle
this.
And then he paged Trip. . . . And Trip got there, and
Pierce told Trip I threatened him with a knife. . . . And
then Trip told me I could be fired for threatening a super-
visor with a knife. And then Trip said, “You are fired.” So
that is what happened.

Burton testified that Pierce said nothing about a knife until he
and Pierce reached Goodson’s office. Burton carries a knife in a
scabbard, like some other employees, but he denied pulling the
knife out during his exchanges with Pierce, and he denied
threatening Pierce at any time that morning. Burton testified
that employee Alexander was present during his exchanges
with Pierce in the work area, but neither side called Alexander
to testify.
Burton’s Discharge—Respondent’s Evidence
Pierce (vol. 98) testified that he made the assignment to Bur-
ton at 6:55 a.m., before starting time. Further according to
Pierce, about 7:20 a.m., as he made rounds of the job, he ap-
proached Narcisse’s working area; he asked Narcisse where
Burton was and Narcisse replied that he had not seen Burton.
Pierce went the 150 feet to Alexander’s area and found Alex-
ander and Burton talking. According to Pierce:

I asked him why he hadn’t moved his stuff to the new
job site I had assigned him to.
He told me, if I didn’t leave him alone, he was going
to fuck me up.
I was startled, stunned for a while, and I asked him
what he meant by that.
And he says, “You heard what I said; I will fuck you
up.”
I asked him to follow me to Lee Goodson’s office.

Pierce did not testify that Burton had threatened him with a
knife. When Pierce and Burton got to Goodson’s office, further
according to Pierce, Pierce told Goodson what Burton had said
to him (which included no mention of a knife). Pierce testified
that Goodson asked Burton if what Pierce had just related was
true; Burton replied that it was. Goodson replied that he would
call Trepagnier, which Goodson did.
Pierce further testified that after Trepagnier arrived in Good-
son’s office:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1256

He [Goodson] told him [Trepagnier] exactly what I
had said, that he [Burton] said he was going to fuck me up.
He [Trepagnier] looked at Johann and asked him, “Is
that true? Did you threaten him? Did you say that?” And
he said, “Yes.”
He [Trepagnier] told him [Burton] that they had given
him a lot of warnings, that he had had trouble with other
foremans before, and that he had given him chances, and
that he reached his limits with him, that he couldn’t toler-
ate any more. . . . He told him he couldn’t use him any-
more, that he had put up with enough of him, that he had
had problems with him with other foremans, that he had
moved him around from one area to the other, and that he
had been lenient to him because he was friends with his
mother. His mother is a clerk—was the office superinten-
dent’s clerk. . . .
And he told him that he should have let him go, a long
time ago, but he was moving him around and trying to
help him out, and that he just couldn’t tolerate him threat-
ening anybody, especially a supervisor.

At that point, Pierce testified, the security department was
called and Burton was escorted from the premises. Finally,
Pierce was asked and he testified:

Q. Why did you bring Mr. Burton to see Leroy
Goodson? Why didn’t you wait to see whether he did any-
thing? . . .
THE WITNESS: Well, because of the look in his face, he
was just a blank stare, and then he looked like he was seri-
ous.
Q. [By Ms. Canny]: How big was Mr. Burton com-
pared to you?
A. Oh, he is a small-bodied person. He is about half
my size. And I didn’t expect him to take a swing at me.
A. What did you expect? . . .
THE WITNESS: Well, I haven’t seen any postal workers
getting killed by a fist fight. So I wasn’t going to stand
around and let him make his move, whatever it was going
to be.

Pierce denied knowing that, before he was discharged, Burton
favored the Union.
On cross-examination Pierce testified that he felt that Burton
had threatened him with physical harm by gun or knife, but he
denied that he told either Goodson or Trepagnier that Burton
had threatened him with a knife. Further on cross-examination,
Pierce repeated that, as Trepagnier discharged Burton, Trepag-
nier reminded Burton that he had given Burton chances before,
and that he had been required to move him from foreman-to-
foreman, and that he had warned Burton before to “straighten
up.”
Goodson (vol. 98) also testified that when Pierce brought
Burton to him, Pierce told Goodson that Burton had said to
Pierce at the worksite, “I’ll fuck you up.” Goodson further testi-
fied that Burton admitted that he had told Pierce, “I’ll fuck you
up.” Goodson testified that then:

I asked him, “What do you mean by that?”
He said, “You know what I mean by that.” That is all
he said.

Goodson testified that he then called Trepagnier. When Tre-
pagnier arrived at Goodson’s office, Goodson testified, he re-
lated to Trepagnier what Pierce had related to him. Trepagnier,
according to Goodson, then asked Burton what he had said to
Pierce; and Goodson testified: “He [Burton] said if he [Pierce]
didn’t get out of his face, he was going to fuck him up.”
Goodson testified that Trepagnier then told Burton that he was
discharged for threatening Pierce. Goodson flatly denied that
Trepagnier, in firing Burton, referred to Burton’s prior work
record. This, of course, was in direct conflict with Pierce’s
testimony to that effect.
Trepagnier (vols. 121, 126) testified consistently with Pierce
and Goodson except that, like Goodson, and contrary to Pierce,
he did not testify that he told Burton that he had given Burton
other chances, had been required to move him from foreman-
to-foreman, and had been indulgent to him because his mother
worked at the plant.
Burton’s Discharge—Credibility Resolutions
and Conclusions
I have credited Burton’s testimony that he wore prounion in-
signia for at least 2 months before the June 25 Board election. I
have further credited Burton’s testimony that during the
preelection period he spoke up at employer campaign meetings
and told his supervisors (including Pierce and Trepagnier who
discharged Burton) that Union Representative Miller had made
valid points about the Union’s health insurance plan, that the
Union should be tried by the employees, that some employees
were being unfairly paid, and that the Union was needed be-
cause Bossier had been treating the employees unfairly “for a
long time.” These activities are proof of Burton’s prounion
sympathies. Animus toward such activities has been proved,
especially animus toward the wearing of prounion insignia. I
find, therefore, that a prima facie case of unlawful discrimina-
tion against Burton has been presented by the General Counsel,
and the burden shifts to Respondent to demonstrate by a pre-
ponderance of the evidence that it would have taken the same
actions against Burton even in the absence of his known pro-
tected activities. Respondent’s defenses must therefore be ex-
amined.
Pierce testified that Trepagnier told Burton that he was being
discharged, in part, because Burton had a history of not work-
ing. This testimony was not true; if it had been, Goodson and
Trepagnier would have corroborated it. This testimony by
Pierce is an indisputable sign that he was not a truthful witness.
Burton had a knife, and Pierce admitted that he was afraid
that Burton would use a knife (or a gun) against him. Pierce
denied that he knew that Burton had a knife, but Burton was
credible that he carried one in a scabbard, something that would
have been obvious. Neither Goodson nor Trepagnier was asked
if Pierce had reported that Burton threatened him with a knife.
Pierce was not asked about this most critical element when
Respondent had Pierce on direct examination, and Respon-
dent’s lawyers were not ones to neglect critical elements. When
on cross-examination, Pierce denied that he told Goodson and
Trepagnier that Burton had threatened him with a knife, but this
denial was not credible. (Many witnesses will lie when pressed
to do so; I believe Pierce was one such witness.) I find that, as
Burton testified, Pierce told Goodson and Trepagnier that Bur-
ton had threatened him with a knife.
I believe that Burton had been loafing on the morning of Au-
gust 23, as Pierce described. I further believe that Burton be-
came angry when he was confronted by Pierce, and he told
Pierce to back off or, “I’ll fuck you up.” Burton did not, how-
AVONDALE INDUSTRIES

1257
ever, threaten Pierce with a knife. Pierce, however, seized upon
the “I’ll fuck you up” remark to tell Goodson and Trepagnier
that Burton had threatened him with a knife, as Burton testified.
That is, I find, Pierce told Goodson and Trepagnier that: (1)
Burton told him “I’ll fuck you up,” and Pierce also told
Goodson and Trepagnier, and (2) Burton had threatened him
with a knife. Pierce’s first statement to Goodson and Trepag-
nier was true; the second was consciously false. At best, Tre-
pagnier then discharged Burton because Pierce had falsely re-
ported to him that Burton had threatened him with a knife. At
worst, Trepagnier knew that the report was false, but used the
report as a pretext for discharging Burton. Which was the case,
I need not decide. Also, I need not speculate whether, at the
time, Trepagnier would have thought that he had enough of a
“story” to advance as a pretext if Pierce had only told him the
truth.
Burton had spoken up for the Union during employer cam-
paign meetings in the presence of Pierce and his other supervi-
sors, and he had worn prounion insignia, something against
which, as I have found infra, Respondent’s supervisors threat-
ened its employees many times. I find that Pierce made his
false report to Goodson and Trepagnier to supply a pretext for
the discharge of the prounion employee Burton. Knowing or
unknowingly, Trepagnier acted on that false report and used it
as a putative basis for the discharge.
I therefore find that Respondent has not shown that it would
have discharged Burton even absent his protected activities, and
I conclude that, by discharging Burton on August 23, 1993,
Respondent violated Section 8(a)(3).302
j. Lennie Valentine
As discussed above in the case of alleged discriminatee
Dwight Ballard, sheet metal department employee Lennie Val-
entine was discharged by Respondent in April 1993. (Again,
that discharge is not a subject of the complaints that are now
before the Board.) After the 1993 discharge, as I found in Bal-
lard’s case, Foreman Jesse Caston told current employee Eric
Evans and alleged discriminatee Keith Collins that Valentine
had been discharged because of his prounion activities. Also as
I have previously found, Foreman Joe DeNicola told his crew
(including current employee Junius Duplantis) that Valentine
and Ballard had no chance at reinstatement from their 1993
discharges because of their prounion sympathies. Valentine and
Ballard were nevertheless reinstated on January 31, 1994, but
both were suspended 2 days’ later; those suspensions violated
Section 8(a)(3), as I have further concluded in Ballard’s case.
Respondent’s treatment of Valentine after he was reinstated
are the subjects of three additional 8(a)(3) allegations of the
complaints: (1) the second complaint, at paragraph 145, alleges
that on April 12, 1994,303 Valentine was issued a warning no-
tice; (2) the fourth complaint, at paragraph 39, alleges that on
July 14 Valentine was issued a second warning notice; and (3)

302 On brief, page “Shipfitting-20,” Respondent states that I pre-
vented it from calling witnesses and I prevented all examinations about
productions pursuant to a subpoena duces tecum for a union agent’s
notes that might affect credibility resolutions in Burton’s case. This is
not true. What I prevented, on day-138, was examination of one witness
about the thoroughness of a search and a production that had been made
more than a year before the requested examination. I felt that laches
applied.
303 All dates mentioned in Valentine’s case are in 1994, unless oth-
erwise indicated.
the fourth complaint, at paragraph 42, alleges that on August 20
Valentine was again discharged. The General Counsel contends
that Respondent took these actions against Valentine because of
his known union activities and expressions of sympathy which
included his wearing of union insignia after his reinstatement
and a lingering hostility toward Valentine because of Respon-
dent’s being required to reinstate him as a result of the 1993
unfair labor practice charges that were filed on his behalf. Re-
spondent answers that: (1) the April 12 warning notice was
issued solely because Valentine had obtained three pass-outs304
within 30 days; (2) the July 14 warning notice was issued be-
cause Valentine wore a beard in violation of its safety rules;
and (3) Valentine was not discharged for a second time. The
General Counsel replies that: (1) Respondent caused Valentine
to take one of the pass-outs that was counted against him, and
warning notices for three pass-outs, alone, had not theretofore
been issued; (2) Valentine was treated disparately because other
men who reported to work with beards were allowed time off to
shave rather than being issued warning notices; and (3) Valen-
tine was, in fact, discharged. Ultimately, I find and conclude
that (1) the pass-out warning notice to Valentine was just one of
six that were concurrently issued to employees, and there is no
evidence that any of the warning notices were issued because of
Valentine’s protected activities or the protected activities of any
other employees; (2) Valentine’s supervisor admitted that he
could have sent Valentine to shave, rather than issue him a
warning notice, and Respondent has not shown why Valentine
was not afforded that alternative, and, therefore, the issuance of
this warning notice violated Section 8(a)(3); and (3) Valentine
was not discharged for a second time.
Valentine (vols. 19, 20) testified that when he reported to
work on January 31, and most days thereafter, he wore a union
T-shirt. During his 1994 employment he wore “about nine”
“Union-Yes” stickers on his hardhat. Valentine further testified
that he regularly wore a union button on his coveralls. When he
dropped the top of his coveralls for heat-dissipation, he usually
displayed a union T-shirt that he wore underneath. Valentine
testified that when he reported to Kitzman on February 1, wear-
ing the union T-shirt, Kitzman told him, “. . . that he had no
problem with me about what I was fired for and whatever the
Union is telling me, you know, he would appreciate it—I am
just there to do his work.” Further, Valentine testified that
Kitzman, once “asked me about why I had all those stickers on
my hat.” Valentine replied that it was because he was “a union
man.” I found this testimony by Valentine to have been credi-
ble.
(1) Valentine’s warning notice for taking excessive pass-outs
April 3 was Easter; April 1 was Good Friday, a paid holiday
according to the Avondale Employees’ Guide. On Thursday,
March 31 (called “Holy Thursday” by several of the witnesses),
according to Valentine (vol. 19):

[Employee Ronald] Matherne and myself were working on
the job and Al Kitzman, the foreman, came to us and said, “If
you all would go home early today, I will be able to go home
too, also; so why don’t you all get a pass-out today and we all
can go home together.”

Valentine took the pass-out and went home. Valentine further
testified that during the morning of April 12 Kitzman presented

304 “Pass-outs” are grants of permission to leave a shift early; I use
the term that the lawyers and witnesses used, rather than “passes-out.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1258
him with a warning notice that was signed by Kitzman and
General Foreman Schloegel. The box for “Other” general of-
fense is checked. In the space for the date of the offense, the
warning notice lists March 2, 11, and 31. The reason for warn-
ing is stated as: “Excessive PASS-OUTS within a 30-day pe-
riod. Employee left work early on the above-listed three days.”
Valentine told Kitzman that he did not know that receiving
pass-outs could result in a warning; Kitzman replied that there
was such a rule, even though it is not stated in the Avondale
Employees’ Guide (or written anywhere else). Valentine further
testified that he asked Kitzman who had ordered him to issue
the warning notice, but Kitzman refused to tell him. Valentine
asked to see Schloegel. Later in the day, Schloegel and Kitz-
man met with Valentine. According to Valentine, he also told
Schloegel that he did not know that there was a rule against
receiving excessive pass-outs; Schloegel admitted that there
was no such written rule but, “a foreman can write you up for
any reason or any cause that he wants to.” Valentine com-
plained that Kitzman had said someone else had told him to
issue the warning notice, and Kitzman then said, “Well, Lennie,
the reason why I give the warning was because I was having a
lot of pass-outs before you came back and I am trying to break
it down.” Valentine further testified that he then argued that
other employees had received more pass-outs than he without
penalty, and Kitzman then replied that he had issued the warn-
ing notices of April 12, “[b]ecause like Arthur said, it is up to
my discretion to give them when I want to give them.”
Valentine further testified that on April 13, when he and
Kitzman were alone, Kitzman said, “I want to apologize for the
date of the 31st, Holy Thursday, on your write-up because I
know that I asked you to go home that day, but if you would go
down to the Union people and tell them that I am going to deny
it to the fullest.” The warning notice remained in Valentine’s
personnel file.
Steven Marque (vol. 47), a current sheet metal department
employee, testified that on the morning of Holy Thursday 1994,
Kitzman approached him and employee Charles Kennedy as
they were working and:

Al came on the boat to tell us that everybody on the
crew was leaving at 12:00. He said—he asked us if we
wanted to leave early, and if we did, he could leave early,
too. And I told him I was going to stay all day. I said, “If
Charles stays, I am going to stay; if Charles goes home, I
will leave.”
Charles said he wanted to work the whole day; he
needed the money. I said, “Well, I am going to stay and
work with Charles.”
And Al said, “Okay.” And he walked off, and that was
it.

All of the other members of Kitzman’s crew, including Valen-
tine, left work at noon. Marque testified that about 2 weeks’
later, Kitzman conducted a safety meeting and:

I told him that it wasn’t fair that he wrote up all the
guys that got a pass-out within the 30-day period using the
same date, the Thursday before Good Friday, to write
them up and use that date as one of the three days that they
got a pass-out, when he was advocating for everyone to
leave early that day. . . .
He [Kitzman] apologized to everybody that got wrote
up for using that Thursday before Good Friday, and [if]
that is the day that . . . caused them to get written up, he
was sorry, [and] he apologized, but [Kitzman further said
that] there was nothing he could do about it because the
write-ups already went in the office.

Marque testified that before this incident he had never been told
that there was a rule regarding excessive pass-outs, and em-
ployees often took more than three in a month without penalty.
Lennie Gueho and Michael James Boudreaux are two current
employees of the sheet metal department, but they work in the
inside sheet metal shop under General Foreman Michael Tor-
res, not outside General Foreman Schloegel. Fifteen-year em-
ployee Gueho (vol. 42) testified that to get his paycheck cashed
the same day that he receives it, “I usually get a pass-out 99
percent of the time on a Friday.” Gueho has never received a
warning notice for this custom. Nine-year employee Boudreaux
(vol. 46) testified that almost every Friday afternoon, at 2:30
p.m., Gueho and Mike Michell, Dan Brackovich and Randy
Tate, other sheet metal shop employees, walk by his work sta-
tion on their ways out the door. All four employees are still
employed by Respondent.
Valentine’s Warning for Excessive Pass-Outs—Respondent’s
Evidence
Sheet Metal Department Superintendent Allen Poleto testi-
fied (vol. 105) that he has established no rules concerning pass-
outs and his office keeps no records of pass-outs; those matters,
Poleto testified, are left to his general foremen, Schloegel (out-
side) and Torres (inside). Schloegel (vol. 109) testified that
since 1992 his office has maintained monthly records of who
receives three pass-outs within 30-day periods. Schloegel’s
secretary distributes these records to his foremen as they are
compiled. Schloegel testified:

I told them [his foremen] it [whether to issue a warn-
ing notice] is up to them. And when it gets to be a disease
in their area. In other words, if people are missing time,
taking pass-outs, they [the foremen under him] are not
meeting their schedules. If they find they are having prob-
lems, well then, they will issue a warning.

Further on direct examination, Schloegel testified that he ap-
proved the warning notice to Valentine because he thought that
Valentine had been given repeated oral warnings against taking
excessive pass-outs. Schloegel, however, did not deny Valen-
tine’s testimony about the exchange that they had after Valen-
tine received the warning notice for excessive pass-outs (which
testimony included Valentine’s statements that he was unaware
of any such rule).
Kitzman (vol. 107) testified that on March 31 he went to
each member of his crew and, “I told all of the employees out
there that if they wanted to take a pass-out, that they could and
it would not be held against them.” Kitzman denied, however,
that he asked any employee to take a pass-out so that he [Kitz-
man] could go home also. Kitzman further testified on direct
examination that he had been given the discretion to issue
warning notices for excessive pass-outs when an employee’s
pass-out record created “problems.” Kitzman was asked and he
testified:

Q. Now, what, from your supervisor perspective,
would alert you to problems with respect to pass-outs for
your crew?
A. A couple different things: One, if an employee
showed a pattern consistently every month, taking three or
four pass-outs, obviously that is a problem.
AVONDALE INDUSTRIES

1259
Or two, if it bleeds over to the other workers, the other
workers seeing this guy is taking a pass-out every week
and not getting in trouble, so they start to take pass-outs,
and before you know it, three-quarters of the crew is tak-
ing pass-outs and production is dropping. . . .
Q. Now, if you do see a particular problem with re-
spect to pass-outs in your department where a large num-
ber of employees are taking pass-outs in a given month,
what do you do?
A. I look at the pass-out list. Everyone that has got
three or more for that particular month, I issue a citation
to.

Kitzman acknowledged, however, that never before April 12
had he issued a warning notice to any employee for excessive
pass-outs. Further on direct examination, Kitzman testified that
in early April:

I received the monthly pass-out update [for March],
and when I received this pass-out list, there was an ex-
traordinary amount of pass-outs on there. I mean, I had
five or six guys with three or more pass-outs. I mean, it
was ridiculous. I had at least 20 pass-outs for the month of
March, I believe it was.
And I called my clerk and told her to issue a citation
for everyone that had three or more pass-outs in that
month.

Kitzman identified five other warning notices that he caused to
be issued on April 12. Two other employees in addition to Val-
entine received warning notices for having taken three pass-
outs, Eugene Edward (for pass-outs on March 18, 25, and 31)
and Merlin Williams (for pass-outs on March 8, 18, and 31).
Three other employees received warning notices for having
taken four pass-outs during the 30-day period: Jacob Canova
(March 4, 11, 24, and 31), Ronald Matherne (March 8, 18, 23,
and 31), and Robert St. Pe (March 4, 24, 25, and 31).
Kitzman agreed that, when he protested the warning notice,
Valentine pointed out that the Avondale Employees’ Guide
contains no rule about excessive pass-outs. Kitzman denied that
anyone had told him to issue the warning notices, and he denied
telling Valentine that someone had told him to issue them.
Kitzman testified that he was present when Valentine spoke to
Schloegel about the warning notice, and he then told Valentine
again that no one else had ordered the issuance of the warning
notice. Kitzman testified that after the warning notices were
issued, he realized that he had included March 31 on the warn-
ing notices. When he did realize it, according to Kitzman, he
held a safety meeting and:

After the safety meeting, I gave a general apology to
everyone on my crew who received a citation for the
month of March.
I told them anyone that received a citation for the
month of March with the date 3/31 on it, it was a mistake.
I mean, I had completely forgotten about the day and that
when I had got the pass-out list, that the 3/31 date never
struck me. I didn’t understand what was going on.
I apologized to them, and I told them, “If you had a ci-
tation for three pass-outs in the month of March, it would
not be held against you by me, but if there was four or
more pass-outs, the citation was still valid.”

Kitzman denied having any discussion individually with Valen-
tine about the matter. Kitzman further denied telling Valentine,
or anyone else, that he would deny any of his comments if he
(or they) went to the Union. Kitzman admitted knowledge of
Valentine’s prounion sympathies, but he denied that any other
of the five employees who received warning notices wore prun-
ion insignia, and he denied knowing if they had any prounion
sympathies.
On cross-examination, Kitzman denied that he had ever re-
ceived instructions from Poleto or Schloegel concerning pass-
outs. Kitzman testified that he could not remember ever having
issued a warning notice for excessive pass-outs. Kitzman was
asked and he testified:

Q. Do you have a personal policy concerning pass-
outs?
A. Yes.
Q. Could you tell us what that is?
A. If I—after I receive this pass-out list on a monthly
basis for the month prior, if I deem it to have a problem on
the previous month, I will issue citations. And when I say
a problem, I am talking about if I have one individual with
five or six pass-outs—four or five or six pass-outs, or I
have a whole crew taking pass-outs.
If I have 23 of them for the prior month, evidently I
have a problem, and I will issue citations.

. . . .

Q. Is your pass-out policy ever written down anyplace?
A. No.
Q. Did you ever tell your pass-out policy to any em-
ployees?
A. It is not a policy. I mean, it is something that I do.

When asked if he told his employees what he did, even if it is
not a policy, Kitzman testified that he did. When asked how he
communicated what he did to the employees, Kitzman testified:

I tell him as—whenever I have a problem with the
pass-out list. If I get a list and I have an employee or I
have four or five employees that have two pass-outs—I
will go to that employee and say, “Look, you know, you
have got two pass-outs for this month. Let’s not keep do-
ing it, you know.” Evidently we are going to have a prob-
lem with it.
I haven’t grabbed the group together as a whole and
told them, no, but [I do so, or I did so] on an individual ba-
sis when I seemed to have a problem.

Kitzman was then asked and he testified:

Q. And so prior to April 1994, the most you would do
is just give a verbal warning?
A. Yes.
Q. Lennie Valentine didn’t have a pass-out problem in
February of 1994, did he?
A. No.
Q. And the only reason, as I understand it, you gave
Lennie Valentine a citation in April of ‘94 was because he
had three pass-outs within the calendar month of March?
A. No, that is not the only reason. I had a problem in
the month of March. I had an extraordinary amount of
pass-outs for my whole crew. When I saw this list, I called
my clerk and told my clerk to issue a citation for everyone
in the month of March that had three or more pass-outs.

Kitzman did not testify that he ever gave Valentine an oral
warning to the effect that he was accumulating too many pass-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1260
outs during March. Kitzman acknowledged that he had not had
the warning notices of Edward, Williams and Valentine with-
drawn, or even asked Schloegel if they could be withdrawn.
Kitzman was asked and he testified:

Q. Is there a reason that you didn’t do that?
A. It was a mistake on my part, and I just never told
Mr. Schloegel about it. I should have done it, but I never
did.

Further on cross-examination, Kitzman testified that, although
he had approved all pass-outs for his crew during March, and
he had coded each pass-out on each day’s MCR, he had not
noticed, during March, that the members of his crew had taken
an unusually large number of pass-outs as the month went
along. Kitzman further acknowledged that, during March, he
had not noticed any drop in production by his crew.
Respondent introduced other warning notices on the topic to
prove that there was such a rule at the time that Valentine and
the five other employees received the April 12 warning notices.
Schloegel identified two warning notices for excessive pass-
outs that were issued by his foremen in 1992. One, dated April
26, 1992, was issued by Nathan Dubios to employee Kay
Holliday for having five pass-outs within 30 days. The other
warning notice identified by Schloegel is dated May 1, 1992; it
was issued by Joe DeNicola to employee Elijah Epps for hav-
ing four pass-outs within 30 days. “Other” general offense is
checked for those warning notices, as was Valentine’s.
DeNicola (vol. 119) identified two 1992 warning notices that
he issued to two employees, Clarence Swington and Henry
Area. Like Epps’ warning notice, each was for having taken
four pass-outs within 30 days. When asked on cross-
examination if he would issue a warning notice for only three
pass-outs within 30 days, DeNicola responded, “I wouldn’t
give a warning, not me.” Respondent also introduced five other
1992 warning notices that had been issued to employees305 by
DeNicola; each includes references to from three to five pass-
outs within 30-day periods, but they also include references to
other attendance problems that the employees were simultane-
ously having (such as absences and tardiness).
Valentine’s Warning for Excessive Passouts—Credibility Reso-
lutions and Conclusions
In view of all of the animus expressed toward such prounion
employees as Valentine, and in view of all of the animus ex-
pressed toward Valentine because of his union activities, it
must be concluded that a prima facie case of unlawful discrimi-
nation against Valentine has been presented for all of the disci-
pline that was imposed on Valentine,306 and Respondent’s de-
fenses must be examined.
Valentine and Kitzman conflict on, among other things,
whether Kitzman told Valentine, on April 12, when Kitzman
presented the warning notice to Valentine, “I want to let you
know this is not me that is doing this here; I am told to give you
this written warning,” or words to that effect, as Valentine testi-
fied. The question that immediately arises is: Why would Val-
entine falsely create this testimony? Valentine could not have
anticipated that Respondent would contend, as it does, that the

305 These were employees Robert St. Pe, Douglas Menier, Michael
Keaton, Richard Combel, and Shane Forrester.
306 As I ultimately find infra, Valentine was not discharged a second
time; therefore, there is no prima facie case of that allegedly unlawful
discipline.
degree of discretion that it invests in first-level supervisors
prevents Board analysis of its conduct under any theory of dis-
parate treatment. Moreover, Schloegel did not deny that on
April 12 Valentine approached him and told him that Kitzman
had said that the warning notice “came from somewhere else,”
as Valentine also testified. Finally, although Kitzman admitted
that issuing the warning notices, at least to Valentine, Edwards,
and Williams, was a “mistake,” he did nothing to have the mis-
take corrected; this fact further compels the conclusion that
Kitzman issued the warning notices because he had been told to
do so by a superior. I credit Valentine’s testimony about his
April 12 exchanges with Kitzman and Schloegel. I further find,
based on that testimony, that Kitzman was, in fact, ordered to
issue the April 12 warning notices; Kitzman would not have
told Valentine that he had been ordered to issue the warning
notices if it were not true. The order undoubtedly came from
Schloegel or Poleto, but I need not speculate which. (Schloegel
was evasive when asked if he had instructed Kitzman to issue
the warning notices, and this factor would further leads me to
believe that either Schloegel originated the order or he commu-
nicated the order from Poleto.)
I further credit Valentine’s testimony that on April 13 Kitz-
man apologized for including March 31 on his warning notice,
and that Kitzman further then said he would deny the apology if
Valentine complained about the matter to the Union. Again,
Kitzman was being forced to issue the warning notices, and this
testimony by Valentine was perfectly consistent with that fact. I
further credit current employee Marque’s testimony that Kitz-
man solicited him and Kennedy to take a pass-out on March 31.
I further credit Marque’s testimony that it was 2 weeks later
that Kitzman apologized to the group for having included
March 31 in the warning notices, and that Kitzman did so only
after Marque challenged him on the point. Kitzman was en-
tirely vague and evasive about when, and how, it was that he
realized that he had included March 31 on the warning notices;
I believe Kitzman had hoped that no one would challenge him
on the point, and he waited until that challenge came to apolo-
gize.
(Even assuming that the April 12 warning notices were all
Kitzman’s idea, the remainder of his testimony about why he
issued the warning notices does not withstand scrutiny.
Schloegel testified that he provides his foremen, such as Kitz-
man, with information about the number of pass-outs that their
employees take in a month; he leaves it to the foremen to issue
warning notices over the pass-outs taken, if those pass-outs
affect production. Kitzman, however, admitted that he had not
noticed any drop in production during the month of March.)
Kitzman testified on direct examination that he issued warn-
ing notices either (1) “if an employee showed a pattern consis-
tently every month, taking three or four pass-outs,” or (2) “if it
bleeds over to the other workers, the other workers seeing this
guy is taking a pass-out every week and not getting in trouble,
so they start to take pass-outs, and before you know it, three-
quarters of the crew is taking pass-outs and production is drop-
ping,” or (3) “if I have one individual with five or six pass-
outs—four or five or six pass-outs, or I have a whole crew tak-
ing pass-outs,” or (4) “[i]f I have 23 of them for the prior
month, evidently I have a problem, and I will issue citations.”
Valentine, however, (1) had not been on Kitzman’s crew in
February, so he had not taken any passes “every month”; (2) his
conduct could not have “bled” over into other workers and
caused a lack of production because there was no lack of pro-
AVONDALE INDUSTRIES

1261
duction during the month according to Kitzman’s observation,
and Valentine was not taking a pass-out “every week”; (3) Val-
entine he did not take four (or five or six) pass-outs in the
month of March, and even his third was taken upon the solicita-
tion by Kitzman; and (4) although Valentine was on a crew that
took more than 23 pass-outs in March, according to the record
for that month,307 the group only took 20 pass-outs if one ex-
cludes the pass-outs of March 31, as Kitzman admitted should
have been done.
Schloegel testified that he had signed the warning notices
because of the “[v]erbal warnings” that the six employees had
received, and Kitzman testified that, before he gave warning
notices, he gave oral warnings. Valentine, it is undisputed, got
no oral warning that his taking pass-outs, that month or any
other, could result in a warning notice.
Respondent introduced other pre-April 12 warning notices to
employees for excessive pass-outs; not one of them had been
issued on the basis of only three pass-outs within 30 days. All
of the prior warning notices for excessive pass-outs were for
four or more pass-outs, or they were for three pass-outs com-
bined with other attendance problems such as absences or tar-
diness. At one point, Kitzman, himself, admitted that he issued
warning notices only to employees who had “four or five or
six” pass-outs in a month. (Even then, according to his testi-
mony Kitzman would orally counsel and warn an employee
before the number got that high.)
In summary, Schloegel’s and Kitzman’s issuances of the six
warning notices of April 12 were unfounded on a number of
accounts. To some, therefore, Respondent’s actions of April 12
may seem unreasonable, arbitrary or “unfair.” Respondent,
however, is not on trial for acting unreasonably, arbitrarily or
“unfairly” in the abstract. It is on trial only for committing un-
fair labor practices under the Act; for matters of discipline,
unfair labor practices under the Act are proved only where it is
shown that an employer discriminated against employees be-
cause of the protected activities of some or all of them. None of
the other five employees who were concurrently issued warning
notices were shown to have been prounion, and, on brief, the
General Counsel points to no proof that would indicate that
Schloegel and Kitzman issued the warning notices to all six
sheet metal department employees because of the protected
activities of Valentine. There is no such proof. At best, the
General Counsel is requesting an inference that the group was
discriminated against because Valentine was in it. It is, how-
ever, at least equally inferable that Schloegel and Kitzman
acted “unfairly” toward a group of employees, one of whom
turned out to be Valentine. I shall therefore recommend dis-
missal of these allegations of the complaint.308
(2) Valentine’s warning notice for having a beard
Respondent has a written safety policy that employees who
may be required to wear a respirator while working must be
clean-shaven. Exceptions within the policy (the “no-beard pol-
icy”) are made for employees with skin conditions that preclude
close shaving. If an employee has a statement from a derma-

307 See the GC Exh. 750(87).
308 The second complaint, at par. 144, further makes the general alle-
gation that Respondent violated Sec. 8(a)(3) by more stringently en-
forcing its rule concerning pass-outs. Again, as there is no evidence that
any of the warning notices were issued because of the protected activi-
ties of any of the employees, I also recommend dismissal of that allega-
tion.
tologist that his skin condition precludes close shaving, and the
employee presents the statement to the medical department for
review, the medical department will issue to the employee a
permit that will allow him to wear a beard of up to one-quarter
inch in length. The medical department also issues to any such
employee a sticker for the back of his hardhat. The stickers are
fluorescent pink, 2-inch, triangles; and each sticker has a large
black “1/4” printed in its center. It is undisputed that Valen-
tine’s job sometimes required use of a respirator and that he
was subject to the no-beard policy.
Valentine (vols. 53, 54) testified that, as he was working
with hot glue on June 23, he burned his face on the right side
and on the front of his chin. Valentine reported the burn to
Kitzman who sent him to the medical department where he was
treated and released. A week later, Valentine tried shaving, but
the action pulled the scabs off. Thereafter, he began shaving his
face only where there were no scabs.
As amended at the hearing, the fourth complaint, at para-
graph 6, alleges that one Phil Casper is a supervisor within
Section 2(11) of the Act or an agent of Respondent within Sec-
tion 2(13). Respondent denies that Casper is either. Casper did
not testify. Peter Territo (vol. 78), Respondent’s safety director,
testified that in 1994 Casper worked as a nonsupervisory safety
inspector. On brief, the General Counsel points to no evidence
that conflicts with Territo’s testimony. I find and conclude that
in 1994 Casper was not a supervisor or agent within the mean-
ing of the Act.
On July 14 Valentine worked a shift from 4 a.m. until 12:30
p.m.309 About 7:30 a.m. Valentine, alleged discriminatee Ken-
neth Patterson, and employee Bruce Litell were walking in a
road in the yard. Casper, who was driving by in a company
truck, stopped, got out, and spoke to Valentine. Valentine testi-
fied that, at the time, he was wearing a union T-shirt and “about
20” union stickers on his hardhat; neither Patterson nor Litell
was wearing any prounion insignia. Patterson, further according
to Valentine, had a full beard that was “[a] quarter of an inch or
longer.” Patterson did not have a “1/4” sticker on his hardhat.310
Valentine testified that, when Casper approached the three em-
ployees, Casper asked Valentine if he had a sticker to wear a
beard. Valentine replied to Casper that he did not know that he
needed a sticker to wear a beard. Casper replied that all em-
ployees are told about the beard rules during orientation; Valen-
tine responded that, when he was reinstated in February, he did
not go through orientation. Casper wrote down Valentine’s
badge number and left.311 Further according to Valentine, Cas-
per had said nothing to Patterson. Valentine denied that he
knew that Respondent had a policy that required permits, and
displays of stickers, before beards (of up to one-quarter inch in
length) could be worn. On cross-examination, Valentine ac-
knowledged that “half” of his face had not been shaved for
approximately 2 weeks at the time that he was confronted by
Casper.

309 In his direct examination, Valentine confused the dates of the
events in question and testified that they occurred on July 13 and 14. I
have drafted the narrative to reflect the correct dates of July 14 and 15.
310 Valentine testified that his own beard was not a quarter-inch long
at its longest point, but this does not matter because it is undisputed that
the no-beard policy does not permit any beard if the employee has no
permit from the medical department.
311 Valentine and Patterson testified that Valentine tried to explain
about his burn, but both were impeached on that point by their pretrial
affidavits or cross-examinations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1262
Patterson (vol. 54) testified that he had received a permit to
wear a quarter-inch beard, and he did have a full beard, one-
quarter inch long, on July 14. Patterson testified that his beard
was “fuller and longer” than Valentine’s beard. Although he
had previously been issued a beard-sticker for his hardhat, on
July 14 he was not wearing his own hardhat; he had left his
hardhat at home and had borrowed another. There was no “1/4”
sticker on the borrowed hardhat. Patterson agreed with Valen-
tine that Casper did not ask him if he had a beard permit.312 On
cross-examination, Patterson acknowledged that there were
parts of Valentine’s beard-growth that could have been shaved
because there were no burns (or burn-marks) there. Litell did
not testify.
On July 15, according to Valentine, Kitzman presented him
with a warning notice. The warning notice was signed by Kitz-
man and Schloegel. The box for general offense-12 is checked;
the date and time of offense space is completed: “Thursday—
7/14/94.” The reason for warning space is completed: “Viola-
tion of Company safety and health rules and regulations. Em-
ployee was in violation of Avondale’s beard policy. See at-
tached beard policy.” (No attachment to the warning notice was
offered in evidence; however, a copy of the no-beard policy
was introduced at another point during the trial.) Valentine
testified that when Kitzman presented him with the warning
notice:

And [Kitzman] said, “I have a citation for you to sign,
but I want to let you know that I had nothing to do with
this.” And I took the citation.
And I started reading the citation, and I said, “From
my understanding, I heard that for your first offense, you
get sent home, if you have too much hair on your face, or
you get sent to the first-aid, to shave.”
And he said once again, “I had nothing to do with
this.”

The General Counsel contends that, in fact, employees were
permitted to go home, or go to the medical department, to shave
when found in violation of the no-beard policy, rather than
given a warning notice, at least on the first offense.
Valentine’s Warning Notice for Having a Beard—
Respondent’s Evidence
On direct examination, Kitzman (vol. 107) testified that on
July 14 General Foreman Schloegel handed him a copy of a
memorandum from Martin Summers, the assistant manager of
the safety department. The memorandum is partially boiler-
plate. Filled-in is Valentine’s badge number and a statement
that the employee had been found in violation of the no-beard
policy. Boilerplate under these entries state: “Please send the
Safety Department a copy of the citation within one week of
receipt of this notice.” Phil Casper’s name is then entered as a
person to contact for further information. Kitzman testified that,
after receiving Summer’s memorandum from Schloegel, he
went to Valentine and saw that Valentine had “[m]aybe a day’s
growth, maybe two at the most.” Then, according to Kitzman,
he drafted the above-quoted warning notice and gave it to Val-
entine. Kitzman testified that he gave the warning notice to
Valentine on July 14 and, as he did so, Valentine responded, “I
knew it was coming. I saw the safety man earlier.” Kitzman

312 Actually, neither Patterson nor Valentine knew Casper’s last
name, but subsequently discussed documents show that it was Casper,
and I have drafted the narrative accordingly.
denied that Valentine told him that he thought employees were
given an opportunity to go to the medical department and
shave, or go home to shave, before being issued a warning no-
tice. (Therefore, Kitzman and Valentine conflict not only on
what was said when the warning notice was issued, they con-
flict about what day it was issued. Kitzman left blank the space
on the warning notice for “Date and Time of Issuance of No-
tice.”) Kitzman was not asked anything on direct examination
(or cross-examination) about Valentine’s burn or his previously
having shaved around it.
On cross-examination Kitzman (vol. 115) testified that his
understanding was that an employee who failed to shave for 24
hours was in violation of the safety rules and subject to a warn-
ing notice. Kitzman acknowledged that, when Schloegel gave
him Summers’ memorandum, Schloegel did not tell him that he
was required to issue Valentine a warning notice. Finally, on
cross-examination, Kitzman was asked if he “simply could
have told Mr. Valentine to go home and shave and had him
leave work early,” and Kitzman testified that he could have.
On redirect examination Kitzman again testified that he
could have sent Valentine home to shave, “rather than issue a
citation,” but he further testified that he did not do so because
he “went out” and saw that Valentine was, in fact, in violation
of the no-beard policy. Kitzman further testified that he thought
that he would be subject to discipline, himself, if he did not
issue the warning notice to Valentine because the memorandum
from Summers indicated (in the boilerplate quoted above) that
the safety department expected to see a warning notice within
the week. Supervisors can, in fact, be issued warning notices
for failures to enforce Respondent’s safety policies. The fre-
quency with which this happens, however, was not litigated.
Respondent’s safety department director, Territo, testified on
direct examination that warning notices are “generally” issued
when the safety department inspectors do generate such memo-
randa. Territo was then asked and he testified:

Q. [By Ms. Canny]: When a notice such as this goes
from your department to a [production department] super-
visor, does the supervisor have any discretion as to
whether or not to issue a citation?
A. Yes.
Q. What can the supervisor do?
A. He usually meets with Marty [Summers] or—to
find out if this if valid. There may be some certain situa-
tions where he could not have issued a warning notice. . .
. [G]enerally, they do issue the warning notices from this
[type of] memo.

. . . .

Q. And is the superintendent required to issue a cita-
tion to the [badge] number [specified on the form]?
A. Generally.

Territo was further asked and he testified:

Q. [By Ms. Canny]: For employees in 1993 or ‘94 who
did not have a pink, 1/4-inch sticker, but who did have fa-
cial air, what action, if any, could the Company take to-
wards them?
A. They sent them home to shave. They made them
punch out and go shave, and then they could come back,
or they gave them warning notices. . . .

Respondent’s counsel later returned to the topic and asked:

AVONDALE INDUSTRIES

1263
Q. And what are the rules with respect to [being] sent
home or [being] written up?
A. If they didn’t have that—if they didn’t have a doc-
tor’s note, that sticker on their hat, if they had a beard,
then they got disciplined for that, yes.
Q. And who determined . . . what that discipline would
be?
A. The supervisor.

On cross-examination, Territo acknowledged that, despite the
above-quoted reference to “the citation” on the form that Sum-
mers sent to Poleto, there are circumstances in which warning
notices are not issued by the supervisors.
Valentine’s Warning Notice for Having a
Beard—Conclusions
Territo testified, without objection, that a 1992 statement of
the no-beard policy was issued to all employees. I do not be-
lieve Valentine’s testimony that, before July 14, he did not
know of the no-beard policy (whether he was re-told of the
policy when he was reinstated in February, or not). Aside from
simply being incredible on the point, I note that if Valentine
had not been aware of the policy before he was confronted by
Casper, Valentine assuredly would have told Kitzman when
Kitzman presented the warning notice to him, just as he had
denied the existence of the pass-out rule. According to his own
testimony, Valentine did no such thing. (Also I note that Patter-
son did not corroborate Valentine’s testimony that Valentine
told Casper that he did not know that he needed a beard per-
mit.)
There is no dispute that Patterson was with Valentine when
safety department employee Casper stopped Valentine on July
14; it is further not disputed that Patterson was then wearing a
beard but not wearing a hardhat with a “1/4” sticker on it, and
Casper said nothing to Patterson. If the General Counsel had
proved that Casper was a supervisor, these facts would be sig-
nificant; however, the General Counsel did not prove that Cas-
per was a statutory supervisor; therefore, even if Casper singled
out Valentine because Valentine was wearing so many proun-
ion insignia, that fact, alone, is irrelevant.313 The issues that
therefore remain are whether (1) before July 14 Valentine had
been excused from the operation of the policy by his depart-
mental supervisors, or, (2) if not, was Valentine treated dispar-
ately by the punishment of the warning notice.
I find that, as he testified, Valentine had, for at least 2 weeks
before July 14, only shaved around his burn; by July 14, Valen-
tine had a patchy, but substantial, beard. The beard was sub-
stantial enough for Casper to stop his vehicle and confront Val-
entine,314 and it was more than 1 or 2 days’ growth as Kitzman
testified. I further discredit Kitzman’s testimony where it con-
flicts with Valentine’s testimony that Kitzman presented the
warning notice to him on July 15 and, as he did so, Kitzman
told Valentine, “I had nothing to do with this.”
It is undisputed that Valentine had suffered a facial burn
about 2 weeks before July 14. (Valentine testified that he was

313 The considerations, of course, would be different if the General
Counsel had shown that the sheet metal department supervisors knew
that Casper had singled out Valentine because of the many prounion
insignia that he wore.
314 Casper did not stop because he saw two employees with beards;
Patterson was not wearing his “1/4” sticker, but he was probably known
to the safety department personnel as one who possessed a beard per-
mit.
treated for the burns at the medical department, and he could
have been easily impeached by that department’s records if that
testimony had not been true.) Kitzman had allowed Valentine
to grow his substantial beard, obviously, because he knew that
shaving would be difficult after Valentine had sustained that
burn. Kitzman had certainly allowed Valentine to go without
being clean shaven through the start of the shift on July 14;
Valentine had then been required to sign in on Kitzman’s MCR,
and Kitzman had undoubtedly seen Valentine, with his substan-
tial beard, then. Even if, somehow, Kitzman had not seen Val-
entine during the morning of July 14, he had seen Valentine in
the few days before because substantial beards do not grow
overnight. When he saw Valentine during the several days be-
fore July 14, he necessarily then saw that Valentine’s face had
gone beyond the point of being clean shaven. As Kitzman al-
lowed Valentine to continue to grow such a beard, he condoned
Valentine’s violation of the no-beard policy. This condonation
lasted until Kitzman was told by one of his superiors to issue
the warning notice to Valentine, as Kitzman admitted to Valen-
tine on July 15 when he presented the warning notice.
The facts further show that, even if condonation had not been
proved, Valentine would not have been issued a warning notice
absent his extensive history of union activities. On cross-
examination, Kitzman admitted that he could have sent Valen-
tine to shave, rather than issue him a warning notice. Kitzman
was given every opportunity to qualify that admission while he
was on cross-examination, but he did not. On redirect examina-
tion, however, Kitzman attempted the explanation that he did
not allow Valentine to go and shave because, after he got the
memorandum from the safety department, he went to Valentine
and then saw that Valentine did, indeed, need a shave. This
testimony on redirect examination was testimony that warning
notices are always issued if the production department supervi-
sors agree with the inspectors that the no-beard policy has been
violated, but it is testimony that was not true, as made clear by
Territo’s testimony.
It is clear from the testimony of Territo that warning notices
are not always issued when memoranda are sent from the safety
department to the production departments; Territo testified
three times that only “generally” are warning notices issued
when the safety department notifies the production departments
of safety violations. (And Territo acknowledged that the safety
department does no followups to see if such warning notices
are issued by the production departments.) When asked specifi-
cally what supervisors could do when an employee is in viola-
tion of the no-beard policy, Territo first replied: “They sent
them home to shave. They made them punch out and go shave,
and then they could come back.” Only after that clear testi-
mony, did Territo add the alternative, “or they gave them warn-
ing notices.”
In summary, based on the fact that Kitzman had, previous to
July 14, allowed Valentine to report to work wearing a substan-
tial beard (because of Valentine’s job-related injury), I find that
Respondent had condoned the conduct for which it punished
Valentine. I would therefore find a violation of Section 8(a)(3)
on that account, alone. Further, I find that Respondent has
shown in its defense only that it could have issued the warning
notice of July 14 to Valentine, but it has not met its Wright Line
burden and shown that it would have issued the warning notice
even absent the protected activities of Valentine. As well as the
condonation factor, I base this finding on: (1) Territo’s admis-
sion that warning notices are only “generally” issued when
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1264
memoranda are sent from the safety department to production
departments; (2) Territo’s admission that supervisors some-
times send employees to shave, rather than issue them warning
notices, when violations of the no-beard policy are found; (3)
Territo’s admission that “the supervisor” can decide what, if
any, discipline is to be imposed for violations of the no-beard
policy (and there is no rigid policy requiring the issuance of a
warning notice, despite the boilerplate on the memoranda from
the safety department to the production departments); and (4)
Kitzman’s specific admission that he could have sent Valentine
to shave rather than issue him a warning notice. I therefore find
and conclude that Respondent, by issuing the July 14 warning
notice to Valentine, violated Section 8(a)(3).
(3) Valentine’s discharge for threatening a supervisor
On August 3, near the end of the workday, Kitzman ap-
proached Valentine and remarked that Valentine had a hole in
his work boot, another safety violation. Valentine asked Kitz-
man if he could continue working if he could borrow another
employee’s boot; Kitzman said that Valentine could. Valentine
borrowed a boot and then approached Kitzman. According to
Valentine, Kitzman told him that he did not care about the boot,
but CDC General Foreman Roy Toledano was “pushing” the
matter. Valentine testified that when he left Kitzman he met
sheet metal department employee Patterson; in the immediate
area was a third employee who was wearing a black hardhat
(indicating that he was an employee of the CDC department).
Valentine explained to Patterson what he had been doing over
the prior several minutes; in the process, he referred to Tole-
dano as an “ass.” Later in the day, Kitzman and Toledano ap-
proached Valentine. According to Valentine:

Kitzman asked Roy, “Is this the man that threatened
you.”
And he [Toledano] said, “Yes.”
And I told him, “Well, how can I threaten you; I never
did talk to you.”
And he replied that, “I know you didn’t talk to me, but
one of my workers heard it and told another co-worker of
mine that came back and told me that you said you was
going to kick my ass.”
I told him [Toledano] that was a lie.

Kitzman told Valentine to go back to work. Later in the day,
Valentine went to Kitzman’s office to get another assignment;
Kitzman and Schloegel were there. Kitzman told Valentine that
he was being discharged for threatening Toledono. Valentine
again denied that he had done so, but Kitzman replied that
Toledono had said that the CDC department wanted Valentine
discharged. Valentine asked Schloegel if it were true that he
was discharged, and Schloegel replied, “Yes, you are termi-
nated. And Roy will have his witness in court.” Kitzman es-
corted Valentine off the premises. As they were leaving the
work area, Patterson approached and announced that he had
been present and would serve as a witness for Valentine in
future litigation. All of this testimony by Valentine was credi-
ble.
The next day, Valentine testified, Schloegel telephoned Val-
entine. Schloegel told Valentine to report back to work, and he
would be paid full backpay, “because they couldn’t find evi-
dence that I threatened Roy.” Valentine was reinstated the
following day, with backpay.
No witness testified that he heard Valentine threaten Tole-
dono. Schloegel (vol. 109) testified that CDC Superintendent
Leroy Cortez demanded that he discharge Valentine, and he
complied by telling Valentine that he was, indeed, discharged.
Schloegel and Kitzman, however, then contacted their superin-
tendent, Poleto. Schloegel and Kitzman told Poleto that they
did not believe that Valentine had threatened anyone. Poleto
contacted Ernest Griffin, Respondent’s vice president in charge
of the human resources department, and explained what had
happened. Poleto told Griffin that Valentine should not have
been discharged, even though Cortez, another superintendent,
had ordered it. Griffin agreed and told Poleto to call Valentine
back to work and Valentine would be given back pay for all the
time that he had missed. No discharge papers (such the ASI-22
form) were processed for Valentine.
If animus toward Valentine’s protected activities was part of
the reason that the CDC supervisors demanded his discharge, it
was effectively extinguished by the actions of the supervisors
of the sheet metal department. I agree with Respondent that
Valentine was not discharged; in effect, he was given a day off,
with pay. I shall therefore recommend dismissal of this allega-
tion of the complaint.
4. Employees discharged for sleeping
a. Jose Aguilar
Jose Aguilar (vols. 12, 159), a pipe and systems tester, was
issued a warning notice on October 5, and he was discharged
on October 8, 1993. The second complaint, at paragraphs 125
and 127, respectively, alleges that Aguilar’s warning notice and
discharge violated Section 8(a)(3). The General Counsel con-
tends that Respondent warned and discharged Aguilar because
of his known union activities and expressions of sympathy
which included his displaying prounion insignia on his hardhat
and on the bumper of the vehicle that he regularly drove to
work. The complaint further alleges that, in violation of Section
8(a)(1): Aguilar was warned that his union activities were being
kept under surveillance, Aguilar was threatened with unspeci-
fied reprisals because of his union activities, and Aguilar was
threatened by being told that he had been discharged because of
his union activities. Respondent denies that the alleged threats
and warning occurred. Further, Respondent answers that its
supervisors had no knowledge of any union activities or sympa-
thies of Aguilar at any time before he was issued the warning
notice, although Respondent admits that its supervisors had
such knowledge before Aguilar was discharged. Respondent
further answers that Aguilar was issued the warning notice
solely because he did not possess personal hand tools that all
pipe-testers are required to possess, and Respondent further
answers that Aguilar was discharged because he was found
sleeping during working time. The General Counsel replies that
the defense for the warning notice is a pretext because Aguilar
had not been required to possess the tools before he engaged in
union activities. The General Counsel further replies that Re-
spondent’s defense for the discharge is a pretext because Agui-
lar was not sleeping at the time in question. Alternatively, the
General Counsel contends that, even if the Board finds that
Aguilar had been sleeping, it must nevertheless hold that Agui-
lar was treated disparately because other employees were found
sleeping on duty but they were issued lesser, or no, discipline.
Ultimately, I find and conclude that Aguilar’s warning notice
was not issued because of his union activities, that Aguilar did
AVONDALE INDUSTRIES

1265
sleep on duty, that Aguilar was treated disparately for that of-
fense, and that his discharge violated Section 8(a)(3).
Aguilar was usually employed by Respondent’s ships’ test
and trials (operators) department as a tester of systems on ships
just before they were delivered. Jeffrey Boudreaux was the
superintendent of the operators department at the time Aguilar
was assigned there. At the time of the events in question, Agui-
lar was assigned to the pipe department to work for various
foremen who reported to General Foreman John Whittington.
Aguilar testified that about 2 weeks before the June 25 Board
election, he placed a union bumper sticker on his pickup truck
that he regularly drove to work; the bumper sticker stayed there
through the date of his discharge. Also, for 2 days during the
week before the Board election, Aguilar wore a “Union-Yes”
sticker on his hardhat; Aguilar removed it immediately after the
election. In the “Employee Comment” space of the warning
notice that Aguilar received on October 5, Aguilar wrote “I
refuse to sign this because this is a form of harassment in re-
taliation for being a union supporter.” Also, as admitted by
Whittington, the supervisor who ultimately discharged Aguilar,
immediately after he received the warning notice, Aguilar
placed another union sticker on his hardhat; it stayed there
through the date of his discharge.
Aguilar testified that about 2 days before the Board election,
Pipe Department Foreman Lawrence Mullins spoke to him in a
work area and:

Well, he told me that I had been named in a—that I
had been identified in a pipefitters foreman meeting as a—
okay, a union supporter.

. . . .

He told me to “Be careful, Jose, be careful.” He also
named the person who ID’d me, and that was Billy Goat,
Jr.

(“Billy Goat, Jr.” is employee Karl Knecht. Karl Knecht is the
son of Pipe Department Foreman Harold (Billy Goat) Knecht.)
Based on this testimony by Aguilar, paragraph 48 of the second
complaint alleges that Respondent, by Mullins, “threatened its
employees with unspecified reprisals because they aided or
supported the Union.”
Karl Knecht (vol. 121) testified for Respondent that he had a
confrontation with Aguilar at which time Aguilar was wearing
a prounion sticker on the inside of his hardhat. During that
confrontation, Knecht told Aguilar that if he was so proud of a
“Union-Yes” sticker, he should wear it on the outside of his
hardhat. Aguilar responded angrily and told Knecht that, if he
got discharged because of the sticker, he would assault Knecht.
Knecht testified that he told his father, Foreman Harold Knecht,
about the incident, but he further testified that he told no fore-
man that he saw Aguilar’s prounion sticker. I do not believe
that Knecht told his father about the incident, but that he did so
without mentioning the prounion sticker. I find that employee
Karl Knecht told Foreman Harold Knecht about Aguilar’s
prounion sticker. I further believe that the “word” was spread at
some foremen’s meeting. I further believe, and find over Mul-
lins’ denial (vol. 121), that Mullins told Aguilar that he had
been identified as a union supporter in a foremen’s meeting and
that he should “be careful,” as Aguilar testified. I accordingly
conclude that, in violation of Section 8(a)(1), Respondent, by
Mullins, on June 22, 1993, threatened its employees with un-
specified reprisals because of their prounion sympathies.
Aguilar further testified that on Friday, September 3, as he
was leaving the plant in his vehicle that had a prounion sticker
on the rear bumper:

I had gotten off at about 3:30, and I was on my way
home from work, and I had noticed one of the pipefitter
foremans, [actually, Operators Department General Fore-
man] Bob Olmstead, pull up behind me.
And we had recognized each other; we had waved at
each other. And when I had left, when the light turned
green, I had noticed him standing up in his van looking at
the rear of my truck. So I was at fear that someone may
have hit me in the parking lot, so I pulled over and I
looked at my truck. I didn’t see any damages, so I went
ahead and I went home.

Then, further according to Aguilar, on September 7:

Tuesday—I remember because the Monday was Labor
Day—Tuesday, Bob Olmstead called me to the side—it
was just him and I—and he asked me if—he asked me
whose truck I was driving Friday afternoon when we had
seen each other. And I told him it was mine, and that was
the end of the conversation.

Olmstead (vol. 120) testified for Respondent, but he did not
deny Aguilar’s testimony about his September 3 and 7 conduct,
and I found it credible. Aguilar testified that later on September
7:

After I had finished spoken to Bob Olmstead, about a
half hour later Jeff Boudreaux came to where I was col-
lecting test memos in back of the operator’s office.
He called me to the side . . . it was just him and I
there—he told me, “Off the record, Jose, I know that you
are a union supporter. Oh, I have nothing against it, but I
know that you are,” which totally caught me off guard and
I could only ask him where he got his information.
He told me he couldn’t say. I then again tried to name
a couple names, and he told me again that he couldn’t say.

Based on this testimony, paragraph 73 of the second complaint
alleges that Respondent, by Boudreaux, “created the impression
among its employees that their union activities are under sur-
veillance by the Respondent.” Boudreaux denied this testi-
mony; however, I found Aguilar credible on the point. A super-
visor’s calling an employee away from other employees and
then telling him that his prounion sympathies were known, but
refusing to tell the employee, when asked, how that knowledge
was gained, is an action designed to convey to that employee
that the information was gained by stealth, and unlawful means,
not observation of open and obvious activity (such as Aguilar’s
bumper sticker). The act of telling the employee that the com-
munication was “off the record” would further tend to coerce
the employee by threatening him. I find and conclude that, in
violation of Section 8(a)(1), Respondent, by Boudreaux, on
September 7, 1993, created the impression of surveillance in an
employee.
(1) Aguilar’s warning notice for not having tools
On October 1, Aguilar was assigned a “flush watch” on a 3
to 11 p.m. shift. The flush watch, as Aguilar described it: “is
where we clean the internals of the piping with a hot oil and
pressure and a high temperature. And we run a pump and a
filter to pick up any sediment or trash that is—that could be
lodged in a pipe.” At 3:30 p.m. General Foreman Whittington
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1266
told Aguilar to repair a steam hose leak that was on the dock,
about 50 yards away from the point on the ship that Aguilar
was performing the flush-watch duties. Aguilar told Whitting-
ton that he did not have the tools necessary to repair the steam-
hose leak. Further according to Aguilar:

At the same time, [admitted Supervisor] Blaine Jo-
hannson, this other pipefitter foreman, told me to go bor-
row some tools from a ship operator by the name of Leon
Roberts. So I told him that I would get together with Leon
Roberts and I will get right on it.
I later went and spoke to Leon Roberts, and I asked
him if I can borrow some tools from him. He said that he
would come down with me to take a look at the job and
see what kind of tools I would need, so we went down at
the foot of the gangway where the job was at.
We took a look at it. It had 2-1/2 inch couplings on it,
and Mr. Leon said that he didn’t have the tools to perform
that job, that all he had was 14-inch pipe wrenches, which
wouldn’t fit, that don’t fit. So we tried them anyway, but
we was unable to get it off.
So I went on to try and borrow some more tools—to
try and find the right tools for the job. I called—I went to
the fire watch’s office; I called the other ships, because I
know that they have operators on other ships, with the
hope of trying to locate an 18-inch pipe wrench that will
fit this union [a junction between two hoses].
I didn’t have any luck, so I called John Whittington [at
home] at approximately 6:00 and I told him that I didn’t
have any luck locating any tools . . . to perform the job.

Johannson was not called by Respondent to testify; Roberts had
deceased by time of trial.
After Aguilar’s telephone call to his house, Whittington
came to the premises. Whittington also searched for a larger
wrench; when he failed to find one, Whittington took a steel
mall, and, according to Aguilar:

He [Whittington] beat the coupling until he broke it
loose. He beat it with the mall and he broke it loose, and
then he put the pipe wrench on it and spun it off. He—I
changed out the hose and he put it back on with the 14-
inch pipe wrench, and then he beat it again to tighten it up.
And then he started to boast about, it didn’t take him long
to do the job.
And I explained to him that I brought . . . all of my
tools home for fear of them getting . . . stolen, and that is
why I didn’t have the tools to perform the job, because
they had gotten stolen a couple times before. . . . [Whit-
tington said] that we would talk further about this in the
morning.

Aguilar testified that during the next workday Whittington
presented him with a warning notice for negligence because of
what had happened. Aguilar protested that he could not be con-
sidered negligent because he had called Whittington at home
for help. Whittington agreed, took the notice back, and Whit-
tington then sent Aguilar back to work. On October 5, further
according to Aguilar, Whittington presented Aguilar with an-
other notice. Whittington had marked the box for major of-
fense-2 of the Avondale Employees’ Guide, and Whittington
stated in the space for the reason for the warning: “Employee
didn’t have proper tools to complete job assignment. Job as-
signment was not done.”
Aguilar testified that he argued first that he should not have
been given another assignment while on flush watch. Further:

And as far as having the tools—from what it says here,
as far as having the proper tools to complete the job as-
signment, I didn’t have the—okay, that particular tool,
which I attempted to borrow the tools from the person that
they told me to go borrow the tools from.

Aguilar did not sign the warning notice; as previously noted, in
the “Employee Comment” section Aguilar did state that he
thought he was being harassed because he was a “Union sup-
porter.”
Whittington testified that he gave Aguilar the order to
change the steam hose because there was no one else present
during the second shift to do it, and this testimony was not re-
butted. Whittington denied knowing, at the time that he made
the steam-hose assignment to Aguilar, that Aguilar favored the
Union. Whittington further testified that when he initially gave
the order to Aguilar to fix the steam hose, Foreman Blaine Jo-
hannson and employee Leon Roberts were present. According
to Whittington, Roberts held up two wrenches, at least one of
which could have uncoupled the hose, and offered them to
Aguilar. Whittington testified that Aguilar agreed to take the
wrenches from Roberts and use them on the steam-hose as-
signment.
Whittington’s testimony about what happened when he re-
turned to the plant after Aguilar’s telephone call to his home
does not differ significantly from Aguilar’s. Whittington testi-
fied that during the next day, after conferring with Olmstead
(who was usually the general foreman directly over Aguilar
when Aguilar worked in the operators department) he com-
posed a warning notice for negligence and not completing the
job. When Aguilar protested, he changed the warning notice to
not having the proper tools and failure to complete a job.
Conclusions on Aguilar’s Warning Notice for not
Having Tools
For a day or two before the June 25 Board election, Aguilar
wore a “Union-Yes” sticker. Also during that period, Mullins
told Aguilar that he had been “identified” as a union supporter
in a foremen’s meeting (obviously after the younger Knecht
told Foreman Knecht of what he knew). Mullins further threat-
ened Aguilar by telling him to: “Be careful, Jose, be careful.”
On September 3, Olmstead, it is undenied, took special note of
the rear end of Aguilar’s truck where Aguilar had placed a
prounion bumper sticker. The next workday, September 7,
Olmstead confirmed with Aguilar that the employee had been
driving his own truck. Later that day Boudreaux approached
Aguilar and told him that, through means that he would not
disclose, he had found out that Aguilar was a prounion em-
ployee. Mullins’ and Boudreaux’s acts have been found above
to have constituted 8(a)(1) violations by Respondent. The acts
of the two general foremen and the foreman demonstrate to me,
and I find, that Aguilar’s prounion sympathies were well
known to Respondent’s supervisors at the time that the October
5 warning notice was issued; I discredit Whittington’s testi-
mony that he did not know of those sympathies. Animus toward
those who favored the Union, especially those who displayed
prounion insignia such as Aguilar’s bumper sticker, having
been established, it must therefore be held that a prima facie
case of unlawful motivation in the issuance of the October 5
warning notice to Aguilar has been established by the General
AVONDALE INDUSTRIES

1267
Counsel, and the Board must examine the evidence that Re-
spondent has presented in defense.
Respondent did not call admitted Supervisor Johannson, and
I credit Aguilar’s testimony that Roberts did not, in fact, have a
wrench that could disconnect the hose for purposes of repair.
Nevertheless, Aguilar admitted that he did not have the wrench
necessary to do the job of changing the ruptured hose. He testi-
fied that, even before Whittington had mentioned the possibility
of discipline over the issue, he told Whittington that he did not
have the 18-inch wrench because he had left all of his tools at
home out of fear that they would be stolen. This was the plain-
est of admissions that Aguilar was required, and knew that he
was required, to possess the tool with which the job could have
been completed. The General Counsel, nevertheless, contends
that: (1) Aguilar should not have been ordered to change the
hose because he was on a flush watch and busy with that duty,
(2) Whittington’s testimony shows that Aguilar should have
been able to borrow tools, and (3) Whittington should not have
banged on the coupling with a mall. The General Counsel did
not, however, allege that the original assignment was an act of
harassment (as the General Counsel does in other cases), and I
shall not substitute my opinion for Respondent’s about who
should have been assigned the work. Moreover, although Whit-
tington would have allowed Aguilar to borrow tools, this does
not detract from the fact that Aguilar was charged with the duty
of having his own tools, as Aguilar admitted. It is true that, as
the General Counsel points out on brief, Whittington admitted
that he did not always discipline employees who failed to have
all of their required tools; however, there is no evidence that
Whittington failed to discipline employees whose failures to
have their tools resulted in such problems as that presented by
Aguilar’s failure to have his tools on October 1. Finally, bang-
ing on the coupling does not sound like a traditional (or even
safe) technique, but the job needed to be done, and Whitting-
ton’s methods are not the proper subject of the Board’s in-
quires. I find and conclude that Respondent has demonstrated
that it would have issued Aguilar the warning notice of October
5 even in the absence of his known protected activities. Accord-
ingly, I conclude that Respondent did not violate Section
8(a)(3) by Whittington’s issuance of that warning notice. I shall
therefore recommend that this allegation of the complaint be
dismissed.
(2) Aguilar’s discharge for sleeping in a control room
On October 7, Aguilar was assigned to work an 11 p.m. to 7
a.m. shift. Aguilar testified that he worked in the MMR-1, the
main machinery room of the ship, until other workers cut off
the electricity about 3:30 a.m. The only light remaining was
from an emergency system and was comparatively dim. Aguilar
went to the AMR-1, an auxiliary machinery room. There, he
found employee Mike Barr and an employee of a vendor who
stated that they had cut the power while installing a new control
panel, and they told Aguilar that they would be through in 15
minutes. Aguilar went to a nearby AMR-1 control room (tech-
nically: an “engine room operating station”) that was about 8-
feet by 8-feet, and it had no door. Aguilar sat down and waited
for the power to be turned back on. According to Aguilar:

And about approximately 4:00, I guess, [electricians]
Rico Martinez and Steve Roppolo walked in and sat down
at the door, and about two minutes later, John Whittington
came into the room, [and Whittington] asked Steve and
Rico what they were doing, and they told him that they
just had sat down.
And then he looked in back of the room and he saw me
sitting back there, and he asked Rico how long have I been
sitting back there. And they told him . . . that I had been
back there for about two minutes since the time that they
had sat down, that they didn’t know how long I had been
sitting back there, that they had just sat down themselves.
So then he [Whittington] took off, and about a minute
later he came back and he touched me on my leg and I
asked him what he wanted, and he asked me if I was [not]
supposed to be in MMR-I, and I told him that Mike Barr is
with the vendor and they have the power secured, and that
I am going to wait for [them] to restore the power so I can
go turn on the A/C [air conditioning] system and the venti-
lation system back on. Since the A/C system is forward of
the AMR-I, I sat there and I waited for them.

. . . .

Then he [Whittington] turned around and he left, and a
couple minutes later the power was back on, so I went to
the forward A/C plant and I started it up, and while I was
waiting for it to go on line, John Whittington and a boss
man, which I don’t know his name, this other pipe fore-
man, approached me and told me: “Your time stopped at
5:00. Pack your bags and go home.”
So I asked him what is he talking about, and he said,
“Sleeping on the watch. I have two witnesses.” I told him,
I wasn’t sleeping on the watch. And, right, he said he had
two witnesses. He told me: “Pack your bags and go home.
You are fired.”

Aguilar testified that he then left the premises and:

About 6:30 I called up Jeff Boudreaux, the operator
superintendent, and I asked him if he was going to stand
by John Whittington firing me because he thought I was
sleeping.
And I told him that I had witnesses, that I was working
with Mike Barr and the vendor, and he told me, “Jose, you
made the wrong decision.”
I said, “What? What do you mean?”
He said, “Jose, you are fired.”

Based on Aguilar’s testimony of his exchange with Boudreaux,
paragraph 75 of the second complaint alleges that Respondent,
by Boudreaux, “informed an employee that an employee had
been discharged because he aided or supported the Union.”
Additionally, the General Counsel contends that Boudreaux’s
remark was an admission that Aguilar was actually discharged
because he had made the “decision” to support the Union.
Boudreaux denied Aguilar’s testimony on this point, but I
found Aguilar credible. I do not, however, find a threat, or an
admission, by Respondent in Aguilar’s testimony. Aguilar told
Boudreaux that Whittington had at least thought he was sleep-
ing; it is equally inferable that Boudreaux was backing his fel-
low supervisor and telling Aguilar that he made the “wrong
decision” to sleep on duty. I shall, therefore, recommend dis-
missal of this allegation of the complaint.
Aguilar’s Discharge—Respondent’s Evidence
Whittington testified that he came to the ship between 3:30
and 4 p.m. on October 7 to make a routine inspection of the
flush watch. At the time he arrived, the power had been re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1268
stored to the ship. The air-conditioning and flushing systems
were on stand-by, waiting to be re-started. A sea-water cooling
pump for the air-conditioning system had stayed on line when
the power went off, so it had started automatically when the
power was restored. Aguilar was not where he should have
been, in the MMR-1. Whittington looked for Aguilar for 20
minutes and then found him in the AMR-1 control room.
(Whittington testified that the control room was only 2 minutes
away from the MMR-1, but it took him 20 minutes to find
Aguilar because he had had no reason to look for Aguilar in the
area of the AMR-1.) According to Whittington, Aguilar was
lying prone, with a cap pulled over his eyes. Whittington called
Aguilar’s name twice, but Aguilar did not respond. Whittington
shook Aguilar and then:

I said, “Were you asleep?”
He replied: “Yes; what do you want?”
I said, “I need you to go get everything back up and
running, we need the AC plants running.”
He said—you know he was kind of groggy so it wasn’t
real quick, and he said, “Well, I need to get the sea water
pumps going.”
I said, “No, you don’t, they are already running, they
have been running, you haven’t been watching them; go
get the AC plants going.”
So he went to the forward AC machinery room. That is
the last time I spoke to him. I went and got [Pipe Depart-
ment Foreman] Chris Trotter, explained to Chris Trotter
what had happened, [and I asked] would he witness the
termination. He said, “Yes,” he would. Chris Trotter went
with me to the forward AC room.
I told Mr. Aguilar: “Jose, you are being terminated for
sleeping on the job; I need your badge.” He gave me his
badge and left.

Respondent called electricians Martinez and Roppolo (both
at vol. 70). Both testified that when they went to the control
room to take a lunchbreak, the power and lights were on (al-
though they earlier had been off), and Aguilar was sitting in a
chair, leaning against a large toolbox, his face covered by a
baseball cap, apparently asleep. Both testified that Whittington
called Aguilar by name, twice. When Aguilar did not respond,
Whittington shook Aguilar, at which point Aguilar got up with-
out saying anything. Then Aguilar and Whittington left the
room. Roppolo and Martinez also testified that Aguilar later
returned and told them that he had been fired and asked them to
be his witnesses that he had been awake before Whittington had
entered the control room.
In rebuttal, Aguilar denied that he admitted to Whittington
that he had been sleeping, and Aguilar denied that he ever saw
Martinez and Roppolo after he left the control room.
Aguilar’s Sleeping—Credibility Resolutions
I believe, and find, that Aguilar was sleeping when he was
found by Whittington. Although there are minor discrepancies
and difficulties among the descriptions, I credit Whittington,
Martinez and Roppolo that Aguilar was lying, or slouched in a
chair close to the point of lying, in a position indicative of noth-
ing but sleep. The disinterested testimonies of Martinez and
Roppolo that Aguilar was apparently sleeping were credible.
(Clearly Roppolo was not hostile to Aguilar; Roppolo testified
that the baseball cap that Aguilar had over his face, while sleep-
ing, was a union-emblem cap, although Aguilar denied that he
was wearing a cap with prounion insignia.) That testimony,
along with essentially consistent, and credible, testimony by
Whittington, proves to me that Aguilar was sleeping, with his
eyes covered by a baseball cap, when Whittington entered the
room. An admission of sleeping is even implicit in Aguilar’s
testimony; Aguilar testified that Whittington spoke to Roppolo
and Martinez and asked how long Aguilar had been there, but
Aguilar did not speak up and say anything (such as: “Why are
you asking them that?”). Additionally, I do not believe that
Aguilar would not have allowed to go unchallenged Whitting-
ton’s (or anyone else’s) touching him on the leg, as Aguilar
described, unless he had been asleep when Whittington ap-
proached him.
I find that Aguilar sat in the control room to wait for the
power restoration. Then he fell asleep and he slept through the
power restoration, through the entry of Roppolo and Martinez
into the control room, through Whittington’s entry into the
control room, through Whittington’s looking directly at him
without saying anything to him (and, of course, Aguilar’s not
saying anything to Whittington), through Whittington’s asking
Roppolo and Martinez if that was Aguilar whose eyes were
covered by the bill of his cap, through the answer of Roppolo
and Martinez that it was Aguilar, and through Whittington’s
twice calling Aguilar’s name. Aguilar reached some level of
consciousness when Whittington was asking Roppolo and Mar-
tinez how long Aguilar had been in his sleeping position. Nev-
ertheless, perhaps because of the degree of his somnolent state,
Aguilar was unable to respond to Whittington himself. Whit-
tington then touched Aguilar and fully awakened him. Al-
though it was in a voice that was apparently too low for
Roppolo and Martinez to hear, Aguilar then admitted to Whit-
tington that he had been asleep, as I further find. I further credit
Whittington’s testimony and find that, the moment Aguilar
admitted to sleeping, he decided to discharge Aguilar. Finally, I
find that, after he was discharged, Aguilar returned to the work
area of Roppolo and Martinez and asked them to be false wit-
nesses for the proposition that, just before Whittington entered
the control room, he had been awake.
I do not, however, credit Whittington’s testimony to the ex-
tent that it seeks to imply that Aguilar was out of his work area
when he went to the control room because Aguilar should have
remained in MMR-1. Only the sea water cooling pump was
working after the power had been restored; it had gone on
automatically, and there was no discernable “need” to monitor
it before the air-conditioning system (which it serviced) was
operating. That is, Whittington did not testify that the sea water
cooling pump, as opposed to the flushing system, had to be
monitored constantly. To the extent his testimony may be said
to imply such, I discredit it. Both Aguilar and Whittington testi-
fied that Aguilar’s first duty after the power was restored was to
re-start the air conditioning system. Both testified that the air-
conditioning system was forward of the control room, and
MMR-1 was aft. Respondent has not shown that Aguilar’s de-
cision to wait in the control room (which was only 2 minutes
away from MMR-1, according to Whittington) until the power
was restored was unreasonable, or somehow a dereliction of his
duty. That is, Respondent has not shown that there was any-
thing wrong with Aguilar’s going to the AMR-1 when the
power went out, and it has not shown that Aguilar neglected his
duties by waiting there, in the control room, for the power to be
restored, rather than returning to MMR-1 to watch the sea-
water cooling pump (which was not cooling anything because
AVONDALE INDUSTRIES

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the air-conditioning system was off). Aguilar’s falling asleep as
he waited, of course, raises different issues.
Employees’ Sleeping—General Counsel’s Evidence of
Disparate Treatment
The Avondale Employees’ Guide lists as immediate dis-
charge offense-2: “Sleeping or deliberate loafing during hours
of work,” As Respondent’s progressive disciplinary system is
structured, “immediate” means that no prior warning is neces-
sary before discharge will be effectuated. The General Counsel,
however, introduced a great deal of evidence that Respondent’s
supervisors did not consider sleeping to be grounds for dis-
charge, despite the plain language of the Avondale Employees’
Guide.
On January 17, 1992, pipe department employee Gerald
Pennex fell asleep while conducting a pipe test, an equivalent
of the flush watch to which Aguilar was assigned on the night
of October 7–8. Buddy Roberts, the superintendent of the ship
that Pennex was working on, composed an ASI-22 (discharge)
form for Pennex stating that Pennex had violated the Avondale
Employees’ Guide’s immediate discharge offense-2. Roberts
added that Supervisor “R. Weber” also witnessed Pennex’s
sleeping. The form was processed to Production Vice President
Michael Simpson, apparently without having gone through then
Pipe Department Superintendent Ken Genter. On the ASI-22
form, Simpson wrote: “IVO [in view of] 10 yr. work record, I
choose to have Pennex suspended for three days without pay.
Further violation will result in immediate dismissal.” On cross-
examination Simpson (vol. 139) was asked and he testified:

Q. Mr. Simpson, why didn’t you agree with the dis-
charge of Mr. Pennex?
A. His superintendent came to me and described to me
a long work record that was very good and some extenuat-
ing circumstances for the man going to sleep and re-
quested that he not be discharged.
Q. Besides having a good work record, what were the
extenuating circumstances?
A. Well, I just described to you the position he was in,
the job he was doing, the climate in the area which he was,
and the fact that he obviously didn’t do it on purpose, be-
cause he was in plain view of everybody. And his superin-
tendent [Genter] told me that he was on cold medication. .
. . He was sitting up—the overhead of the prison barge is
about 20 feet high. And he was way up in the overhead,
sitting on pipes while he observed the test of some piping
system. . . . It was winter, and everybody was dressed very
warmly. And it was cold in the compartment below, but it
was warm up in the piping. And he was sitting up there
overdressed, with a wonderfully boring job, and on cold
medication, a good, long record of no prior problems, and
a special request from the superintendent to give him spe-
cial consideration, which I did.

At the time of his discharge, Aguilar had been employed by
Respondent for 5-1/2 years, beginning December 11, 1987. He
received three warning notices during that period. The October
1 warning notice has been discussed above. In addition, Re-
spondent offered another 1993 warning notice that Aguilar
received on March 31, 1993, for a violation of general offense-
4 (for “leaving work place”). Respondent also offered a 1991
warning notice for a violation of major offense-11, an unau-
thorized exit from the property. (I rejected Respondent’s offer
of the latter warning notices because no relevance had been
shown at the time, but I consider them here.) Respondent of-
fered no other warning notices that were issued to Aguilar dur-
ing his tenure. In addition to receiving only three warning no-
tices during a 5-year tenure, Aguilar received four commenda-
tions that were received in evidence: (1) On December 1, 1988,
his supervisor recommended him for an upgrade in classifica-
tion as a “valuable and seasoned employee . . . gives full effort .
. . Learns quickly . . . . Needs minimal amounts of job supervi-
sion . .. always available for emergency work on short notice . .
. productivity has greatly increased as have his job skills.” (2)
On March 14, 1990, a ships’ superintendent composed a memo-
randum to the human resources department that states that
Aguilar and three other employees had taken quick action to
contain a fire while the fire department was being called. The
memorandum concludes: “There is not doubt [that] the damage
could have been more extensive had it not been for the actions
of these employees.” (3) On March 16, 1990, Aguilar’s super-
visor recommended him for a wage increase stating:

Mr. Jose Aguilar continues as one of my most aggres-
sive and productive memo-testers. He has learned a num-
ber of new systems, taken them on as a challenge,
groomed them for defects, interface well with supporting
crafts, corrected minor defects, and demonstrated systems
to the Navy. To date, Jose has closed more memos [as-
signments] than any other operator. Jose has been develop-
ing into a high caliber operator/tester and merits a raise.
He and a co-worker have only last week located a fire,
sounded the alarm, [and] fought and extinguished a Class
A fire.

(4) On April 13, 1992, Aguilar’s then-supervisor also wrote a
four-paragraph “To whom it may concern” letter stating that
Aguilar had worked under him since May 9, 1988, and that:

During this period, he has been delegated numerous
job assignments requiring manual dexterity and a firm
mental grasp of how various systems operate.
Mr. Aguilar has consistently demonstrated his skills
and his ability to get the job done on time and within cost.
He has an excellent record of job reliability, working eve-
ryday, and, when required, working over on short notice,
including weekends, to complete his job assignment.
During Mr. Aguilar’s assignment to me, he has proven
himself to be an exemplary employee and is an excellent
and conscientious mechanic, with the capability to work
well with his co-workers.

Other than Simpson’s bare statement that Pennex had caused
“no prior problems,” Respondent did not offer evidence of the
(“good”) work record of Pennex upon which Simpson relied in
reversing the ships’ superintendent’s decision to discharge Pen-
nex.
According to documentation introduced by the General
Counsel on rebuttal, on December 4, 1992, Simpson reversed
another departmental decision to discharge an employee for
sleeping, and, according to that documentation, Simpson had
been the one who caught the employee asleep. Employee
Lionel Griffin was hired in the paint department on March 8,
1988. On December 3, 1992, the paint department processed an
ASI-22 (discharge) form for Griffin stating: “Employee was
caught sleeping on the job (Truett) by Mike Simpson. [signed]
Frank Munger.” After this entry, however, Simpson wrote: “In
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1270
view of length of service, excellent previous work record, and
his recommendation of his superintendent, Mr. Griffin is to be
suspended 3 days w/o pay instead of discharged. [Initialed and
signed by Simpson.]” Simpson was not called in surrebuttal to
offer any additional explanation of why Griffin’s discharge was
converted to a 3-day suspension.
Further in rebuttal, the General Counsel introduced other
documentation that demonstrated that other employees were
found sleeping in the 1990–1994 period, but they were not
discharged. Some of the documentation recites that there were
no witnesses to an employee’s sleeping other than the foreman
who caught the employee. On brief, Respondent contends that
two witnesses to the sleeping are necessary before an employee
is discharged for sleeping, and that all such documentation is
irrelevant. Simpson (who was the penultimate supervisor of all
4100 production and maintenance employees and who headed
Respondent’s campaign against the organizational attempt),
however, denied that Respondent had a requirement that there
be two witnesses to an employee’s sleeping before such em-
ployee is discharged. Also, many of the warning notices that
state “no [other] witnesses” were issued in the paint depart-
ment. Upon this factor, Respondent contends that it has been
proved that, at least in the paint department, two witnesses to
sleeping are required before a discharge will be implemented.
In this regard, Paint Department Superintendent Bourg was
asked on direct examination and he testified:

Q. Do you have any rules or policies in your depart-
ment as to how employees who are caught sleeping on the
job are to be handled?
A. Yes. You know, we like to have a witness if we
catch anyone sleeping on the job, you know, because it is
best to have a second party to witness an employee that
has been caught sleeping.
And, again, each individual case is judged by whether
that employee might have been known by the foreman
knowing that he had a problem, that he maybe spent the
night in the hospital with someone, whatever. And there’s
times that where an employee caught someone sleeping,
and he said, “Hey, look, before I am forced to terminate
your services, I think it is best for you to go home and get
some sleep.” That has happened a few times.

Contrary to Respondent’s assertions, Bourg did not thereby
testify that, even in the paint department, two witnesses are
required before an employee will be discharged for sleeping;
Bourg testified only that it is “best” to have two witnesses.
(Even then, as the above quotation shows, and as subsequent
cross-examination showed, Bourg testified that he would con-
sider the circumstances of each case; he did not testify that the
paint department treated sleeping as an immediately discharge
able offense.) Stan Oliver, Respondent’s fire chief, was the
only department head who testified that his department requires
two witnesses before an employee is discharged for sleeping.
Accordingly, I find that all of the following warning notices,
and all of the following other documentation, are relevant in
deciding if Aguilar was treated disparately.315 Some of these

315 For possible purposes of review, I will quote any notations by su-
pervisors that there was only one witness to an employee’s sleeping; on
review, however, it should be noted that none of the warning notices
state that the lack of a second witness was the only reason that the
employee was not being discharged. Moreover, the clear majority of the
warning notices recite that the employee is guilty of “sleeping
or deliberate loafing.” Although such notations leave open the
possibility that the cause of the warning notice was not sleep-
ing, these warning notices show that, although both offenses are
included in the wording of immediate discharge offense-2 of
the Avondale Employees’ Guide, it is obvious that neither was
considered to be an immediately discharge able offense by the
supervisor and the department in which he worked.316
(1-2) The first two documented cases of employees not being
discharged for sleeping are those of Pennex and Griffin, as
detailed above. Additionally: (3) On December 3, 1990, electri-
cal department employee B. Rousell was issued a general of-
fense-4 warning notice for: “Lounging on a rack in the CPO
berthing during working hours.” (A “rack,” in Navy parlance, is
a bed.) Previously, on October 29, 1990, this employee had
been issued a detailed warning notice for refusal to follow in-
structions and “displaying an attitude less than acceptable.” (4)
In 1991, employee 11983 was issued five warning notices, the
last for sleeping, and he was still not discharged. The em-
ployee’s first three warning notices of 1991 were for wasting
time; the last of those three states: “You are hereby notified that
this type of action will not be tolerated by this dept. Beware,
action may be taken against you. 3rd notice. Final Warning.”
Thirty-three days later the employee received another notice for
wasting time, and that fourth warning notice concludes: “This
action will not be tolerated by this dept. Last and Final Warn-
ing.” Two weeks later the employee was issued his fifth warn-
ing notice that stated: “Sleeping on the job site. (No witnesses.)
Your foreman observed you sleeping on the job site. This ac-
tion will not be tolerated by the dept. This is your only warning
given. If it happens again, you will be terminated.” (5) On Feb-
ruary 20, 1991, paint department employee Ronald Newman
was issued a warning notice that stated: “You are being warned
about sleeping on the job. Seen sleeping by Kelly, the electrical
foreman.”317 Five months later, Newman was issued another
warning notice for wasting time. (6) On March 7, 1991, electri-
cal department employee Steven Johnson was issued a warning
notice for wasting time and insubordination; the warning notice
stated: “Employee was also wasting time (lying down on scaf-
fold board) which resulted in lack of production. Final warn-
ing.” (7) On April 9, 1991, paint department employee 10048
was issued a warning notice for: “Substandard workmanship.
Was caught sleeping on the job by pusher [leadman] (Watson).
You are hereby warned that this conduct will not be tolerated.
This is a final warning.” (8) On May 18, 1991, paint depart-
ment employee Cedric Tate was issued a warning notice that
stated: “Employee was found by foreman and an hourly man
sleeping on the job. Employee was given a verbal warning.
Foreman clocked out employee and sent him home. Sleeping or
deliberate loafing during work hours will result in termination
of employment if continued. No salar[ied] foreman in sight.
This is your last and Final Warning.” (9) On June 10, 1991,
pipe department employee 2968 was issued a general offense-4

warning notices for sleeping, including paint department warning no-
tices, do not mention any lack of corroborating witnesses.
316 The proof that the following-listed employees were not dis-
charged is shown by a warning notice’s being “final” or the existence
of other documents such as subsequently issued warning notices.
Where stated, and legible, I give the employees’ names; otherwise, I
use employee badge numbers. Exclamation marks, as well as other
marks of emphasis, are original.
317 James Kelly is an electrical department general foreman.
AVONDALE INDUSTRIES

1271
warning notice for: “Wasting time, loitering. Employee was
sleeping on job! Next offense will result in termination.”318 (10)
On June 20, 1991, shipfitting department employee 677 was
issued a warning notice that stated: “This is your first and last
warning for sleeping on the job. Continue to do so will result in
your termination.” (11) On August 7, 1991, paint department
employee 10650 was issued a warning notice that stated:
“Sleeping or deliberate loafing during hours of work. Foreman
found employee sleeping on the job site. No witnesses. Em-
ployee admits to sleeping on job. This will not be tolerated by
this dept. If it happens again, you will be terminated. You are
hereby warned and given written notice.” Two months before,
this employee had received a major offense warning notice for
substandard workmanship. Two days after the warning notice
for sleeping, this employee was issued a general offense warn-
ing notice for wasting time. (12) On September 16, 1991, CDC
employee 12970 was issued a warning notice for: “Sleeping or
deliberate loafing during hours of work. You are hereby warned
that any future citations from this day on will result in termina-
tion of employment per Leroy Cortez CDC supervisor. Final
Warning.” During the 6 months before this warning notice was
issued the employee received two other warning notices for
“Intentional negligence-Destroying Avondale Property,” and
absenteeism. (13) On December 12, 1991, electrical department
employee Dwane Harris was issued a warning notice that
stated: “Mr. Harris was found by his supervisor laying on top of
pipes in a dark area of the engine room, close to his work area,
with a piece of fire cloth draped in front of him.” (14) On Janu-
ary 10, 1992, paint department employee David Doncet was
issued a warning notice that stated: “Employee was observed
sleeping on top of some scaffold boards in the midbody. You
are hereby warned that if you are caught sleeping on the job
again you will be terminated.” (15) Also on January 10, 1992,
paint department employee 11507 was issued a warning notice
that was identical in text to Doncet’s. During the preceding 8
months this employee had received four warning notices, two
for absenteeism, one for “intentional negligence,” and one for
“carelessness or improper use of Company equipment.” (16)
Also on January 10, 1992, paint department employee 732 was
issued a warning notice for sleeping that was identical in text to
those that were issued to Doncet and employee 11507. During
the preceding month, employee 732 was issued a warning no-
tice for a safety violation; 5 months’ later, the employee had
been issued warning notices for arguing with a supervisor319
and wasting time. (17) On February 10, 1992, paint department
employee 5504 was issued a warning notice for “tardiness,” but
the text of the warning notice is: “Employee was sleeping dur-
ing his lunch period. Employee overslept and reported to his
work area late. You are hereby warned that if you receive a
citation for any reason you will be terminated after signing this
final citation. (Note employee has 3 citations in folder at pre-
sent.) Final Warning.” Two of the warning notices to which the
warning notice for sleeping referred were issued in the preced-
ing month. This employee was also issued another “Final
Warning” for absenteeism 2 months’ later. (18) On June 15,
1992, shipfitting department employee Paul Griffin was issued
a warning notice that stated: “Went to First Aid and went to

318 Again, Aguilar was assigned to the pipe department at the time of
his discharge.
319 The full text of this warning notice is stated in the case of alleged
discriminatee Charles Bennett, infra.
sleep while waiting to be called in by nurse. Final Warning. Re-
occurrence can result in your termination.” (19) On October 12,
1992, pipe department employee R. G. Davis was terminated
for sleeping. The ASI-22 (discharge) form recites: “(Employee
was given a verbal [oral] warning by [salaried supervisor num-
ber] W-060 for sleeping and loafing on the job prior to dis-
missal.)”320 (20) On June 7, 1993, paint department employee
172 was issued a warning notice that stated: “You are hereby
notified that you were wasting time, loitering and sleeping on
the job. You are also [guilty of] intentional negligence, ineffi-
ciency or substandard workmanship. Should you continue to do
this, immediate disciplinary action will be taken. Final Warn-
ing!” This employee had previously received three prior warn-
ing notices for wasting time. (21) On June 10, 1993, paint de-
partment employee 10391 was issued a warning notice that
stated: “Intentional negligence, inefficiency or substandard
workmanship. Also employee was sleeping on the job. Final
Warning!” (22) On September 10, 1993, Operators Department
General Foreman Robert Olmstead wrote a memorandum to the
file of employee Roy Norwood stating that Norwood: “was
found sleeping in the forward 400 Hz. room. After being awak-
ened, he claimed that he was waiting for a breaker replacement
in the ISF switchboard. . . . Roy Norwood was given a verbal
warning by me, Robert E. Olmstead, Jr., not to be caught sleep-
ing again or it would cost him his job.”321 (23) On February 28,
1994, paint department employee 3137 was issued a warning
notice that stated: “You are hereby notified that you were
caught sleeping resulting in wasting time and loitering. This is a
final warning.” (24) On February 28, 1994, paint department
employee Daryl Louviere was issued an identical warning no-
tice. Three months before, Louviere had received another warn-
ing notice for loafing. (25) On April 4, 1994, paint department
employee 2013 was issued a warning notice that stated that:
“You are hereby notified that you were caught sleeping or de-
liberate[ly] loafing during hours of work. Should you continue
to do this, immediate disciplinary action will be taken.” (26) On
April 15, 1994, electrical department employee Frank Palmer
was issued a general offense-4 warning notice for: “Wasting
time, loitering. Dozing off during transit school.” Palmer was
subsequently issued warning notices for absenteeism and tardi-
ness. (27) On May 19, 1994, paint department employee 9552
was issued a warning notice that stated: “You are hereby noti-
fied that you were caught sleeping on the Bobcat [sweeper] on
the Dry Dock. Should you continue to do this, immediate disci-
plinary action will be taken.” This employee had previously, on
April 13, 1991, been issued a warning notice for an outright
refusal to do a job.322 (28) On June 17, 1994, sheet metal de-
partment employee Merlin Williams was issued a warning no-
tice that stated: “Employee was observed by foreman Al Kitz-
man sleeping on the job for about 4 to 5 minutes. FINAL
WARNING.” Between December 1992 and June 1993, Wil-

320 That is, on at least one occasion, this employee received no more
than an oral warning for sleeping. As discussed below, the General
Counsel introduced evidence that other instances of sleeping went
without even the comparatively mild punishment of a warning notice.
321 That is, this memorandum is a record of an oral warning, the only
punishment meted out for the employee’s sleeping.
322 As noted in the case of alleged discriminatee Charles Bennett,
such misconduct is within the literal, if not always enforced, language
of immediate discharge offense-1 of the Avondale Employees’ Guide.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1272
liams had received three warning notices for absenteeism and
tardiness.323
The General Counsel also introduced certain parol evidence
that sleeping is not considered an immediately discharge able
offense by Respondent. Specifically in regard to the pipe de-
partment where Aguilar last worked for Respondent, Whitting-
ton’s fellow General Foreman William Fedrick was asked and
he testified:

Q. BY MR. BENSINGER: You are aware that sleeping is
an immediate discharge offense under the employee hand-
book?
A. Under the handbook, yes.
Q. And if you caught an employee sleeping on the job,
you would fire him?
A. I would use my own discretion.
Q. How is it—well, tell us what that means.
A. At times, a man could be there waiting on his helper
to come back with the piece of pipe or a fitting. He may be
doing some, and may have had a bad night. He may close
his eyes. You could call that sleeping. And I will bump the
guy and say, “Hey, you need to go back to work.”

Such testimony, similar to that of Bourg’s above, shows that a
discharge for sleeping is a matter of “discretion,” not an ineluc-
table ground for immediate discharge. A specific illustration of
this exercise of discretion was further brought out in Fedrick’s
testimony. Fedrick acknowledged that, during the 18-month
period before the Union’s organizational attempt began in
March 1993, pipe department employee Tyrone Brousseau had
been caught sleeping “[f]our or five times,” but not discharged.
Fedrick was asked why he did not discharge Brousseau, and
Fedrick testified:

Because he was a good employee. . . [and Brousseau]
was having little problems at home at the time, and we
talked about his problems. And every once in a while, he
would be sitting on the bucket trying to do a little work,
and he would doze off, and I would [tell Brousseau]—
”Hey, you got to get back to work now.”
And that happened on several occasions. And I told
him he would have to kind of straighten himself up and get
his life back together.

Fedrick also acknowledged that, at least on one occasion, he
approved when his foreman, Renaldo Rodriguez, reported that
he had found Brousseau sleeping but did not discharge Brous-
seau. Finally, Fedrick acknowledged that, over the years, there
have been “two or three” other employees whom he has found
sleeping but did not discharge.
Alleged discriminatee Kevin Lockett (vol. 13) testified that
in 1993 Electrical Department General Foreman Mark Poche
twice excused his sleeping; one time he had been sleeping for
two hours, and another time for 6 hours. Lockett’s foreman,
Dell Thibodeaux, wrote him warning notices both times, but
both times, according to Lockett, Poche tore up the warning
notices. Thibodeaux and Poche denied this testimony, but the
following admissions of Poche, and the credibility of Lockett
on the point, cause me to credit Lockett. On direct examination,
Poche (vol. 77) was asked, and he testified:

323 The General Counsel offered other warning notices that were is-
sued for sleeping, but there is no indication that the subject employees
were not also discharged.
Q. [By Mr. Cupp]: During the time that Mr. Lockett
worked for you, did you ever find him sleeping?
A. Yes, sir. Physically find him sleeping, no, not
physically caught him sleeping.
Q. Did Mr. Lockett ever tell you that he was sleeping?
A. Yes, he did.
Q. What was the circumstances involved with that?
A. He was missing from the ship approximately two
hours, which we looked for him, couldn’t find him. . . .
We searched the whole ship. He wasn’t aboard the ship.
Approximately maybe two hours after we realized that he
was gone, we couldn’t find him. He came walking back
toward the ship. . . . I asked him where he had been. He
said he was sleeping. . . . I asked him if he has a reason
why he went to sleep. He said he didn’t feel well, and he
was taking medication.
Q. Why didn’t you terminate Mr. Lockett for sleeping?
A. He was honest in what he told me, that he was—
where he was. He did have the medication he was taking,
so therefore we kept him on. There was a discussion I re-
call that I had.
Q. Do you know whether any disciplinary action was
taken against Mr. Lockett?
A. In that case, no, sir.
Q. I want to go back to Mr. Lockett. Did you ever is-
sue warning notices to Mr. Lockett?
A. I don’t recall if I did or not.

On cross-examination, Poche was also asked about the treat-
ment (which treatment occurred at a time when Lockett was
wearing “Vote-No” (antiunion) stickers and speaking against
the Union). Poche was asked, and he testified:

Q. Are you aware of Mr. Lockett disappearing for
more than two hours on more than one occasion?
A. I think that there were two occasions that he disap-
peared.
Q. Is it Avondale’s policy, sir, that if an employee
candidly admits to you that he was sleeping on the job, he
will not be fired?
THE WITNESS: Is that an Avondale policy? No, sir.
Q. [By Mr. Lurye]: Is that your policy?
A. No, sir. It is my discretion to call.
Q. You exercised your discretion?
A. Yes, sir.
Q. At the time that you exercised your discretion and
did not fire Mr. Lockett when he admitted to you that he
was sleeping on the job, did Mr. Lockett get written up for
having disappeared for those two hours?
A. No, sir, he did not.

Therefore, whether there were two incidents of Lockett’s sleep-
ing or one, or whether Lockett was issued no warning notices
or two (or whether warning notices were torn up, or not), ac-
cording to Poche it is within a supervisor’s discretion to fire a
sleeping employee, and supervisors further have discretion not
to discipline a sleeping employee in any manner.
Also, Paint Department Foreman James Knoblock (vol. 98)
was asked on cross-examination and he testified:

Q. And although you discourage it, you have had occa-
sions from time to time when you found men or women
sleeping in the tanks when they should have been working.
A. Yes.
AVONDALE INDUSTRIES

1273
Q. And you would agree that, at least in some of those
cases, what you did was woke up the person and told them
to go back to work or sent them home and told them to
come back to work the next day.
A. I would have sent them home.
Q. Sent them home?
A. Sent them home or terminated them.
Q. But in some of those cases you have sent them
home and then told them to come to work the next day.
A. Right.
Q. And you have sent people home for sleeping and
then told them to come back to work the next day how
many times over all of the years?
A. Probably once or twice.
Q. And possibly more?
A. It could be.
Q. It is hard to remember?
A. Yes.

In view of all of this testimony, it is apparent that the super-
visors (from the chief vice president, down to superintendents,
down to foremen) feel they have the discretion to send an em-
ployee home (i.e., suspend him), or do nothing, if an employee
is found sleeping. The superintendent quoted above was Paint
Department Superintendent Bourg, but one other superinten-
dent has been shown to feel that he has such discretion. David
Koppleman, superintendent of Respondent’s commercial repair
department, denied that he possessed such discretion, but, as I
find in the discussion of William Sheard’s case, below, Kop-
pleman does not discharge sleeping employees if he finds that
they are “good” employees; this is a discretionary standard if
there ever was one. Finally, according to the testimony of Craft
Coordinator Dirk Cortez (vol. 88), in 1994, he and his superior,
Ship Superintendent Buddy Roberts, found employee Clayton
Plaissance in a “dark” area, in a sitting position, in circum-
stances which clearly indicated an act of the employee’s sleep-
ing; but nothing was done to discipline Plaissance. Superinten-
dents like Roberts, Bourg and Koppleman, it is to be remem-
bered, report directly to vice presidents; their assumptions and
exercises of discretion are necessarily exercises of corporate
policy, not aberrant behavior of a first-level foreman, or even a
general foreman.
Aguilar’s Discharge—Conclusions
As Whittington admitted, Aguilar began regularly wearing
prounion insignia on his hardhat immediately after he received
a warning notice on October 5. Even before that, however,
Aguilar’s prounion bumper sticker had been observed by
Olmstead. Also Boudreaux gave Aguilar a stealthy, and viola-
tive, warning that his prounion attitude was known. Aguilar had
been told that he had been identified as a prounion employee by
Mullins and told, violative ly, “be careful, Jose, be careful.” It
is therefore clear that the General Counsel has presented a
prima facie case that Aguilar’s discharge was unlawful, and the
burden shifts to Respondent to demonstrate by a preponderance
of the evidence that it would have taken the same actions
against Aguilar even in the absence of his known protected
activities. Respondent’s defenses must therefore be examined.
The testimony of Fedrick makes it clear that discharges for
sleeping, specifically in the pipe department,324 are matters for

324 As noted elsewhere, Respondent contends that, because its super-
visors are vested with a great deal of autonomy, historical disparate
exercise of supervisory discretion. Fedrick made it clear that
the degree of discretion vested in pipe department supervisors
is so great that employees are sometimes not even issued warn-
ing notices for their sleeping. Without more, Fedrick’s testi-
mony shows that Aguilar could have been discharged for sleep-
ing, but it refutes any contention that he necessarily would have
been discharged, even absent his known prounion sympathies.
I have rejected Whittington’s testimony that Aguilar had a
responsibility to return to MMR-1 and watch the sea-water
cooling operation, rather than sitting in the control room, while
he was waiting for the power to be restored on October 8. That
is, Aguilar was in his work area, but he had nothing to do be-
cause of an unusual circumstance (the power shutdown), and he
simply dozed. Aguilar’s lapse was certainly no worse than that
of pipe department employee Brousseau who fell asleep “four
or five times” on a bucket. Brousseau, however, was not disci-
plined; instead, he was given repeated chances to “get his life
back together,” as Fedrick acknowledged.
When Pennex was found sleeping on a flush-watch, he also
was in an position indistinguishable from that of Aguilar. (Ac-
tually, Pennex had less of an excuse than Aguilar; there was no
interruption of his ability to work such as the power shutdown
that occurred in Aguilar’s case.) Vice President Simpson, how-
ever, intervened and converted Pennex’s discharge to a suspen-
sion. Simpson testified that he intervened on behalf of Pennex
because Pennex was a “good” employee325 who was taking
medication, and “he obviously didn’t do it on purpose, because
he was in plain view of everybody.” The first thing to be noted
about this testimony is that Simpson also converted the dis-
charge of Griffin to a suspension, but Respondent offered no
surrebuttal that Griffin’s offense had any such mitigating fac-
tors. But, to return to the comparative treatment of Pennex, it is
to be noted that Aguilar, as well as doing essentially the same
flush-watch job as Pennex, was “in plain view of everybody,”
to use Simpson’s words, because the 8-feet by 8-feet control
room had no door, and other employees (such as Martinez and
Roppolo) used it as a break area. Also, if any other employees
received the written, effusive accolades that Aguilar had re-
ceived, as quoted above, this record does not reflect the fact.
Aguilar had received two warning notices during 1993, for not
having his tools and leaving the work place, but the cases listed
above show that other employees had as bad, or worse, records
when they were caught sleeping, and they were not discharged;
these are the above-listed comparative cases 4, 12, 15, 17, 20,
27, and 28. That is, Aguilar was also a “good” employee. Simp-
son did testify that another factor in his not discharging Pennex
was that Genter had reported to him that Pennex had been tak-
ing cold medication that made Pennex drowsy. Simpson, how-
ever, did not state on Pennex’s ASI-22 form that Pennex’s tak-
ing of medication was a factor in his not imposing a discharge,
and this self-serving testimony is highly suspect; moreover,
Respondent would hardly contend that employees who take
cold medication somehow have more of a license to sleep than

treatment cases cannot apply to it. Respondent would therefore contend
that Fedrick’s testimony can stand only for what Fedrick, himself, did.
Fedrick, however, did not operate in a vacuum; he presumably followed
the policies of Respondent. Moreover, the discretionary nature of the
enforcement of Respondent’s no-sleeping policy was made clear by
Simpson’s treatment of Pennex and Griffin.
325 Fedrick, as well, testified that, if employees are caught sleeping,
pipe department supervisors would take into consideration whether they
had otherwise been “good” employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1274
other employees. Finally, in none of the above-listed cases in
which other employees were punished only with warning no-
tices, or suspensions, was there any indication that discharges
were not imposed because the employees were taking medica-
tion. I cannot, therefore, accept as a controlling distinction, or
any distinction, that Pennex was a “good” employee, or that
Pennex was not hiding, or the fact that it was reported to Simp-
son that Pennex had been taking a cold medication.
In summary, the significant number of documented cases
listed above, the treatment of Pennex and Griffin by Respon-
dent’s production vice president, Simpson, the indulgence that
Poche showed the admittedly sleeping (but then antiunion)
Lockett, and the admissions of Bourg, Fedrick and Knoblock
all show that Respondent simply does not consider sleeping to
be an immediately discharge able offense, no matter what the
Avondale Employees’ Guide says. At best, then, Respondent
has shown that it could have discharged Aguilar for sleeping,
but it has not shown under Wright Line that it would have dis-
charged Aguilar for sleeping even in the absence of his known
protected activities. I accordingly conclude that Respondent
discharged Aguilar in violation of Section 8(a)(3).
Respondent cites several cases on brief for consideration by
the Board in assessing the cases of Aguilar and the other al-
leged discriminatees who were accused of sleeping. The only
case that Respondent cites that involves multiple instances of
alleged disparate treatment is Mississippi Chemical Corp., 280
NLRB 413 (1986). In that case the Board found that a union
adherent was treated disparately and it concluded that he was
unlawfully discharged, just as I find that Aguilar was unlaw-
fully discharged herein. In Mississippi Chemical, the Board
relied on evidence of disparate treatment that was far less in
volume than, but identical in nature to, the evidence of dispa-
rate treatment that I rely upon here. In Mac Tools, Inc., 271
NLRB 254 (1984), a violation of Section 8(a)(3) was not found
where the alleged discriminatee had hid to catch some sleep
and the only comparative case that the General Counsel proved
was one in which an employee had dozed off. Mac Tools, of
course, is distinguishable because Aguilar did not, I find, hide
to catch some sleep, and Mac Tools is also distinguishable on
the basis of the large numbers of other employees whom the
General Counsel has proved in this case to have been allowed
to sleep without being discharged. In Caterpillar Tractor Co.,
257 NLRB 392 (1981), a discharge of a union adherent was
held nonviolative where he fell asleep in a place visible to the
public and the only comparative case that the General Counsel
proved occurred outside the view of the public. The Board held
that the case of the nondischarged employee was not probative
evidence of disparate treatment because the respondent showed
that it was “uncompromising” in its public image. Again, by
number and by nature of the comparative offenses involved,
Caterpillar is easily distinguishable from the cases of Aguilar
and all other alleged discriminatees who are herein found to
have been sleeping. (In the remainder of the cases cited by
Respondent, disparate treatment is either not mentioned as an
issue, or it is found affirmatively not to exist.)
b. Andre Duhon’s discharge for sleeping in a ship’s hold
Andre Duhon (vol. 52) was a mechanic’s helper in the ma-
chinery department until he was discharged on June 8, 1994.
The fourth complaint, at paragraph 38, alleges that by discharg-
ing Duhon Respondent violated Section 8(a)(3). The General
Counsel contends that Respondent discharged Duhon because
of his known union activities and expressions of sympathy
which consisted of his wearing prounion insignia and distribut-
ing union T-shirts in the presence of a supervisor. The General
Counsel further contends that specific animus against Duhon’s
union activities has been demonstrated by a supervisor’s state-
ment to Duhon that he would be denied a transfer because of
his union activities. Respondent did not call the supervisor to
deny this statement, and Respondent does not deny that its su-
pervisors knew of the prounion sympathies of Duhon at the
time of his discharge. Respondent answers, however, that Du-
hon was discharged solely because he was found sleeping dur-
ing working time, an express ground for immediate discharge
under the Avondale Employees’ Guide. The General Counsel
replies that the sleeping defense is a pretext because Duhon was
not sleeping at the time in question. Alternatively, the General
Counsel contends that, even if the Board finds that Duhon had
been sleeping, it must nevertheless hold that Duhon was treated
disparately, because other employees were found sleeping on
duty but they received lesser, or no, discipline. Ultimately, I
find and conclude that Duhon was sleeping on working time
and that he had intended to do so; Duhon did not innocently
doze off as did almost all of the employees whom the General
Counsel presents as comparative cases. I therefore conclude
that Duhon’s discharge for sleeping did not violate Section
8(a)(3).
Duhon worked under the direct supervision of Foreman Dale
Daunie and, sometimes, Foreman John Porrazzo. Duhon testi-
fied that beginning about 2 months before the June 25, 1993,
Board election he began wearing an International Association
of Machinists sticker on his hardhat as he worked. About 2
weeks before the election he also began wearing two “Union-
Yes” stickers on his hardhat. All of the stickers remained on his
hardhat through the date of his discharge. Duhon further testi-
fied that he wore one union button on the strap of his hardhat,
and that he had another union button on a cap that he wore
when walking to and from the areas in which he was required
to wear a hardhat. Duhon wore a union T-shirt to work, “[j]ust
about every day,” and he wore the T-shirt on May 6, 1994,
when he, along with other union adherents, attended Respon-
dent’s annual shareholders’ meeting. Finally, Duhon credibly
testified that on May 6, before work, in an outside machine
shop office, in the presence of Daunie, he gave another em-
ployee a union T-shirt to wear to the shareholder’s meeting.
Duhon testified that shortly after the Board election he was
transferred from second shift to first shift. While working on
the first shift, Duhon saw second-shift foreman, and admitted
supervisor, Jesus Ramell. Duhon asked if he could be trans-
ferred back to the second shift. According to Duhon:

[Ramell] said he would bring me back to the night shift be-
cause I was a pretty good worker, but I talked too much “un-
ion shit.” If I would stop talking union, he would bring me
back to the night shift.

Ramell did not testify, and I found Duhon credible in this tes-
timony.
Duhon testified that on June 8, 1994, Daunie assigned him to
work with mechanic Usi Lyons. Their job was to go to a hold
on the very bottom of a ship under construction and work on a
valve’s connections to a “reach-rod” (by which the valve could
be controlled from a deck above the hold). The hold in which
Lyons and Duhon were to work was about 6 to 8 feet deep and
6 feet square. Access to the hold was through a manhole that
AVONDALE INDUSTRIES

1275
was about 30 inches in diameter. A ladder descended into the
hold. Just above the bottom “V” of the ship was a “catwalk,” or
a metal grate that covered pipes that ran along the bottom. The
catwalk was elevated enough for one to sit on. Also present in
the hold were two painters whom no witness could identify by
name or specific job. (The painters were there, possibly, to
wrap pipes that ran through the hold; but the circumstances of
Duhon’s discharge, as I describe them below, also indicate the
real possibility that the painters were in that remote area of the
ship to get some sleep without detection by management.)
Duhon testified that at one point during the morning, Lyons
was at the valve, and he and the painters were sitting on the
catwalk. Duhon was handing tools to Lyons as Lyons needed
them. According to Duhon:

The little painter, he jumped up and he hit me on the
leg and told me that my boss was upstairs.
I told him, “So?” . . .
I looked up and I didn’t see no one. . . .
We [Lyons and I] finished up the [one stage of the
work], then we went up out of the hold.

(Duhon was not asked why the painter would have jumped up; I
find that it was because the painter had been asleep, as Lyons
later testified.) Duhon was asked why he and Lyons had come
out of the hold when they did. Duhon answered: “Because we
were going to go finish up the brackets for the actuator. Make
up the brackets.” (Just what is involved in making up brackets
for actuators is not important here.)
Duhon testified that, when he and Lyons emerged through
the manhole, they saw Gerald Dumas, a pipe-tester, who said
that Porrazzo was looking for Duhon. Lyons and Duhon went
to the office were they met Porrazzo and Daunie. Further
according to Duhon:

I asked John was he looking for me. He said no. I
asked him, “Well, why was you looking down in the hold
on me?”
He said because I was sleeping.
I told him, “No, I wasn’t.”
He said, “Want to bet? I have a witness.”
I said, “I don’t care who you have.” And then I asked
him, “Who is your witness?”
He said, “Dale [Daunie].”
And Dale just looked up and said, “Yes. You were
sleeping.”
I didn’t say anything. We just went on out of the of-
fice.

Further according to Duhon, some time later in the morning,
Porrazzo returned to the work area and told Duhon to come
with him back to the office. Duhon and Porrazzo were joined in
the office by Daunie and Jake Kaul, superintendent of the ma-
chinery department. According to Duhon:

Jake Kaul did all the speaking. John and Dale didn’t
say anything. He said, “I agree that sleeping was a major
offense.” He could show it to me in the book [the Avon-
dale Employees’ Guide]. And he said that it constitutes an
automatic termination and, therefore, my services are no
longer needed at Avondale.
I told him I wasn’t going to argue with you all.

Duhon testified that as he walked back to the work area to col-
lect his personally owned tools and:

John [Porrazzo] came up behind me and he said, “Hey,
buddy. I don’t want to fire anybody, but [Ships’ Superin-
tendent] Buddy Roberts came and got me and showed me
that you were sleeping in the hold.” And [Porazzo said
that] before he could do anything, the word had got all the
way up to [Vice President] Ken Genter, and so he had to
do what he had to do . . . [because] Buddy wanted some-
thing done about it. . . .
I told John that I wasn’t worried about it because I had
told Dale a couple of weeks ago, before this incident, that I
was going to quit anyway soon as I found another job.

Duhon then left the premises.
On cross-examination, Duhon was asked, and he testified:

Q. Now, on that day you testified that the painter
reached over and shook your leg . . . [a]nd he told you that
your supervisor, Mr. Porrazzo, was looking down the hold.
. . . Do you know why he reached over and shook you
rather than just told you that?
THE WITNESS: No, sir. Because he—well, I don’t know
because I know I was handing [Lyons] wrenches, and that
is when he [the painter] hit me, when he jumped up.

Lyons, a current employee, testified (vol. 54) that it was one
of the painters, not Duhon, who fell asleep. Lyons testified that
Duhon was seated on the catwalk; he was to Duhon’s left; and
Duhon was handing him tools, or taking back tools, every 2 to
4 minutes. A painter (Robert) sat on the catwalk to Duhon’s
right. Lyons and Robert were engaged in conversation when
Robert dozed off. Lyons was asked, and he testified:

Q. [By Mr. Bensinger]: And after the painter dozed
off, what, if anything, did you observe then?
A. Well, at that time when he dozed off, I kept right on
working and I looked. He [the painter] kind of lifted his
head up and looked up over at what is known as the man-
hole, the hatch, and he saw someone standing above there.
. . . Then at that time he hit Mr. Duhon which was next to
me. He [the painter] turned to his left and kind of shoved
him [Duhon] on the shoulder and made the statement that
our [Duhon’s and my] boss was up there. . . . Then Mr.
Duhon looked up and he didn’t see who it was because
they had—they kind of walked away from the hole, and I
told him, “Let’s go see what they wanted.”
Q. Now, when you said “they walked,” why did you
use the word “they”?
A. Well, I used the term they because we have two
bosses and I didn’t know which one that the painter was
talking about over the hole, so I figured that “they” would
have covered one or the other.

Lyons testified that when he and Duhon climbed out of the
hold, pipe-tester Dumas told them that Porrazzo wanted to see
“us,” so: “Andre and I went to the office to see what they [sic]
had wanted.” (Lyons did not testify that Dumas had told him
that a supervisor, in addition to Porrazzo, had been inquiring
about him or Duhon.) Lyons and Duhon found Porrazzo and
Daunie in the office. Lyons was further asked and he testified:

Q. And what, if anything, was said?
A. We asked them the question what did they want,
and John Porrazzo answered and said that we don’t want
nothing but we caught you sleeping—speaking to Andre.
Q. And what, if any, response did Duhon make?
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1276
A. Duhon told him, “I was not sleeping, Boss. . . . I
was looking down, but I was not sleeping.”

(Of course, this testimony conflicts with Duhon’s testimony
that “I didn’t say anything.”) On cross-examination Lyons ac-
knowledged that, when he, Duhon, Porrazzo, and Daunie were
in the office, he did not say anything.
Current employee Dumas (vol. 58) testified that, on the day
of Duhon’s discharge, he first saw Porrazzo, and then he saw
Lyons and told Lyons that Porrazzo was looking for Duhon
(not Duhon and Lyons, as Lyons testified). Dumas testified that
he could not recall if anyone (such as Duhon) was with Lyons
when he told Lyons that Porrazzo was looking for Duhon. Du-
mas placed his exchanges with Porrazzo and Lyons at just be-
fore or after noon. All other witnesses place the incident at just
after 9:30 a.m.
Duhon’s Discharge—Respondent’s Evidence
Porrazzo (vols. 51, 87) and Daunie (vols. 51, 85) testified
that they were supervising the same employees on June 8 be-
cause Porrazzo was preparing to take over Daunie’s crew a few
days thereafter when Daunie was scheduled for surgery. Por-
razzo testified that, when he made rounds of the jobs under his
and Daunie’s supervision that day, he looked into the hold to
which Duhon and Lyons were assigned.326 Porrazzo testified
that he saw Duhon sitting on the catwalk, leaning back against
a bulkhead, head up and rolling side-to-side, then forward and
to one side. Porrazzo could see the leg and shoulder, but not the
face, of another employee (the painter) who was sitting beside
Duhon, and Porrazzo could not identify that employee; Por-
razzo did not see Lyons at the time. Porrazzo left the deck and
went to the office. There he told Daunie to come and see that
Duhon was sleeping. The foremen returned and looked into the
hold. Porrazzo testified that when the foremen arrive back at
the hold, Duhon was: “Rolling his head around, eyes were
closed, same as when I left.”
Porrazzo testified that, after he and Daunie observed Duhon
like that for several minutes, the painter “hit” Duhon on the leg.
Then Duhon jumped up and Porrazzo motioned for Duhon to
climb the ladder out of the hold. When Duhon reached the
deck, Porrazzo told him to come to the office because Porrazzo
was going to give him a warning notice for sleeping and that he
would also be discharged. Porrazzo testified that Duhon then
denied that he had been sleeping. Porrazzo testified that he did
speak to Duhon after Kaul had discharged Duhon, but he testi-
fied that the extent of his comment involving Ship’s superin-
tendent, Buddy Roberts, was: “Andre, you know, if Mr. Buddy
Roberts would have caught you sleeping, he would have fired
you right there on the spot.”
Daunie testified that when he got to the manhole with Por-
razzo he looked down and saw the back of Duhon’s head which
appeared to be resting on his chest; he could not see Duhon’s
eyes. Daunie started down the ladder, and, when he did so, the
other employee awakened Duhon by touching Duhon on the
shoulder; then Daunie went back up the ladder, and he and
Porrazzo left the deck without saying anything to Duhon.
Machinery Department Superintendent Kaul testified (vols.
68, 69) that during the morning of June 8, Porrazzo called him
and asked Kaul to come to the office on the dock because there

326 Porrazzo first misidentified Lyons as Joe Howard (an alleged dis-
criminatee who, like Lyons and Duhon, wore prounion insignia). I find
the initial misidentification to be meaningless.
was a problem. When he got there, Porrazzo and Daunie told
him that they had found Duhon sleeping. Kaul told Porrazzo
and Daunie that he thought that sleeping was an immediate
discharge offense under the Avondale Employees’ Guide, but
he would check. (Kaul testified that he never before had the
experience of an employee sleeping on the job.) Kaul left the
dock office and returned to his office; he confirmed his belief
by checking a copy of an Avondale Employees’ Guide, but he
also went to the human resources department and spoke to
Manager of Employment Julie Bolden who also confirmed that
sleeping was an immediately discharge able offense. Kaul re-
turned to the dock office where he found Duhon, Porrazzo, and
Daunie. Kaul told Duhon that he was discharged for sleeping
on the job. Kaul further testified that Duhon did not deny to
him that he had been sleeping, and this testimony is not dis-
puted.
Duhon’s Discharge—Credibility Resolutions
and Conclusions
Respondent does not deny that Duhon wore prounion insig-
nia and was known to be a union adherent at the time of his
discharge. Also, an expression of specific knowledge and ani-
mus was proved by Ramell’s undenied statement to Duhon that,
as Duhon testified, “he would bring me back to the night shift
because I was a pretty good worker, but I talked too much ‘un-
ion shit.’ If I would stop talking union, he would bring me back
to the night shift.” I therefore conclude that the General Coun-
sel has presented a prima facie case that Duhon was discharged
unlawfully, and the burden shifts to Respondent to demonstrate
by a preponderance of the evidence that it would have taken the
same actions against Duhon even in the absence of his known
protected activities. Respondent’s defenses must therefore be
examined.
I find that Duhon was sleeping when Porrazzo, then Daunie,
found him.
Over Porrazzo’s denial (and an explanation for that denial
that made no sense), I credit Duhon’s testimony that, after he
was discharged, Porrazzo told him that Roberts had first found
him sleeping and the matter had gone all the way to Vice Presi-
dent Genter. Nevertheless, Porrazzo also told Duhon that Rob-
erts had “showed me that you were sleeping in the hold.” Du-
hon, however, did not testify that he told Porrazzo that Roberts
could not have showed him that he was “sleeping in the hold”
because he was not sleeping in the hold. Instead, as Duhon
testified, he replied to Porrazzo that he was not worried because
he was going to quit anyway. If there had been any truth in
Duhon’s testimony that he had not been sleeping, he would not
have given that reply to Porrazzo.327 Also, if Duhon had been
innocent of sleeping, he would have so stated to Kaul as Kaul
began quoting the Avondale Employees’ Guide to him; instead,
as Duhon admitted, he simply stated that he was not going to
argue. I do not, however, rest my finding that Duhon had been
sleeping only on these tacit admissions by Duhon.
Porrazzo made two trips to the manhole on June 8. The first
time, he was alone (or possibly Roberts was with him, as Por-
razzo’s postdischarge statement to Duhon would indicate); the
second time, Daunie was with him. Lyons testified that, after
the painter shook Duhon and Duhon got up from the catwalk,
“they kind of walked away from the hole.” Lyons could not

327 Just as easily, for example, Duhon could have replied to Porrazzo,
“What do you mean? Roberts could not have showed you where I was
sleeping because I was not sleeping.”
AVONDALE INDUSTRIES

1277
intelligibly explain why he referred to “they”; it is obvious that
Duhon emerged from the hole first and saw Porrazzo and
Daunie walking away, and he reported that observation to Ly-
ons. Duhon and Lyons could not agree on why they thereafter
left the hold; Duhon testified it was to get parts for the actua-
tors; Lyons testified it was to see what “they” wanted. Lyons
and Duhon knew perfectly well that the supervisors had seen
Duhon sleeping. Supervisors make regular tours of the work in
progress; there is no reason why Duhon and Lyons would have
gone up to the deck to see what “they” wanted, unless Duhon
and Lyons thought they had something to explain. (Certainly,
when Duhon and Lyons got to the office at the dock, there was
no reason for Duhon to have demanded of Porrazzo an explana-
tion of “Well, why was you looking down in the hold on me?”)
Duhon testified that he and Lyons went to the dock office be-
cause, when they came out of the hold, Dumas had told them
that Porrazzo was looking for Duhon. Lyons, however, testified
that they went to the dock office because Dumas had told them
that Porrazzo was looking for “us.” Dumas was called to cor-
roborate one, or somehow both, of these testimonies. Dumas
testified that he told Lyons (only) that Porrazzo was looking for
Duhon. Dumas was incredible; as well as conflicting with both
Lyons and Duhon about who he spoke to (Lyons, as opposed to
Lyons and Duhon), Dumas conflicted with all witnesses about
the time of the event (noon, as opposed to 9:30 a.m.). More-
over, Dumas rendered himself plainly incredible when he testi-
fied that he told Lyons that Porrazzo was looking for Duhon,
but he could not remember if Duhon was with Lyons at the
time.
Also, I found to be completely incredible Lyons’ testimony
that Duhon told Porrazzo and Daunie in the dock office, “I was
not sleeping, Boss. . . . I was looking down, but I was not sleep-
ing.” If Duhon had advanced such an argument, he presumably
would have so testified. The most that Lyons’ testimony on this
point is good for is an admission that Duhon had his head
slumped on his chest, as Daunie described.
The General Counsel argues that, because of certain seeming
inconsistencies in his testimony, Daunie could not have seen
Duhon sleeping. The General Counsel’s arguments ignore the
fact that both Duhon and Lyons testified that Porrazzo and
Daunie told them immediately that both of them had seen Du-
hon sleeping. (As Lyons put it, “ We asked them the question
what did they want, and John Porrazzo answered and said that
we don’t want nothing but we caught you sleeping—speaking
to Andre.” (Again, Lyons lapsed into the plural, revealing that
the supervisors jointly accused Duhon of sleeping.) I recognize
that Porrazzo embellished by saying that he could see Duhon’s
eyes on both visits to the manhole, and, on his second trip to the
manhole (with Daunie), he told Duhon that he was getting a
warning notice, neither of which happened. (If either had hap-
pened, Porrazzo would have been corroborated by Daunie.)
Nevertheless, the testimonies of Duhon and Lyons, aside from
their conclusionary denials that Duhon was sleeping, are con-
sistent with the actions of employees, at least one of whom was
sleeping. (For reasons that I state below in discussing the Gen-
eral Counsel’s alternative theory of a violation in Duhon’s case,
I believe that Lyons, as well as the painter(s) and Duhon, was
also sleeping when Porrazzo, then Porrazzo and Daunie, came
to the manhole.)
Duhon could not explain why the painter would have
touched him, rather than just saying something in those close
quarters, when Porrazzo and Daunie appeared at the manhole.
Just as Whittington shook alleged discriminatee Jose Aguilar to
wake him up, the painter shook Duhon to wake him up; there is
no other reason for the painter to have touched Duhon, no mat-
ter whether it was on the leg or the shoulder (and it could pos-
sibly have been both). I find that Duhon was sleeping during
both supervisory visits to the hold. Therefore, I reject the Gen-
eral Counsel’s principal theory that the reason assigned for
Duhon’s discharge was a pretext because Duhon was not sleep-
ing on the job.
As an alternative theory of a violation, the General Counsel
argues that Duhon did no more than doze off as he was work-
ing, and the General Counsel contends that the evidence devel-
oped in the case of alleged discriminatee Aguilar demonstrates
that Duhon was discharged disparately, and unlawfully. I dis-
agree. Porrazzo and Daunie did testify that Duhon was where
he had been assigned to work when they discovered him. Du-
hon’s case, however, is still not in the posture of the cases of
employees whom Respondent did not discharge when they had
dozed off while they had nothing else to do. Unlike Aguilar,
who had nothing to do because of the unusual event of the
power shutdown, Duhon had work to do; he just was not doing
it.
Duhon was sitting, but he also was supposed to be handing
tools to Lyons and doing other things to assist Lyons. Four men
were in that very small, remote, hold, and none could have
gone to sleep without the complicity of all of the others. Duhon
took advantage of the situation to get some sleep. Lyons testi-
fied that the painter had gone to sleep; and Lyons thereby ac-
knowledged that he did not wake the painter up. Lyons neces-
sarily had allowed Duhon also to go to sleep, unless, of course,
Lyons had gone to sleep first. That is, when the supervisors
appeared at the manhole, either Lyons did not wake Duhon
from sleep because Lyons was asleep,328 or Duhon could not
wake Lyons from sleep because Duhon was asleep, himself. In
either event, the supervisors could not see Lyons, or the sleep-
ing painter(s), but they could see Duhon who was directly be-
neath the manhole. When they saw him, the supervisors knew
that Duhon was supposed to have been doing work, handing
tools to Lyons; Duhon could not have just dozed off while wait-
ing until his services were needed. The supervisors could logi-
cally have concluded, and I find they did logically conclude,
that Duhon was doing what he intended to do, sleep. I find that
Duhon was discharged for precisely that reason.
Almost none of the comparative sleeping employees who are
listed and discussed in Aguilar’s case involved employees who
might have intended to fall asleep. That is, the General Counsel
has not shown by documentary or parol evidence that a signifi-
cant number of employees have gone with lesser punishment
when they were found in circumstances that would indicate that
they had intended to sleep on working time. Therefore, I find
and conclude that Respondent has proved that it would have
discharged Duhon, even absent his union activities, and I shall
recommend dismissal of this allegation of the complaint.
c. William Smith’s discharge for sleeping on fire-watch duty
William Smith (vols. 13, 158) was a fire watchman in the
maintenance department until he was discharged on February 4,

328 If Lyons was also sleeping, it would certainly explain why he, as
well as Duhon, went to the dock office. (It was not because, as Lyons
falsely testified, Dumas told him that Porrazzo had been looking for
“us.”) Lyons’ sleeping would also explain why he said nothing while
Porrazzo and Daunie were accusing Duhon of sleeping.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1278
1994. The second complaint, at paragraph 139, alleges that by
discharging Smith Respondent violated Section 8(a)(3). The
General Counsel contends that Respondent discharged Smith
because of his known union activities and expressions of sym-
pathy which included his wearing prounion insignia, his speak-
ing on behalf of the Union directly to supervisors (one of whom
was Respondent’s vice president for production, Michael Simp-
son), and his testifying on behalf of the Union at the hearing on
objections and challenges relating to the June 25 Board elec-
tion. Respondent does not deny that its supervisors had knowl-
edge of Smith’s prounion sympathies at the time of his dis-
charge. Respondent answers, however, that Smith was dis-
charged solely because he was found sleeping during working
time, a ground for immediate discharge under both the Avon-
dale Employees’ Guide and the rules of its fire department (as
the fire-watch and fire-fighting functions of the maintenance
department were called). The General Counsel replies that the
sleeping defense is a pretext because Smith was not sleeping at
the time in question. Alternatively, the General Counsel replies
that, even if the Board finds that he had been sleeping, it must
nevertheless hold that Smith was treated disparately because
other employees were found sleeping on duty and they received
lesser, or no, discipline. Ultimately, I find that Smith was sleep-
ing during working time, but Smith was treated disparately
because, as its supervisors knew, just the night before Smith
slept on the job, an antiunion fire watchman fell asleep, in cir-
cumstances identical to those of Smith’s, but that other fire
watchman was not discharged; I therefore conclude that Smith
was discharged in violation of Section 8(a)(3).
Smith testified that his immediate supervisor was Jimmy
Christian. The complaint does not allege that Christian is a
supervisor within Section 2(11) of the Act. Christian, who was
called by the General Counsel, testified (vols. 48, 49) that he
was classified as “a night shift supervisor, acting supervisor, or
inspector, however they may want to refer to it of [sic] the night
shift in the fire department. . . . I have two operators, and I have
seven men that works on the ships.” Those men on the ships are
fire watchmen such as Smith. Christian reports directly to Re-
spondent’s chief fire inspector, admitted supervisor James Ju-
not. Junot reports to Fire Chief Stayton (Stan) Oliver; Oliver
reports to Maintenance Department Superintendent Brian Mar-
cel.
Smith testified that beginning in May 1993, and continuing
through his termination, he wore a union pin and “Union-Yes”
stickers on his hardhat. Sometime in May, Oliver and Marcel
conducted an employer campaign meeting that Smith attended.
According to Smith, at the end of the meeting Marcel asked the
employees in attendance if any had questions. Smith testified:
“I raised my hand . . . [and] I asked Brian at this particular
meeting how come they always are saying that the Union will
cause you to strike when they could do so much more for the
Company. And of course, that was never answered.” Neither
Marcel nor Oliver denied this testimony, and I found it credi-
ble. Smith further testified that about June 1 he went to Simp-
son’s office to complain about some perceived mistreatment by
Oliver. When he completed that complaint, according to Smith,
Simpson asked him how he felt about the Union; Smith testi-
fied that he told Simpson, in a short speech, that he favored the
Union. Simpson (vol. 139) denied this occurrence, and I found
Simpson credible in his denial. On December 9, 1993, Smith
testified as a witness for the Union at the Board hearing on
objections and challenges concerning the Board election. Fi-
nally, Christian testified that he had heard talk around the yard
that, if the Union were to succeed in the organizational effort,
Smith would make a good steward.
Smith’s Discharge
To facilitate review of the somewhat complex chronology
leading to Smith’s discharge, I here summarize the sequence of
events as I ultimately find them below: On the night of Febru-
ary 2–3, 1994, Electrical Department General Foreman Mark
Poche found fire watchman Willie Rachel, an antiunion em-
ployee, sleeping on duty on LSD-50. Poche reported this to Fire
Chief Oliver during the day on February 3. Oliver then ordered
Senior Fire Inspector Junot to make an inspection round of the
ships during the night of February 3–4 to check for other sleep-
ing watchmen. Junot conducted such a round about 5 a.m. on
February 4; Christian accompanied Junot. When Junot and
Christian got to LSD-50, Poche joined them. Then Poche, Junot
and Christian found Smith sleeping at the very place that Poche
had found Rachel sleeping on the night of February 2–3. Smith
was discharged; Rachel received no discipline. The bases for
these findings are as follows:
It is undisputed that Willie Rachel is an antiunion employee,
and Oliver knew it; as Christian was asked, and he testified:

Q. Did you ever hear Willie Rachel say anything about
the Union to Stan Oliver?
A. On several occasions, I have heard Willie come in
and make one particular remark. I definitely remember he
stated, “Any first class employee that voted for the Union
was a damn fool.” Now, I remember that specifically.

Oliver did not deny that Rachel made such statements in his
presence. It is further undisputed that Rachel worked as the fire
watchman on LSD-50, a ship under construction on the land,
the night before Smith was caught sleeping on that ship.329
Smith was assigned to serve as a fire watchman on LSD-50
on a shift that began at 11 p.m., February 3. Smith had never
before worked on LSD-50. As well as walking about the ship,
checking for fire and fire hazards, ships’ fire watchmen have
certain paperwork duties. Each ship under construction has a
casualty control center where such paperwork duties are per-
formed. Usually, the casualty control centers are rooms on a
ship, or they are box-car-type containers that have been hoisted
to a deck. The fire regulations of the Company permit closing
the doors to the casualty control centers, but the regulations
expressly prohibit locking the doors from the inside. In the
usual cases, the doors to the casualty control centers can be
secured from the inside without locking such doors against
anyone who wants to enter from the outside. The casualty con-
trol center on LSD-50 was not of the usual construction; it was
an alcove that was formed by three bulkheads (walls) with a
plywood facing for the fourth side. The door to the casualty
control center, which was located within the plywood facing,
opened to the outside; it could be secured from the inside only
by use of a wooden bar that pivoted on a bolt that ran through
the door. There was a handle on the outside of the door, but that
handle was not connected to the wooden bar on the inside of
the door, and there was nothing by which the bolt-head on the
outside, and the wooden bar on the inside, could be turned.
Therefore, when the bar was in place, the door could not be

329 Different witnesses assigned different numbers or types to the
ship in question; which witness was correct is not important; Rachel
and Smith worked the same ship on successive nights.
AVONDALE INDUSTRIES

1279
opened from the outside without use of a wrench or channel-
locks (large pliers) to rotate the bolt and bar. The door to the
casualty control center on LSD-50 had a Plexiglas window that
was about a foot square.
Smith testified, without contradiction, that the night of Feb-
ruary 2–3 was windy and very cold. To keep the door to the
casualty control center from being blown open, Smith put the
wooden bar in place; this action, as described above, made it
impossible for others to enter the room without use of a wrench
or channel-locks.330 According to Smith, about 5:15 a.m., when
he had finished his paperwork in the casualty control center:

I packed myself up. I was through with my tasks with
the exception of going to Safety to drop off the copies that
I was supposed to drop off there. I packed my stuff up to
get prepared to do this for 6:00 and I was listening to my
jazz—I am a jazz fan; I listen to jazz all night long—and
at that time I had taken an opportunity to say my normal
morning prayer. . . .
About 5:25, Mark Poche, Jim Junot and Jimmy Chris-
tian came in. . . . I was sitting in the corner in the position,
hands folded, just looking down, but my eyes were not
closed when they came in. . . . My body was still in that
same position at the time they came in, but I wasn’t sleep-
ing.

. . . .

[A]nd I looked up and I said, “Hey, what’s up, guys?”
Mark Poche then asked me if I enjoyed my sleep, and I
told him I wasn’t sleeping. And then he called me a liar,
and I told him, “You are another liar.” He then said that
they had been outside for 25 minutes trying to get in be-
cause I had the door locked, and I told him that he was—
the door wasn’t locked—no, I told him, I said there was no
way I could have been asleep for no 25 minutes because,
during that time, I talked to [fellow employees] Carl and
Lou [on the telephone]. And I said, “Besides, I don’t work
for you; what are you doing coming in here trying to catch
me sleeping?”
At that point Junot, the senior fire inspector, said, “Get
your stuff together and we are going to go to the fire
house.”

I would find from Smith’s testimony, alone, that he was sleep-
ing when Junot, Poche, and Christian entered the casualty con-
trol center; moreover, the conclusion that Smith was sleeping is
fully supported by credible testimony by Christian, Poche, and
Junot, as described below.
Christian testified that Junot had arrived about 5 a.m. on
February 4 and told Christian that he was there to conduct a
round of checking for sleeping watchmen, and Junot told Chris-
tian to accompany him. When Junot and Christian got to the
casualty control center of LSD-50, they could look through the
Plexiglas window and see the lower-half of Smith’s body as
Smith sat in a chair with his hands folded in his lap. (They had
only this limited view because the chair in which Smith was
sitting was backed against the wall in which the doorway was

330 No witness testified that Smith’s method of securing the door
contributed to his discharge. Also, as noted, Respondent’s design of the
casualty control center permitted no other way to secure the door
against the elements; and this is the way that Rachel secured the door
the night before Smith was discharged, according to Respondent’s
witness Poche.
cut, and there was a beam between the door and Smith.) Smith
sat perfectly still for so long that Christian and Junot thought
that Smith was asleep. Christian and Junot wished to get into
the casualty control center without awakening Smith and ob-
serve his eyes so that there would be no question that he was
sleeping as well as sitting perfectly still. Junot told Christian to
go and find any supervisor who could help them to open the
door to the casualty control center.
Christian found Poche and began telling Poche about Ju-
not’s, and his, suspicions about the night watchman’s being
asleep. According to the credible testimony of Christian, which
Poche did not deny, Poche became angry because, as he told
Christian, he (Poche) had caught the watchman sleeping the
night before, as well. Christian testified:

He [Poche] said, “That damn son-of-a-bitch is sleeping
again. I am going to fire his ass. I came up here yesterday
morning. I got off the elevator, and I almost fell because
the deck was icy. I thought the man should be out here, in-
forming workers that was getting off the elevator to be
very careful; they could fall and get hurt.”
And he said, “That sorry son-of-a-bitch was in there
sleeping. I shook him and shook him, and I couldn’t
hardly wake him up. I finally woke the man up. I told him,
‘Get your damn ass out there and instruct people to be
careful; you shouldn’t be here in the first place.’ And he
[the watchman who had been sleeping the night before]
went on out [to do what Poche had told him to do].”
I said [to Poche], “Well, wait a minute; wait a minute.
The person we are checking on today is William Smith.
The man you are speaking of, Willie Rachel, that was his
last day on [duty on LSD-50]. The man [Rachel] is not
here tonight. It is a different man.
Well, as I recall, I told him [Poche], “Willie [Rachel]
is not on [duty]; this is William Smith[‘s and] our [crew’s]
first night back [on duty, after alternating days off]. He
[Smith] works for me.”
He [Poche] said, “Oh, I am sorry.” He said, “What is
the problem?”

Poche (vol. 77) testified that he did confront Rachel in the
casualty control center on the night of February 2–3, but Rachel
was awake (when Rachel “finally” opened the door). I find,
however, that Poche did, in fact, find Rachel sleeping in the
casualty control center of LSD-50 on the night of February 2–3;
Poche would not have made such an admission to Christian
unless it was true.)
Christian finished explaining “the problem” to Poche (i.e.,
that he and Junot could not open the door to casualty control
where Smith was sleeping). Poche and Christian agreed to go
separately to the casualty control center. On his way, Poche
picked up a pair of channel-locks with which he could open the
door. Poche then went to the casualty control center and met
Christian and Junot. Poche turned the bolt-head (which, as de-
scribed, moved the wooden bar on the inside of the casualty
control center) and pulled open the door. Poche entered the
room first; Poche was followed by Junot, then Christian. Chris-
tian did not dispute that Smith protested that he had not been
sleeping, but he did credibly add:

I saw Mr. Smith. He was sitting in an upright position
with his head kind of back, and he was fluttering his eyes
and attempting to try to focus. . . . Then when I got there, I
didn’t say anything. I stood there, and Mr. Smith stood up.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1280
And he said, “I was not sleeping. I was only resting my
eyes. And if you don’t believe me, call Lou at Safety.”

Poche testified that Smith admitted that he had “dozed off”;
Junot, who had entered the room behind Poche, testified that
Smith stated that he could not have been sleeping “very long”
because he had just telephoned another employee. I credit
Christian and Smith over both Poche and Junot about what
Smith said when he was awakened. It is clear to me that Smith
did not then admit sleeping, and he included the reference to
the telephone call to another employee (“Lou at Safety”) as an
argument that he had not been sleeping at all, not that he was
sleeping only a short time. Moreover, Junot omitted the “dozed
off” admission by Smith from his testimony; even though he
entered the room after Poche, Junot would have heard any such
admission because Poche testified that he stood before the
sleeping Smith and waited a few seconds before speaking to
Smith and waking him up; this would have given Junot ample
time to have gotten into position to hear Smith’s admission if it
had then been made.
Junot and Christian took Smith to Respondent’s fire station
(or “fire house”). When Oliver arrived for the day, Junot went
into Oliver’s office while Smith and Christian waited outside.
According to the credible testimonies of Smith and Christian,
while Smith and Christian were waiting for Oliver and Junot to
come out of Oliver’s office, Christian told Smith about the
references that Poche had made about finding Rachel asleep
during the night of February 2–3.
Oliver and Junot came out of Oliver’s office; then Oliver,
Junot and Christian escorted Smith to the office of Maintenance
Department Superintendent Marcel (which office was in an-
other building). When the group was received into Marcel’s
office, according to Smith:

Brian Marcel asked me if I had been sleeping, and be-
fore I could answer, Jim Junot interjected and said, “We
tried to get in but the door was locked.”
And I told Brian that the door was not locked; there
was only [a] handle on the door and that was on the inside;
whoever put that door on . . . there didn’t put a handle on
the outside, and [if there were such a handle], they [the su-
pervisors] would have just been able to turn the latch and
come on in.
And I said, “Besides, this is the first time in five years
I have ever had a complaint about sleeping; where is my
warning?”
And at that time Brian said, “Well, let me talk to these
guys here for a minute.” And he told me to go back over to
the fire house.

(As noted, there was a handle on the outside of the door;
Smith’s use of the word “handle” apparently was meant to in-
clude some type of handle by which the bolt (which held the
wooden bar) could be turned, as well as a handle by which the
door could be pulled open.)
Marcell and Oliver (both in vol. 70) testified that, when
Marcell asked Smith if he had been sleeping, Smith admitted
that he was, but Smith argued that he had done so only for a
short time. Smith admitted that, in his interview with Marcell
and Oliver, he did not deny that he had been sleeping. Smith
testified, however, that he did not deny that he was sleeping
because the interruption by Junot prevented him from doing so.
If he truly had not been sleeping, Smith, who is quite articu-
late,331 would not have been so easily squelched when pleading
for his job; Smith certainly found an opportunity during the
exchanges to plead that he should only be issued a written
warning notice and not a discharge. I credit Marcel and Oliver.
I find that, in Marcel’s office, Smith admitted that he had been
sleeping.
Christian and Oliver took Smith back to the fire station.
Oliver went back into his office. Smith waited in a break area,
and Christian came in to that area. Smith testified that Christian
then stated that he had not seen Smith sleeping and that he did
not know why the other supervisors were accusing Smith of
sleeping. In fact, as Christian testified, Christian did not see
Smith sleeping; Christian was the third person to go into the
casualty control center (behind Poche and Junot), and he first
saw Smith’s eyes opened, albeit not yet focused. I do not be-
lieve, however, that Christian told Smith that he did not know
why Smith was being accused of sleeping.
Further according to Smith:

About between 7:15 and 7:30 Stan Oliver came out of
his office and informed me that Brian Marcel had called
him and told him that I was terminated.
I said, “Stan, you caught Willie Rachel dead asleep
yesterday; what are you going to do about him?”
Stan Oliver said, “Willie Rachel will probably get a
warning.”
And I said, “Willie gets a warning and I get termi-
nated? What are you going to do about me, what are you
going to do for me?”
He said, “I don’t have [anything to do] with you at all;
Brian Marcel handles anything dealing with you.”

At that point, Smith was discharged. Oliver denied telling
Smith that Rachel was going to get a warning notice, which
denial I believe. Oliver did not deny telling Smith that Marcel
made the decision to terminate Smith, and I believe that testi-
mony by Smith.
Christian credibly testified that he told Junot about the
Poche-Rachel incident at some point before Smith was dis-
charged. At trial, however, Oliver and Marcel denied any
knowledge of the Poche-Rachel incident, and they testified that
they made the decision to discharge Smith without consulting
with Junot. Because Oliver and Marcel did not consult with
Junot, Respondent argues, those decision makers could not
have known about the Poche-Rachel incident before Smith was
discharged.
I find that Oliver and Marcel knew of the Poche-Rachel inci-
dent before Smith was discharged for the following reasons:
Poche admitted that on February 3 he called Oliver to say that
he had experienced trouble getting into the casualty control
center during the night of February 2–3, but Poche denied that
he then told Oliver that he had found Rachel sleeping there.
Poche’s denial was incredible; he angrily told Christian that he
had to shake Rachel to wake him up, and it is unbelievable that
he withheld that information from Oliver (whom Poche had
taken the trouble to call, and who had more authority than
Christian to do something about a sleeping fire watchman as
well as the authority to do something about the casualty control
door that could not be opened from the outside, contrary to the
Respondent’s internal fire-prevention regulations). Junot testi-

331 For example, Smith’s testimony about his purported short speech
to Simpson flowed quite freely.
AVONDALE INDUSTRIES

1281
fied that he only performed night-checks of the fire watchmen
when ordered to do so by Oliver but he did not remember when
Oliver ordered the inspection round of February 3–4. Oliver
testified that he did not remember “specifically” if he ordered
the inspection round because of a report that he had received
about some sleeping employee. It was, and is, obvious to me
that Poche, Junot, and Oliver were inconsistent, vague and
forgetful because they wanted to avoid admitting that Poche’s
discovery of Rachel’s sleeping had occurred, as it did, and that
Oliver knew about it even before Smith was found sleeping. I
find that on February 3 Poche told Oliver about finding Rachel
sleeping on the night of February 2–3. Also, I do not believe
that Junot failed to tell Oliver and Marcel about the Poche-
Rachel incident before Smith was discharged; Junot was in on
every part of the investigation of Smith’s conduct, in Oliver’s
and Marcel’s offices as well as on the ship, even if he was not
one of the actual decisionmakers. In summary, Marcel and
Oliver knew about the Poche-Rachel incident before they made
the decision to discharge Smith.
As Christian credibly testified, Rachel was openly antiunion.
As noted, the General Counsel relies, in part, on the treatment
of Rachel as evidence of disparate treatment toward Smith.
Oliver testified that all employees who are proved to be
sleeping are terminated, but the fire department requires two
witnesses before it makes a determination that an employee has
been sleeping. As noted in the case of discriminatee Aguilar,
however, Respondent’s production vice president, Michael
Simpson, testified, without qualification, that Respondent does
not require two witnesses before an employee is discharged for
sleeping. Moreover, the Poche-Rachel incident proves that the
two-witness policy is not rigid, at least when it comes to anti-
union employees. There is no direct evidence that a second
person was with Poche when he found Rachel sleeping on the
night of February 2–3; and, in fact, Poche denied that there was
any person with him when he approached the casualty control
center that night. There must have been such a person with
Poche, however, or Oliver and Junot would not have been so
evasive about what they knew of the Poche-Rachel incident,
and Poche would not have lied by swearing, as he did, that he
had not found Rachel asleep. If Poche, by himself, had found
Rachel sleeping, Poche, Oliver, Junot, and Marcel would have
said something like: “Yes, Rachel was found by Poche, but
Poche had no other witness,” if there were a real two-witness
policy. Poche, Oliver, Junot, and Marcel, however, did not
testify that Rachel went unpunished because there was only one
witness to Rachel’s sleeping; instead, they falsely claimed that
Rachel was not found asleep, or, if he was, they had no knowl-
edge of it.
Smith’s Discharge—Conclusions
Respondent does not deny that Smith wore prounion insig-
nia, spoke up for the Union at an employer campaign meeting
that was conducted by Oliver and Marcell, and testified for the
Union in the representation case. Respondent’s animus toward
those employees who favored the Union, and especially toward
those who wore prounion insignia, is established throughout
this decision. Accordingly, I conclude that the General Counsel
has presented a prima facie case that Smith was discharged
unlawfully, and the burden shifts to Respondent to demonstrate
by a preponderance of the evidence that it would have taken the
same actions against Smith even in the absence of his known
protected activities. Respondent’s defenses must therefore be
examined.
As noted, the Avondale Employees’ Guide lists sleeping dur-
ing working time as the second of its immediate discharge of-
fenses; that is, Respondent’s written rule is that sleeping is an
offense outside the progressive disciplinary system, and em-
ployees will be discharged on the first offense. As discussed in
the case of discriminatee Aguilar, however, I have found that
the General Counsel has showed that a significant number of
employees were not discharged for sleeping. Almost all of
those employees who were not discharged for sleeping dozed
off while they were waiting for their labors to be utilized by
supervision. The General Counsel argues on brief that Smith
had nothing to do at the time that he was sleeping and that he
simply dozed off, just as most all of the comparative employees
did. Unlike the comparative employees discussed in Aguilar’s
case, however, Smith did have something to do; at the time that
he was caught sleeping, Smith should have been looking
around for possible fires. That is what fire watchmen are for.
Not every business has fire watchmen; Respondent would pre-
sumably not have many fire watchmen if fire were not a great,
possibly lethal, peril. Because of the very nature of Smith’s job,
I would not, therefore, consider as evidence of disparate treat-
ment Respondent’s treatment of any employees other than fire
watchmen.
But there is a fire watchman’s case to which Smith’s circum-
stances are rightly to be compared. On the very night before
Smith’s discharge, fire watchman Willie Rachel was found
sleeping by Poche. Although the supervisors who discharged
Smith knew about Rachel’s sleeping, they did nothing about it.
The only distinguishing factor between Rachel and Smith is the
prounion sympathies of Smith and the antiunion sympathies of
Rachel. This differing treatment of employees is the essence of
unlawful discrimination. I find and conclude that, by discharg-
ing Smith Respondent violated Section 8(a)(3).
d. Joseph Bush’s discharge for sleeping on fire-watch duty
Joseph Bush (vol. 18) was a fire equipment operator in the
maintenance department until he was discharged on October 6,
1993. The second complaint, at paragraph 126, alleges that by
discharging Bush Respondent violated Section 8(a)(3). The
General Counsel contends that Respondent discharged Bush
because of his known union activities that consisted of his
wearing prounion insignia and reading a union handbill in the
presence of a supervisor. The complaint further alleges that, in
violation of Section 8(a)(1), Bush was threatened because he
was wearing prounion insignia. Respondent denies that the
threat occurred. Respondent further answers that its supervisors
had no knowledge of any prounion sympathies that Bush may
have held. Respondent further answers that Bush was dis-
charged solely because he was found sleeping during working
time, a ground for immediate discharge under the Avondale
Employees’ Guide and under separate rules that govern the fire
watchmen. The General Counsel replies that the sleeping de-
fense is a pretext because Bush was not sleeping at the time in
question. Ultimately, I find that Bush was not threatened in
violation of Section 8(a)(1) and that there is no evidence that
Respondent knew of any prounion sympathies that Bush may
have held before his discharge. I therefore conclude that the
General Counsel has not established a prima facie case that
Bush was discharged unlawfully, and I recommend dismissal of
the allegation of the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1282
As a fire equipment operator, Bush drove a firetruck and a
pickup truck. In the pickup truck, he went about the yard check-
ing on equipment such as fire extinguishers. One of his duties
also was to monitor certain fire-indicator panels that are located
in the firemen’s breakroom.
Bush testified that he wore a union badge as he worked for
Respondent, but Bush was squarely, and credibly, contradicted
by his coworker Curtis Young. Young was called by Respon-
dent, but on cross-examination he testified that, although Bush
and some of the other fire equipment operators favored the
Union, he knew this only through conversations; Young flatly
denied that any operators, which would include Bush, wore
prounion insignia.
John Zahn was a leadman in the maintenance department un-
til he was promoted to foreman on November 1. Although he
was classified as a leadman before November 1, Respondent
formally admitted that he was a supervisor within Section 2(11)
of the Act at all relevant times. (Zahn is also the individual
who, without conferring with any other admitted supervisor,
suspended Bush for the remainder of the day when, as I find, he
discovered Bush sleeping on October 6.) Respondent did not
move to amend its answer, and I conclude that Zahn was a su-
pervisor at all relevant times.
Bush testified that about 2 weeks before the June 25 Board
election Zahn asked him how he intended to vote, and Bush
told Zahn that he intended to vote for the Union. The General
Counsel introduced this testimony as specific evidence of
knowledge because it was Zahn who later found Bush sleeping;
there is no 8(a)(1) interrogation allegation relating to this ex-
change. Zahn denied this testimony, and I found Zahn credible
on the point.
Bush further testified that on September 27, when he was in
a work area, he was approached by Zahn. According to Bush:

John Zahn came up to me on his motor bike, and I was
wearing my Metal Trades Council badge, and he said,
“You are still wearing that badge.”
I said, “Yes, I am still wearing my badge, and I will be
wearing it until the pin falls off.”
And he told me, “You don’t got to worry about the pin
falling off, because you won’t be around here to wear it
much longer.”
And I said, “I will be wearing it as long as I come here
and do my job and come to work; every day I will be
wearing it.”

Based on this testimony, paragraph 72 of the second complaint
alleges that Respondent, by Zahn, “threatened its employees
with discharge because they aided or supported the Union.”
Zahn denied that this exchange occurred. As noted, mainte-
nance department operator Young credibly denied that Bush
even wore prounion insignia. As well, Zahn credibly denied the
threat. I shall recommend dismissal of this allegation of the
complaint.
Bush also testified that, at some time before his discharge,
Fire Chief Stayton (Stan) Oliver once saw him reading a union
handbill. Bush demonstrated by holding his hands before him
as if he was grasping a piece of paper. In the case of
discriminatee Simpson, the General Counsel called upon
Simpson to demonstrate how he placed a union handbill on a
table in view of Supervisor Robert Slocum and wrote an
assignment on it. In Bush’s case, however, the General Counsel
offered no evidence of how Oliver could have known what was
on the paper that Bush was holding. (Bush did not testify that
Bush was holding. (Bush did not testify that the paper had a
distinctive color or that printing was on both sides of the paper
that he held.) Oliver denied seeing Bush reading a union hand-
bill, and I credit that testimony.
I have discredited Bush’s testimony that he told Zahn 2
weeks before the June 25 Board election that he intended to
vote for the Union. Moreover, Oliver testified that Bush told
him that he did not favor the Union, and that testimony was not
rebutted. I therefore find and conclude that the General Counsel
has not presented a prima facie case that Bush was unlawfully
discharged, and I shall recommend dismissal of this allegation
of the complaint.
For possible purposes of review, however, I shall enter the
following findings regarding the circumstances of Bush’s dis-
charge:
Alternative Findings on the Dscharge of Bush
Bush testified that on October 5 he worked a shift from 2:45
until 11:05 p.m. About 4 p.m., after he had finished a round of
checking equipment in the yard, he went to the breakroom to
eat a sandwich and monitor the fire-alarm system. He was sit-
ting at a table, with his right elbow on the table and his chin
resting in his right palm, when Zahn entered the breakroom.
Bush testified:

I heard Zahn come in the door. He was opening the
door, slamming it; I know his voice. He come in loud. He
was hollering. He can’t help the door. It is just a squeaky,
squeaky door, you know. I just didn’t jump up when he
came in there. This was just—
I was in a really depressed mood at the time, and I was
just sitting there, watching the panel and just thinking
about my father. My father was real ill, and my immediate
supervisor knew that.

Bush denied that he was sleeping when Zahn came into the
break room. On direct examination, however, Bush was asked
and he testified:

Q. How were your eyes? Were they closed or open?
A. I can’t recall if my eyes were open or closed.

Zahn told Bush to leave the premises because Bush had been
sleeping. Bush denied to Zahn that he had been sleeping, but he
did as he was told.
On October 6, when Bush reported to work, Oliver escorted
him to the office of Maintenance Department Superintendent
Brian Marcell. Marcell told Bush that he was discharged be-
cause he had been sleeping on October 5. Marcell pointed out
to Bush that he had obtained written statements from two wit-
nesses, Zahn and “another man” (evidently Young, as discussed
below). Bush then left the premises.
Employee Young testified that, on October 5, shortly after
the shift started, he and Bush ate lunch together, in the fire-
men’s breakroom. Bush leaned back in his chair and fell asleep.
After Bush was sleeping for about 10 minutes, Zahn came into
the room. Young started to wake Bush, but Zahn gestured to
Young and stopped him from doing so. Zahn, according to
Young, sat at the table at which Bush was sleeping; Zahn ob-
served Bush for 10 minutes more, at which point Bush awak-
ened. Zahn then told Bush to collect his things and leave the
premises. Zahn testified consistently with Young, except that
he described Bush’s posture while sleeping as leaning forward
with his head on the table. This difference is curious, but it is
AVONDALE INDUSTRIES

1283
not determining especially in view of Bush’s testimony which
plainly reveals that he was sleeping.
I credit Zahn and Young. I find that Bush (who could not
remember if his eyes were opened or closed) was sleeping, and
Bush had been sleeping for about 10 minutes when Zahn found
him on October 5. I further find that Bush continued sleeping
for about 10 minutes more after he knew that Zahn had entered
the room.332
e. Eugene Sheard’s discharge for sleeping on a scaffold
Eugene Sheard (vol. 50) was employed as a shipfitter until
he was discharged on November 10, 1993. The fourth com-
plaint, at paragraph 23, alleges that by discharging Sheard Re-
spondent violated Section 8(a)(3). The General Counsel con-
tends that Respondent discharged Sheard because of his known
union activities and expressions of sympathy which consisted
of his wearing prounion insignia. Respondent answers that it
had no knowledge of any prounion sympathies that Sheard may
have held at the time of his discharge, and Respondent answers
that Sheard was discharged solely because he was found sleep-
ing on working time, a ground for immediate discharge under
the Avondale Employees’ Guide. The General Counsel replies
that the sleeping defense is a pretext because Sheard was not
sleeping at the time in question. Alternatively, the General
Counsel contends that, even if the Board finds that he had been
sleeping, it must nevertheless hold that Sheard was treated dis-
parately because other employees were found sleeping on duty
and they received lesser, or no, discipline. Ultimately, I find
that Sheard did sleep on duty. Respondent, however, failed to
call to testify the supervisor who made the decision to dis-
charge Sheard, and it failed to offer any reason why it did not
call that supervisor to testify; Respondent therefore did not
meet its burden under Wright Line to demonstrate that it would
have discharged Sheard even absent his protected activities. I
therefore conclude that Respondent discharged Sheard in viola-
tion of Section 8(a)(3). I further find that Sheard did not engage
in certain postdischarge misconduct as alleged by Respondent.
For most of 1993 Sheard worked in the shipfitting depart-
ment under the supervision of Foreman Emil (Joey) Foret Jr.
Sheard testified that he placed “Union-Yes” stickers on his
hardhat at some point before the June 25 Board election, and
those stickers remained on his hardhat through his discharge.
Sheard testified that he was the only member of Foret’s crew
who wore prounion insignia. Foret was not called to testify, and
I credit this undenied testimony.
On November 1, Sheard was “loaned” to the drydock and
commercial repair department (drydock department). In the
drydock department, Brian Ponville was his immediate supervi-
sor.333 Ponville reported to Superintendent David Koppleman.
At some time between November 1 and 9, Shipfitting Depart-
ment Foreman Gerald Ford was also loaned to the drydock
department; Ford then became Ponville’s acting immediate
superior (and a second-level supervisor above Sheard).

332 Again, these findings are entered only for possible purposes of
review because I conclude that no prima facie case was presented for
Bush.
333 Ponville is an admitted supervisor within Sec. 2(11); however, he
is the only nonsalaried foreman who was mentioned in this case, and he
was sometimes referred to by witnesses, including Ponville himself, as
a leadman.
On November 9,334 Sheard was assigned to a crew that was
doing cleaning work in a hold of a ship that was under contract
for repair at Respondent’s drydock. Sheard credibly testified
that he was the only member of the drydock department crew
who was wearing prounion insignia. Sheard testified that after
lunch he was not told specifically what to do, so he took it upon
himself to climb up a ladder to a 12-inch-wide board that was
suspended 40 feet above the deck of the hold. I find that
Sheard’s 40-feet estimate to be an exaggeration; the exaggera-
tion was possibly innocent because the deck of the hold (de-
signed for the storage of fluids) was slanting, so distances in-
volved in a fall would be hard to calculate; nevertheless, it is
clear that any fall from the scaffolding would have involved
injury. Sheard testified that, as he was seated on the scaffold, he
began sweeping rust and filings that had accumulated on hori-
zontal beams on the side of the ship. Sheard testified:

The employee below me asked to borrow my broom. .
. . I lent him my broom, and I was sitting there waiting on
my broom when [until?] he get through. . . . And my
foreman [Ponville] came in the hold, and I heard him yell
[that] he don’t need me no more. Told me to go home.

Sheard did then leave the premises. Sheard did not testify that
he made any response to Ponville when Ponville told him to
leave. Sheard testified that Ponville had entered the hold on a
ladder that descended through a hatchway on the main deck
into the hold. Sheard testified that he was sitting on the board,
with his back to Ponville, when Ponville started yelling at him;
his eyes, which Ponville could not have seen, were not closed.
Sheard denied that he was lying prone on the board; and he
denied that he had been sleeping when Ponville began yelling
at him.
The next day, November 10, when he reported to work,
Sheard was told by Ford that he had been discharged for sleep-
ing. Sheard argued that he had not been sleeping. Ford told
Sheard that, if he wanted to talk about the matter, he should go
see Superintendent Koppleman. When Sheard found Kopple-
man, he argued that he had not been sleeping the day before
and, “I would be crazy to be way up there sleeping on a board.”
Koppleman, according to Sheard, told Sheard to go back to the
shipfitting department (from which Sheard had been “loaned”)
and ask his foreman in that department if he wanted Sheard
back; if so, Sheard would not be discharged and he could return
to the shipfitting department.
When he got to the shipfitting department and found Foret,
Sheard related what Koppleman had said. Foret made a tele-
phone call to someone; then, according to Sheard:

He said, “Well, everything is okay.”
And I thanked him for getting my job back.
And he told me to, “[Go] right on down there to Dry
Dock, pick up your tools, and come on back down here on
the LSD.”

As neither Ford nor Foret testified, Sheard’s testimony about
what they told him is not denied.
Sheard went back to the drydock department to get his tools.
When he returned to the shipfitting department, he met that
department’s superintendent, Huey Seals. Further according to

334 Sheard placed the first accusations of his sleeping, and his being
suspended, on November 8, at 3 p.m., but Respondent’s documentation
and credible testimony proved that he was suspended on November 9,
before 1:45 p.m.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1284
Sheard, Seals told him: “The situation still stands that you have
been terminated.” Sheard gathered his tools and left the prem-
ises.
Sheard’s Discharge—Respondent’s Evidence
Eric Bardes (vol. 83) is an employee who works as an esti-
mator and craft-coordinator in the drydock department. Bardes
testified that he accompanied Ponville on an inspection “walk”
of the ship during the afternoon of November 9. They reached a
portion of the ship’s hold that was divided into quadrants;
Bardes and Ponville first entered a quadrant in which employ-
ees, other than Sheard, were doing cleaning work. Bardes and
Ponville left that quadrant and entered another. There were no
employees working in the second quadrant. Bardes and Pon-
ville began climbing the ladder to the hatchway that led out of
the hold. Bardes testified:

And we climbed down one side of the tank, crossed
over to the other [quadrant], and as we were leaving the
tanks, there was a man laying down on the scaffold
boards. . . . Bryan Ponville also saw the man. Bryan hol-
lered at him, something like, “Hey,” or words to that ef-
fect. . . . Bryan grabbed the man’s feet to shake him.

“The man,” of course, was Sheard. Ponville (vol. 73) testified
consistently with Bardes about the circumstances of finding
Sheard on the scaffold. Ponville and Bardes credibly testified
that the scaffold was made of two 12-inch boards, not one as
Sheard testified. Also there were two safety cables protecting
anyone on the 24-inch scaffold from falling.
Bardes and Ponville testified that Sheard appeared to be
sleeping. They were credible, and I find that Sheard was sleep-
ing when he was found by Bardes and Ponville. Bardes and
Ponville were also credible that there were no other employees
in the quadrant in which Sheard was found. That is, there was
no other employee to whom Sheard could have lent his hand-
broom (while Sheard waited on the scaffold, as Sheard testi-
fied). Moreover, Sheard acknowledges in his pretrial affidavit
that he did not even ask Ponville why he was being sent home;
this demonstrates to me that Sheard knew that he had been
found engaging in some misconduct. It is obvious to me that on
November 9 Sheard had removed himself from the area where
other employees had been working and he hid himself in a
place where he was unlikely to be detected as he slept. I so find.
(This factor of Sheard’s intentionally hiding to catch some
sleep would distinguish almost all of the comparative cases that
the General Counsel advances as evidence of disparate treat-
ment. The General Counsel has not shown that a significant
number of employees were allowed to continue employment
after intentionally hiding themselves in order to sleep on the
job. As I conclude infra, however, Sheard’s case does not get to
the issue of disparate treatment because Respondent did not
present credible evidence in defense against the allegation that
Sheard was discharged in violation of Section 8(a)(3).)
Ponville testified that he first told Ford that he had found
Sheard sleeping; then he called Koppleman. Koppleman told
Ponville that he would handle the matter. A few hours later,
Ponville approached Koppleman and asked what was going to
happen. According to Ponville: “And he said that he was going
to contact [Sheard’s] former supervisor [in the Shipfitting De-
partment] and find out what kind of work record he had before
he took any action.” Later in the day, according to Ponville:

Getting ready to go home, [Koppleman] told me that
[Sheard] was fired because he had a bad record in the
yard. In other words, he had a dirty record in the yard and
that he [Koppleman] had gotten with his former supervisor
and the decision was made that, with the record he had,
that they shouldn’t give him any more chances. . . . [Kop-
pleman] told me not to put [Sheard] to work the next
morning.

This testimony by Ponville was credible. Ponville further testi-
fied that he was with Ford on November 10 when Ford told
Sheard that he was discharged. Ponville testified that it was he
who told Sheard to see Koppleman “if he had any questions.”
(Whether it was Ford, as Sheard testified, or it was Ponville, as
Ponville testified, who told Sheard to go to Koppleman ulti-
mately does not matter; it could well have been both.) Ponville
testified that later in the morning of November 10 (after Sheard
had seen Koppleman, Foret, and Seals, as I find infra) he and
Ford saw Sheard:

He [Sheard] saw us [Ponville and Ford] headed up on
the levee and he flagged me down and he had tears in his
eyes and he told me he was sorry for sleeping on the job
but he needed his job. I told him it was out of my hands,
there was nothing I could do and he shouldn’t be sleeping
on the job.

I also find this testimony credible, and it fortifies my conclu-
sion that Sheard was, in fact, sleeping when he was found by
Ponville and Bardes on November 9.
Neither Foret nor Seals was called by Respondent, but Re-
spondent did call Koppleman. In direct conflict with the testi-
mony of Ponville, Koppleman (vol. 73), testified that, on No-
vember 9, when Ponville first reported to him that he and
Bardes had found Sheard sleeping, he immediately told Pon-
ville that Sheard was discharged. Later that day (on November
9, not November 10 as Sheard testified), Sheard came to his
office and asked him if he could not be sent back to the shipfit-
ting department instead of being discharged. Koppleman testi-
fied that he told Sheard that he would “consult” with Seals, but,
even if Seals would take Sheard back in the shipfitting depart-
ment, Sheard could never come back to the drydock department
because he had been found sleeping there. At that point, further
according to Koppleman, Sheard left the premises. Koppleman
testified that he did not speak to Sheard again; that is, Kopple-
man denied Sheard’s testimony that he and Sheard spoke on
November 10. Koppleman further testified that on November 9,
after Sheard left his office, he called Seals. According to Kop-
pleman:

I said, “Huey, we caught Mr. Sheard sleeping. I am go-
ing to terminate him. Now, if you have some other rea-
sons, that he is a good hand or something like that, if there
was anything that would warrant to keep him, say some-
thing now because if you take him back, I don’t want him
no more.”
And Huey Seals told me, “The policy is terminate
him.”

Koppleman further testified that on that afternoon of November
9, he prepared the ASI-22 (discharge) form to process Sheard’s
discharge. The ASI-22 form states in the space for “Explana-
tion for action,” in two lines as quoted here:

AVONDALE INDUSTRIES

1285
Sleeping on job, witnessed by Clock #1654, Brian
Ponville.
Employee on loan from Dept. #02 to Dept #24. Has 3
citations.

[Department 02 is the shipfitting department; department 24 is
the drydock department.] In spaces on the ASI-22 form, “Date
Prepared” is completed “11-9-93,” “Effective date” was ini-
tially completed: “11-9-93.” Copies of the document that both
the General Counsel and Respondent offered show, however,
that the “9” is stricken out, and “10” is inserted. Koppleman
acknowledged on cross-examination that he did not have
Sheard’s personal file on November 9, and did not even know
of Sheard’s prior disciplinary record, when he completed the
ASI-22 form. Koppleman testified that the words in the space
for “Explanation for Action,” as quoted above, were added on
November 10, but the remainder of the form had been com-
pleted on November 9 immediately after his discussion with
Seals.335 Koppleman’s signature on the form is dated “11-10-
93.” Further on cross-examination, Koppleman acknowledged
that he told Seals in that discussion that, even if he would take
Sheard back in the shipfitting department, Koppleman would
issue Sheard a “write-up,” or warning notice.
Sheard’s Discharge-Conclusions
Sheard wore prounion insignia as he worked in both the
shipfitting department and the drydock department; and he was
the only employee on either crew who wore prounion insignia.
I discredit the testimonies of Ponville and Koppleman that they
did not notice, and did not have knowledge of, that union activ-
ity by Sheard. More importantly, neither Foret nor Seals testi-
fied; Foret was the supervisor for whom Sheard regularly
worked, and Seals, as I find, was the supervisor who made the
final decision to discharge Sheard. I find that the supervisors
who knew Sheard at the time of the discharge knew that he held
prounion sympathies. Respondent’s animus toward employees
who favored the organizational attempt, including specifically
its animus toward those employees who wore prounion insig-
nia, has been established. I therefore conclude that the General
Counsel has presented a prima facie case that Sheard was dis-
charged unlawfully , and the burden shifts to Respondent to
demonstrate by a preponderance of the evidence that it would
have taken the same actions against Sheard even in the absence
of his known protected activities. Respondent’s defenses must
therefore be examined.
On brief, Respondent states that: “Mr. Sheard was termi-
nated for sleeping on the job in front of two witnesses, an im-
mediate discharge offense in [the] Avondale Employees’
Guide.” As discussed above in Aguilar’s case, the two-witness
requirement does not actually exist; specifically, Production
Vice President Michael Simpson (who headed Respondent’s
campaign against the organizational effort) testified that it did
not exist. Also, as the treatment of Sheard further shows, not
even Departmental Superintendent Koppleman believed that
sleeping was an immediately discharge able offense, no matter
what the Avondale Employees’ Guide states. My conclusion in
this regard may be rested entirely on evidence that was intro-

335 It is apparent that the two lines in the space for “Explanation for
Action” were added on a second insertion of the form into a typewriter;
the lines slant upwards, to the right, in perfect parallel. As I find, how-
ever, the entries were made on November 10, but only after Seals de-
cided, on that date, to discharge Sheard.
duced by Respondent, to wit: (1) Koppleman told Ponville that
he would check Sheard’s prior disciplinary record before mak-
ing any decision about Sheard, as Ponville testified; (2) Kop-
pleman actually checked Sheard’s disciplinary record and told
Ponville on November 9 that Sheard had a “dirty” record, as
Ponville further testified; and (3) Koppleman told Sheard that
he could continue his employment if the shipfitting department
supervisors would take him back, as Koppleman admits. Kop-
pleman would have done none of these things if he had actually
thought that sleeping was an immediately discharge able of-
fense. Additionally, Koppleman testified that, had Seals agreed,
he would only have issued a warning notice to Sheard for his
sleeping and sent him back to the shipfitting department with
orders that he not return to the drydock department. In giving
this testimony, of course, Koppleman was admitting that, not
only was sleeping not an immediately discharge able offense, it
could be punished with only a warning notice and a transfer.
(Because, as I find, Koppleman did not discharge Sheard, im-
mediately or otherwise, the conclusions of this paragraph actu-
ally apply more to the case of discriminatee Aguilar than to
Sheard; that is, Aguilar was immediately discharged when he
was found sleeping, but, as I concluded in his case, Aguilar’s
discharge was an act of disparate treatment.)
Koppleman may have begun the ASI-22 (discharge) form for
Sheard on November 9, but, as the date of his signature indi-
cates, and as Koppleman acknowledged on cross-examination,
the form was not completed until November 10. At minimum,
it is clear that Koppleman did not send the form to his superi-
ors, and complete the discharge process, until November 10. I
find, consistent with Sheard’s testimony, that it was on Novem-
ber 10 (not on November 9, as Koppleman testified), that he
went to Koppleman to appeal for his job. After Koppleman
heard Sheard’s appeal, as Sheard further testified, Koppleman
told him that he could continue his employment if the supervi-
sors in the shipfitting department would take him back. That is,
although Koppleman had told Ponville on November 9 that,
because Sheard had been caught sleeping and because he had a
“dirty” record of warning notices, he would discharge Sheard,
Koppleman reversed his decision on November 10 after Sheard
made his appeal. Koppleman’s second decision, as he admitted,
was to issue Sheard a warning notice but withhold processing
of the ASI-22 form if the supervisors in the shipfitting depart-
ment would take Sheard back. As Sheard’s undisputed testi-
mony proves, Foret agreed, on behalf of the shipfitting depart-
ment, to take Sheard back, but Seals, Foret’s superior, repudi-
ated that agreement and told Sheard that he was discharged.
When Seals decided to repudiate the agreement between
Koppleman and Foret, he made the effective decision to dis-
charge Sheard. That is, the final decision to discharge was
made by Seals. Indeed, in a June 10, 1994 letter to the Region,
Respondent admitted that Seals made the final decision to dis-
charge Sheard. That letter states: “Mr. Seals reviewed
[Sheard’s] record and since he had been caught sleeping, and
had received four warning notices in less that 12 months, Mr.
Seals terminated [Sheard].” This is nothing short of admission
that it was Seals who discharged Sheard. Also, the evidence
that Respondent introduced at trial also clearly indicates that
Seals made the final decision to discharge Sheard. Simply
stated, Koppleman gave Seals the last word; if Seals had been
willing to take Sheard back in the shipfitting department, he
presumably would have still been employed there (albeit with
one more warning notice that would have been issued by Kop-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1286
pleman). Finally on this point, undisputed evidence that the
General Counsel introduced at trial also proves that Seals made
the decision to discharge Sheard. Respondent did not call Foret;
therefore, Sheard’s testimony is undisputed that: (1) he went to
Foret on November 10; (2) he told Foret that Koppleman said
that, if the shipfitting department would take him back, Kop-
pleman would not discharge him; (3) Foret then made a tele-
phone call; (4) Foret then told Sheard that the matter had been
taken care of and he could continue working in the shipfitting
department; (5) Foret further told Sheard to return to the dry-
dock department and gather his tools. On brief, Respondent
does not mention Sheard’s undenied testimony about his ex-
changes with Foret. Sheard’s undisputed testimony that dis-
closed Foret’s November 10 agreement with Koppleman, of
course, is completely inconsistent with Koppleman’s testimony
that Seals told him on November 9 that Sheard could not be
returned to the shipfitting department solely because Sheard
had been sleeping on the job. If Respondent could have briefed
me with a reason for discounting Sheard’s undenied testimony,
it undoubtedly would have.
Foret would not have made the statement to Sheard that, in
effect, he and Koppleman had reached an agreement whereby
Sheard could keep his job if that statement had not been true.
That is, the undisputed evidence is that, when Sheard left the
shipfitting department to get his tools at the drydock depart-
ment, he had not been discharged. I find that Koppleman did
not even speak to Seals on November 9; Koppleman got his
information about Sheard’s “dirty” work record on November
9, as he then told Ponville, but that information apparently
came from a clerical in the shipfitting department, not Seals. It
is clear from the circumstances, and I find, that it was Kopple-
man to whom Foret spoke on the telephone before telling
Sheard that he could continue his employment with Respondent
in the shipfitting department, and Sheard therefore was not then
discharged.
The decision to discharge Sheard was not made until after he
left the shipfitting department to get those tools. It is apparent
to me, and I find that, while Sheard was collecting his tools in
the drydock department, Seals first found out about the agree-
ment between Foret and Koppleman, and he then decided to
repudiate it. Upon Sheard’s return to the shipfitting department,
Seals told Sheard of his decision that, despite the agreement
between Koppleman and Foret, he had decided that Sheard was
to be discharged.336
Under Wright Line, the issue is whether Respondent has
demonstrated that it would have discharged Sheard even in the
absence of his known protected activities. The Board, of
course, requires evidence upon which to make its findings and
conclusions under Wright Line. Because Seals was not called to
testify there is no record evidence of the basis for Seals’ deci-
sion. Moreover, except to the extent that it contains admissions
against Respondent, counsel’s letter of June 10, 1994, is not
evidence, Specifically, counsel’s letter is not evidence that the
supervisor who decided to discharge Sheard (to wit: Seals) did
so because of Sheard’s prior disciplinary record as well as his
sleeping. Indeed, Respondent’s letter is not even evidence that
Sheard’s sleeping had anything to do with his discharge. Also,

336 In making these findings, as well as Respondent’s admission by
letter to the Region, I heavily rely on the fact that Respondent called
neither Foret nor Seals to testify, and I draw the strongest adverse in-
ferences against Respondent for its failures to do so. See International
Automated Machines, 285 NLRB 1122 (1987), as quoted above.
Koppleman’s report in the postdischarge ASI-22 form is hear-
say as to what considerations were taken into account by the
decisionmaker, Seals.
If Respondent had called him as a witness, Seals may have
testified that he based his decision solely on Sheard’s sleeping,
but it is equally possible that he shared Paint Department Su-
perintendent Bourg’s opinion that sleeping employees may well
just be spoken to, rather than discharged, as discussed above in
the case of discriminatee Aguilar. It is also possible that Seals
would have testified that he decided to discharge Sheard only
because of the number of warning notices that Sheard had re-
ceived; the notation “Has 3 citations” on the ASI-22 form
would indicate as much. (Of course, if Seals had testified that
he decided that Sheard should be discharged because of the
number of his prior warning notices, his testimony would have
raised the issues of how many warning notices, within what
period of time, compel a discharge, as discussed in the cases of
discriminatees Barbara Marshall, Hernandez, Varnado, and
George, supra.) It is also entirely possible, however, that Seals’
testimony would have revealed that he decided to discharge
Sheard because of the fact that Sheard was the only employee
who wore prounion insignia when he worked on Foret’s crew.
The great degree of animus that Respondent holds makes this
last possibility more than clear. All of which is to say that, be-
cause that decisionmaker was Seals, only Seals could have
offered testimony of why Sheard was discharged. Respondent,
however, did not call Seals to testify, and it offered no reason
for failing to do so.
By failing to call Seals, of course, Respondent shielded the
decisionmaker from the requirements of the oath and cross-
examination. Instead, Respondent asks the Board to make its
decision on the basis of (1) Koppleman’s false (and hearsay)
testimony that Seals told him on November 9 that Sheard
should be discharged only because he had been sleeping, and
(2) the postdischarge memorandum that Koppleman completed
only after Seals made the decision to discharge Sheard. Again, I
draw the strongest adverse inference against Respondent for its
failure to call Seals to testify.
In summary, Koppleman told Foret that Respondent had a
reason for which it could discharge Sheard. Foret decided not to
discharge Sheard, and Foret put Sheard back to work (by telling
him to go and collect his tools). Seals, however, for a reason
that was not disclosed by testimony, decided to overrule Foret,
and Seals discharged Sheard. Because Respondent did not call
Seals to testify, it has not shown that Seals would have dis-
charged Sheard even absent his protected activities. Because it
has not offered any credible evidence that Seals would have
discharged Sheard even absent his known protected activities,
of course, it has not met its burden under Wright Line. I there-
fore conclude that Sheard was discharged in violation of Sec-
tion 8(a)(3).
Respondent further contends that, after his discharge, Sheard
confronted Seals and threatened him with death. Respondent
argues that, because of this post-discharge misconduct, Sheard
is barred from any potential remedy. Again, Seals did not tes-
tify, and Respondent offered no excuse for not calling him.
Again, I draw an adverse inference against Respondent; if Seals
had actually been threatened to his face, as Respondent alleges,
Respondent would have called Seals to so testify. Moreover,
Sheard denied the threat, and his denial was just as credible as
the (conclusion-filled) testimony of the one witness that Re-
spondent did offer in support of its allegation, General Foreman
AVONDALE INDUSTRIES

1287
Neil Adams (vol. 83). I therefore find that Respondent’s allega-
tion of postdischarge misconduct by Sheard has not been
proved, and I conclude that Sheard is entitled to full remedy
under law.
5. Employees warned or discharged for loafing
a. Keith Collins’ discharge for loafing in restroom
Keith Collins (vols. 5, 47) was employed as a welder until he
was discharged on June 1, 1993.337 The first complaint, at para-
graph 27, alleges that by discharging Collins Respondent vio-
lated Section 8(a)(3). The General Counsel contends that Re-
spondent discharged Collins because of his known union activi-
ties and expressions of sympathy which included his making
prounion remarks, both in employer campaign meetings and
individually, to his supervisors. The General Counsel further
contends that a supervisor twice admitted to other employees
that Collins was discharged because of his union activities.
Finally, the General Counsel alleges that, in violation of Sec-
tion 8(a)(1), Collins was twice threatened with unspecified
reprisals because of his union activities and that Collins was
once threatened that other employees had been discharged be-
cause of their union activities.338 Respondent denies that the
threats and admissions were made. Respondent further answers
that its supervisors did not know of Collins’ prounion sympa-
thies and that Collins was discharged solely because, on June 1,
he was found to be spending an excessive amount of time in the
restroom. The General Counsel denies that Collins spent an
excessive amount of time in the restroom; alternatively, the
General Counsel replies that Collins was treated disparately
because (1) Collins was not given the benefit of Respondent’s
progressive disciplinary system that is contained in the Avon-
dale Employees’ Guide, and (2) other employees engaged in
similar conduct but they were issued lesser discipline or no
discipline at all. Ultimately, I find and conclude that, although
he spent an excessive amount of time in the restroom, Collins
was treated disparately and that he was discharged in violation
of Section 8(a)(3).
Collins’ immediate supervisor was Foreman Bobby Ramirez
who, in turn, usually reported to welding department General
Foreman Hubert (Butch) Cole and Superintendent Norris Per-
tuit. Collins testified that in early March 1993, about the time
the organizational effort started, Cole and Welding Department
Foremen Donald Brown and Sterling Dolese conducted an
employer campaign meeting. At the meeting Brown spoke
against the organizational attempt. Collins further testified that
he spoke up and:

I told him about the injustice that was going on out
there on the yard and about the nepotism and how I ha-
ven’t had a raise in five years. And I have seen other peo-
ple, like Ramirez and his foreman, Ricky, they had got
raises.
And I explained to him, “That is why I think we need a
union, because the Company [doesn’t] seem to be trying to
change to ease our problems.”

337 Collins testified that he was discharged on June 2; however, his
personnel card and Respondent’s report to the Louisiana Department of
Labor show that his last day worked was June 1.
338 The other employees were Dwight Ballard and Lennie Valentine.
In Ballard’s case, supra, I find that the supervisor, Jesse Caston, did
make this threat in violation of Sec. 8(a)(1).
And they told me, “No, that is the worst thing that
could happen to this yard.”

Neither Cole nor Brown was presented by Respondent as a
witness; Dolese testified, but he did not deny that Collins made
these prounion statements. I credit Collins’ testimony.
Collins further testified that in late March, immediately after
another employer campaign meeting, he was approached at his
work station by Ramirez, and:

I was welding, and he [Ramirez] say, “Keith, do you
have any questions about the meeting?” . . .
And then I asked him, “Bobby Ramirez, when are you
going to give me a raise? When are you all going to see
about giving me a raise?”
And he say, “When the Company gets back on its feet,
we are going to see about getting you a raise.”
And then I asked him, “Do Avondale have any con-
tracts?”
And he says, “I think they have a couple of contracts.”
And then I asked him, “What are they waiting [for], to
see what happened with the election before they announce
it?”
And he say, “I think so, but if you tell anyone that I
told you this, I am going to lie and say I didn’t tell you
this.”
And then he asked me did I have any more questions,
and I said, “No.” And just before he left, he told me, “You
are doing a good job. Keep up the good work.”

Based on this testimony by Collins, paragraph 13 of the first
complaint alleges that Respondent, by Ramirez, “threatened its
employees with unspecified reprisals if they continued to assist
the Union.” As discussed infra, Ramirez denied telling Collins
that Respondent’s granting of wage increases depended on the
results of the Board election.
In late March, Collins was transferred (or “loaned,” depend-
ing on Respondent’s terminology which is important in other
cases, but not Collins’) to the pipe department to work as a
helper to employees who worked under different foremen;
those foremen reported to Pipe Department General Foreman
William Fedrick. On June 1, Collins was transferred back to the
welding department under Ramirez and Cole. On that date,
according to Collins, Cole was absent and Welding Department
General Foreman Ernest Foret Sr. substituted for Cole. At some
point before 11 a.m., Foret conducted an employer campaign
meeting; present were all welding department foremen and
employees. According to Collins:

Bobby [Ramirez] came to me early and told me we
was going to have a meeting —a union meeting in the of-
fice. So I went to the office. I sit across from Mr. Foret—I
sit right across from him, and Ramirez sit on the side of
me. And Foret asked me what my badge number was.
And I told him, “My badge number is 420.”
And he told me that . . . “[Fedrick] came over here and
told me that you was missing a lot of time.”
And I would say, “No, I only missed one day since I
was in the Pipe Department. The two months I was in the
Pipe Department, I missed one day.”
And he say, “I told [Fedrick] he should have fired
you.”

Based on this testimony by Collins, paragraph 18 of the first
complaint alleges that Respondent, in violation of Section
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1288
8(a)(1), by Foret, “threatened its employees with unspecified
reprisals if they continued to assist the Union.” As discussed
infra, Foret admitted similar comments to Collins, but he placed
them in a different time, place and context. Ramirez testified,
but not about any exchange that he might have witnessed be-
tween Collins and Foret.
Collins’ Discharge—General Counsel’s Evidence
Collins testified that the June 1 meeting that was conducted
by Foret ended about 11 a.m. At 11:15 a.m., Collins left his
work area to go to the restroom. It took 4 or 5 minutes to get to
the restroom. Collins left the restroom at 11:35 a.m.; therefore,
by his account of the time needed to get back to his work area,
it would have been 11:40 a.m. when Collins did so. Therefore,
by his estimate, Collins was absent from his job to go to the
restroom for 25 minutes.
Collins testified that when he returned to the welding work
area, he was greeted by Ramirez:

Then he told me, “Keith, where have you been? I been
looking for you. This yard could have been burning down.
I was timing you. You was in the restroom for 30 min-
utes.”
And I told him, “No, I was watching my watch. I was
in the restroom for 15 minutes.” . . .
And he said, “No, I was timing you. You was in the
restroom for 30 minutes.” . . . And then he say, “Your
clock number is not on your work.”
And I say, “Yes, it is on my work.”

Welders are required to chalk their clock (or “badge” or “em-
ployee”) numbers on welds that they have completed. Collins
and Ramirez went to the weld in question, and Collins’ badge
number was on it. Further according to Collins:

[A]nd he say, “All I know, you was in the restroom for
30 minutes.”
I said, “No, I wasn’t in the restroom for 30 minutes.”
Well, then he told me that some pipe fitters say that I
was over there in the pipe fitting department—I was lazy,
and I didn’t want to work. And he say, “Well, give me
your badge.”
I say, “Give you my badge for what? Bobby, I know
you all setting me up.”
And he says, “There is more to it than that. The pipe
fitters say you didn’t want to work; all you wanted to do
was talk about the Union.”
So he told me, “If you don’t give me your badge, I am
going to call the security guard.”
And I told him, “I been out here for nine years. You
are going to terminate me for allegedly something like
this?”
And he say, “All I know is the pipe fitters said you was
lazy and you didn’t want to work.”

(Collins had, in fact, been employed by Respondent for 9
years.) At that point, Collins was discharged. After Collins and
Ramirez went to the toolroom to account for all of the com-
pany-owned tools that Collins had checked out, Collins went to
Superintendent Pertuit’s office. Collins protested his discharge;
Pertuit responded that Collins had been given warning notices
for poor production in 1986 and 1987, and concluded, “I can’t
do anything for you.” Pertuit testified for Respondent (vols.
104, 141), but he was not asked anything about Collins on di-
rect examination, and this testimony by Collins stands un-
denied. The ASI-22 (discharge) form that Pertuit created, and
sent to the human resources department after Collins was dis-
charged, states that the reason for Collins’ discharge was:
“Leaving job without supervisor’s permission.” General of-
fense-4, as stated in the Avondale Employees’ Guide is: “Wast-
ing time, loitering or leaving the working place without permis-
sion.”
Collins’ personnel card indicates that before his discharge
Collins was issued two warning notices in 1988, three in 1989,
one in 1990, one in 1991, and one in 1993. The 1993 warning
notice is dated March 25; it is signed by Cole and Ramirez; it
cites general offense-1; and it states as the reason for warning:
“Excessive absenteeism. Also, failure to notify superintendent’s
office of reason for absence.”
Ernest Roland (vol. 40) is a current employee who drives a
van pool to and from work. Roland testified that on June 1, the
day that Collins was discharged, Shipfitting Department Assis-
tant Superintendent John Ernst, Ramirez, and several nonsuper-
visors rode home with him in the van. According to Roland,
Ernst spoke to Ramirez and:

[Ernst] said, “Well, I heard you fired another one of
them guys today.”
I was driving my van and I come to a stop sign and I
stopped, and I turned and I looked at Bobby, and he
looked at a little notebook that he had in his pocket and he
said, “Yes, I fired another one of them guys today in-
volved with the Union.” . . . He said [it was] Keith Collins.
. . . Then he laughed.
He [Ramirez] said, “Big Foot [Ernest Foret Sr.] ain’t
got the balls to fire them.” . . . He said, “Big Foot told me
to fire him; he is involved with that Union.”
[Ernst] just laughed.

(Ramirez and Ernst denied that this exchange occurred, and
these denials will be discussed infra.) the General Counsel fur-
ther introduced certain testimony by current employee Law-
rence Arabie (vol. 32) as evidence of an admission by Ramirez
that Collins was discharged for union activities. Arabie’s testi-
mony was credible as far as it went; however, it did not contain
such admission, and I do not consider it further.
Collins’ discharge—Respondent’s evidence
Ramirez on direct examination: Ramirez testified (vol. 111)
that Collins asked him several times for a raise; the last time
Collins asked, he told Collins that raises would be coming
when the Company was in “better shape.” Ramirez denied,
however, that he ever told Collins that whether Collins received
a wage increase depended on whether the Union was selected
as the employees’ collective-bargaining representative, and
Ramirez denied saying that he would lie and deny that he had
made such a remark. Ramirez further denied any knowledge of
any prounion sympathies that Collins may have held.
Ramirez testified that he supervised Collins at irregular in-
tervals during the 2 years before Collins was loaned to the pipe
department; during those 2 years, he observed Collins’ walking
away from his work and otherwise “goofing off.” Ramirez
further testified that other Welding Department employees
would complain to him that Collins would leave the hardest
parts of jobs for them to do. Ramirez testified that on those
occasions he would: “pull him off on the side and tell him,
‘Hey, Keith, these guys don’t want to work around you. You
need to straighten up.”’ Ramirez acknowledged, however, that
he never issued Collins a warning notice for his conduct during
AVONDALE INDUSTRIES

1289
the prior years that Collins had worked under him; Ramirez
also did not testify that he orally warned Collins of discharge or
other possible discipline during those years.
Ramirez further testified that during the April-May period
that Collins was loaned to the pipe department, he saw Collins
walking toward the restroom “[a]bout four or five times a day.”
Ramirez testified that when Collins arrived back in the welding
department, at 7:30 a.m. on June 1, he assigned Collins to do
some welding work, “[a]nd told him to put his number on his
work.” About an hour later he observed that Collins had com-
pleted some welding but he had not placed his badge number
on it. Ramirez testified “I got on him like I usually do. I told
him, ‘You have got to put your number on your work. I am not
playing with you. You have got to put it on there.”’ Ramirez
testified that Collins replied, “Okay.” Ramirez did not testify
that, at any other point before he discharged Collins, Collins
failed to place his employee number on a completed weld.
Ramirez testified that later in the morning, when he was near
the platen upon which Collins was working, Shipfitting De-
partment Foreman Terry Cortez called him over to an adjacent
platen. Cortez told Ramirez that he had a rush weld job to do.
Cortez was very anxious that the welding be done immediately
and forcefully demanded that Ramirez assign someone to the
job immediately. As they were talking, Ramirez noticed that
Collins had stopped welding on the job that Ramirez had previ-
ously assigned to Collins and that Collins had begun walking in
the direction of a restroom that was about 200 feet away. Rami-
rez testified that he observed Collins walk for 2 minutes to the
restroom door. He noted by his watch that Collins entered the
restroom at 11:10 a.m. He and Cortez continued talking; at
11:15 a.m., as Cortez was getting more anxious that the job be
started, Ramirez testified that he told Cortez, “Well, let’s wait a
little before I make a decision about getting another guy here.
He ain’t going to be that long. Calm down.”
Ramirez was asked and he testified:

Q. What happened then?
A. Ten minutes went by; ten more minutes went by. I
said, “Man, this guy is killing me, man. So, you know,
let’s just hang loose. Let’s just wait now.”
Q. Why did you decide—did you decide to wait there?
A. I decided to wait . . . because of his back history, I
figured that is what he was doing, pulling another one of
these stunts of his.
Q. Why didn’t you go in the bathroom to get him?
A. I am not doing that. . . . These are grown men I am
working out there. They need to be a little bit more re-
sponsible. I am not going after these guys in the bathroom.
That is their job, not mine. I got a job to do.
Q. What happened next?
A. It was quarter to 12:00 when he came out. It took
him another two minutes to get over there.
Q. Where were you? Did you see him come out [of]
the bathroom?
A. Yes, I was watching him.
Q. How do you know it was a quarter to 12:00 when
Mr. Collins walked out?
A. I was looking at my watch.
Q. What happened then?
A. He went back up there, and I am standing there. By
that time, [Cortez] started walking off. When he [Collins]
bypassed me, he just went by me and went back to work—
getting ready to go back to work.
Q. What did you do, if anything?
A. I went over there and I said, “Give me your badge. I
no longer need your services.”
Q. Did you discharge him at that point?
A. Right.

Ramirez did not deny that, as Collins testified, when Collins
came back from the restroom, he and Collins inspected the
weld that Collins had finished before he went to the restroom,
and Collins’ badge number was on it. (To the extent that Rami-
rez’ testimony could be construed to contain any such a denial,
I discredit it.)
After telling him that he was discharged, Ramirez walked
Collins to the toolroom. There, according to Ramirez, Collins
complained that he was being discharged because of his union
activities. Ramirez testified that he replied: “That is not the
reason why I am firing you, Keith. The reason why I am firing
you is because of your past record and what you are doing
when you spend all that time in that bathroom. We can’t keep
putting up with this all the time.”
Ramirez further testified that after he and Collins parted
company at the toolroom, he met a pipefitting employee who
told him that Collins had been lazy while he worked in the pipe
department. Still later, when he saw Collins near a gate, before
Collins left the premises, Ramirez told Collins that he had re-
ceived a report that Collins had been lazy while working in the
pipe department. This testimony, apparently, was offered to
deny that Ramirez had said such a thing when he discharged
Collins at the platen. Ramirez did not, however, deny that he
also told this to Collins when he discharged Collins at the work
site, as Collins testified. (To the extent that Ramirez’ testimony
could be construed to contain any such a denial, I discredit it.)
Ramirez further denied that, at the end of the day, in the van
that takes him home, he told Ernst: (1) that he had fired an em-
ployee that was involved with the Union, or (2) that he then
told Ernst that Foret did not have the “balls” to fire Collins, or
(3) that he then told Ernst that Foret had told him to fire Collins
because he was involved with the Union. After these denials,
Ramirez was asked and he testified:

Q. Before Collins was sent back to work with you, Mr.
Ramirez, did you have any discussions with Big Foot
Foret regarding Collins?
A. Before he was sent back to me?
Q. Yes.
A. No.

Ramirez was not asked if he had any discussions with Foret
after Collins was sent back to him from the pipe department
(i.e., during the morning of June 1, between 7:30 a.m., when
Collins arrived from the pipe department, and 11:45 a.m., when
he discharged Collins).
Finally, it is to be noted about Ramirez’ direct examination,
that he was asked and he testified:

Q. Why did you do that [discharge Collins], Mr. Rami-
rez?
A. I felt—may I say that to explain myself—I felt that
Keith Collins owes me an explanation why he was in the
bathroom that long. If he was sick, I would have sent him
to first aid and never said a word. But he bypassed me, [in
effect, Collins was saying] “just to heck with you; I do
what I want.” And I already had the heat on me.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1290
And I made the decision. With his past, I wasn’t going
to put up with it no more.
Q. When you said you already had the heat on you,
what do you mean by that?
A. That I got to get these bulkheads finished, and he is
playing around on the job. He don’t care about his job. I
got a job to do.

Later in his direct examination, Ramirez was asked (again):

Q. What were the specific reasons that you fired
Collins?
MR. LURYE [for the Union]: Objection.
JUDGE EVANS: Overruled.
THE WITNESS: To start off with, I felt that he should
have gave me an explanation why he was in that bathroom
that long, to begin with. If he would have told me, like I
said, he was sick, spending that long in the bathroom, I
would have said, “Okay. Go to the first aid and go ahead
and go home.” No big deal.
But when he—as far as I am concerned, he disre-
spected my ability as a foreman and whatever and just
went on back to work and [in effect] said, “Heck, I will
spend 35 minutes in there; he ain’t going to tell me noth-
ing, or I don’t care.” I said, “Okay.”
I said, not only that, his background for the two years
that I worked him is not real good. I mean, I don’t spend
35 minutes in the bathroom. That is what I am saying. And
that is the reason why I fired him.

(It is to be noted that Ramirez was first asked on direct exami-
nation why he discharged Collins, and then later on direct ex-
amination he was asked the “specific reasons” for the dis-
charge. This was really a repetition of a question on direct ex-
amination, and the Union’s objection was, in that sense, valid.
In the direct examinations of many other supervisors that it
called at trial, Respondent’s counsel asked first for “the” rea-
sons for discharges, and then he asked for “the specific rea-
sons” for discharges. I consider this procedure to have been a
technique of attempted testimony enhancement, and I usually
do not consider the answers to the repetitive “specific reason”
questions. The exception is where those answers contain ex-
press or tacit admissions. For example, in the just-quoted testi-
mony, Ramirez does not mention as a part of the reason for the
discharge Collins’ failures to mark his welds; this is a tacit
admission that weld marking was not part of the reason for the
discharge, even though Ramirez later added this reason on
cross-examination, and Respondent contends that Collins was
discharged, in part, for failure to mark his welds with his badge
number.)
As noted, Ramirez testified that after he discharged Collins
on the platen, he took Collins to the toolroom. Ramirez was
further asked and he testified:

Q.[By Mr. Cupp]: Did you say anything to Collins at
that point about a pipefitter foreman?
A. Not at that time, no.
Q. At that time, Mr. Ramirez, did you tell Collins that
another pipefitter foreman had said all Collins wanted to
do was talk about the Union?
A. I didn’t say “another pipefitter foreman.”
Q. At that time, did you say—did you tell Mr. Collins
that someone had told you that all he wanted to do was
talk about the Union?
A. No.
Q. How long did the conversation in the toolroom last?
A. A minute, two minutes.

Of course, Collins had not testified that Ramirez’ statement
about him talking about the Union was made at the toolroom;
Collins testified that the remark was made at the platen, just
after Ramirez had found his marks on the welding that Collins
had done before he had gone to the restroom. Also, Collins had
not testified that Ramirez had told him that it was a pipe de-
partment foreman who had said that all he had wanted to do
was “talk about the Union”; Collins testified that Ramirez had
said that “[t]he pipefitters” had made the statement. To the
extent that Ramirez’ testimony may be said to suggest a rele-
vant denial of this specific testimony by Collins, I discredit it.
Ramirez on cross-examination: Although he had denied on
direct examination that, after an employer campaign meeting,
he told Collins that raises were being delayed until after the
Board election, Ramirez on cross-examination acknowledged
that his pretrial affidavit states, in part: “I recall talking to
Collins after one of the meetings I conducted to state Avon-
dale’s position regarding the Union. I recall saying to Collins
that I would do what I could to keep the Union out.”
Further on cross-examination Ramirez was asked and he tes-
tified:

Q. [By Mr. Bensinger]: Now, if an employee engages
in misconduct that is working for you, do you usually give
the employee a chance to explain why he engaged in that
misconduct?
A. Sure. Yes, sir.
Q. And do you usually first question the employee to
ask him why he engaged in misconduct or what happened?
A. I would clear it with him, yes. Yes, sir.
Q. And then do you hear him out, and then you discuss
it with him?
A. Discuss it with him, yes.

Ramirez further acknowledged on cross-examination that, be-
fore he gives a warning notice, he “normally” gives an em-
ployee one oral warning; and sometimes he gives an employee
more than one oral warning before he issues a warning notice.
Further on cross-examination Ramirez testified that “[a]s far as
the Company is concerned,” warning notices are not valid after
12 months, but: “If he [any employee] wasn’t working for me, I
don’t go look back at his record. I don’t hold that against him.
If he does a good job, I just go from there.”
Ramirez was further asked and he testified:

Q. Sir, you realize that the reason the Company has
written citations is to put employees on notice that their
performance has to improve.
A. Yes, sir.
Q. And that is the same reason that you give employ-
ees verbal [oral] warnings.
A. Right.
Q. And in the past, when—over the two years that you
worked Mr. Collins, in the past when you gave him verbal
warnings, his conduct improved.
A. It improved within—it was up and down. When I
was getting ready to give him a citation, he got good. He
got better and was doing everything right. Then he went
right back like he was. It seemed like he was—had it
planned out like that.
AVONDALE INDUSTRIES

1291
I mean, I didn’t want to fire the guy. He was trying to
do better, then he went back.
JUDGE EVANS: Next question.
Q. [By Mr. Bensinger]: Not in regards to Mr. Collins,
but with the other men and women you supervised over
20-some years, you have had the experience that if an em-
ployee is slacking off, if you gave the employee a written
citation, that sort of snapped him back in line.
A. Sometimes; sometimes not.
Q. And you knew when you fired Collins that possibly
if you gave him a written citation, that might have caused
him to improve his performance.
MR. CUPP: Objection.
JUDGE EVANS: Did you realize that?
Overruled.
THE WITNESS: I just got tired of putting up with the
way he was conducting himself on the job. When he by-
passed me, I felt he owed me an explanation.
JUDGE EVANS: Excuse me. The question was did you
realize when you had waited so long for Collins to come
back that you could give him a written warning notice for
doing this, taking so long?
THE WITNESS: I probably could have, but it was a
judgment call on my part. I felt he no longer deserved any
more chances from me.

Ramirez acknowledged that it could have been as much as a
year before June 1 that Collins had last worked for him.
Although Ramirez claimed on direct examination that, while
Collins was on loan to the pipe department, he saw Collins
going toward the restroom “about four or five times a day,” on
cross-examination he further acknowledged that pipe depart-
ment helpers on ships (as Collins was then) often walk in the
same direction as the restrooms on the ground while being sent
on errands by the mechanics that they are helping. When asked
to acknowledge that he did not know why Collins was on the
ground when he was assigned to the pipe department, Ramirez
responded: “All I know is I would see him pretty often.”
As noted, on cross-examination Ramirez added that one of
the reasons that he discharged Collins was his sometimes-
failure to mark his badge number on his work. Finally, on
cross-examination Ramirez testified that he had no idea why
the ASI-22 form for Collins cited: “Leaving job without super-
visor’s permission.” Ramirez testified that Collins had not
needed his permission to go to the restroom when he did, and “I
don’t question people when they stay in there for ten, fifteen
minutes.” Ramirez further acknowledged that he knew that,
under the Avondale Employees’ Guide, “leaving the working
place without permission” is general offense-4, for which a
warning notice is the first step in the progressive disciplinary
system.
Cortez (vol. 99) corroborated Ramirez’ testimony that he
stood with Ramirez while Collins went to the restroom. Cortez
testified that he and Ramirez could see the restroom door from
where they stood, about 200 feet away. Cortez testified that he
and Ramirez waited for Collins, “I would say approximately
30, 35 minutes.” When Collins approached them, Cortez left.
Cortez did not, however, corroborate Ramirez’ testimony that
he was particularly anxious that the job be started immediately.
As noted, Pertuit was asked nothing on direct examination
about Collins. On cross-examination Pertuit acknowledged that
he completed the ASI-22 form that is quoted above and sent it
through to the personnel department to complete the discharge
of Collins. Pertuit testified that before doing so, Ramirez re-
ported to him that: “One thing he [Ramirez] said he terminated
Collins for [was] staying away off the job, and he has a witness.
.. . [H]e just said he [Collins] left the job for a long time in the
bathroom.” On redirect examination, Pertuit was not asked why
he entered “leaving the job without supervisor’s permission” as
the reason for Collins’ discharge on the ASI-22.
Fedrick testified (vol. 104) that, while Collins was on loan to
the pipe department, he was told by different leadmen that
Collins was lazy; after one of those reports, he contacted Foret
and:

I told [Foret] that he needed—that I had a welder that
they loaned to me, and I needed to let him go back to the
Welding Department because he wasn’t suitable for the
type of work that he was doing, he may be better off as a
welder than he was a pipe fitter helper. [I] gave [Foret] the
clock number, and the welder’s name—I told him his
name was Keith. And at that time he told me, “Okay, send
him back to the Welding Department” the following morn-
ing.

On cross-examination Fedrick was asked and he testified:

Q. As I understand it, you told Mr. Ernest Foret Sr. at
that time that Keith Collins had been working for you as a
pipe fitter helper, but you didn’t think he was suitable as a
pipe fitter helper and would better work out as a welder’s
helper. Is that correct?
A. No, it is not. I told him he would be better off as a
welder, not a welder’s helper. . . .
Q. And that was because of Mr. Collins’ skills as a
welder. Correct?
A. Correct.
Q. Did Mr. Ernest Foret say anything to you at that
time?
A. Just that he told me that he could probably use a
few extra welders, and work was starting to pick up, and
go ahead and send him back to the Welding Department
the following day.

At no point did Fedrick testify that he told Foret that he was
sending Collins back to the welding department because of the
reports of Collins’ work habits that he had received from his
leadmen.
On direct examination Foret (vol. 100) testified that, on the
day before Collins returned to the welding department, May 31,
he was approached by Fedrick. Foret was asked and he testi-
fied:

Q. What was discussed in that meeting?
A. That [Fedrick] said that the man missed time and he
wasn’t doing his work.
Q. And what if anything did you say?
A. I told him, “Well, if he is not doing his work, why
didn’t you write him up and fire the man?”
Q. What if anything did Fedrick say?
A. Says, “He belongs to you all. [He was] just loaned
to us. He said, I am going to send [Collins] back to you
all.”
Q. Do you recall if there was anything else said in that
conversation?
A. No. That is it.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1292
Foret’s testimony that Fedrick told him that he was sending
Collins back to the welding department because Collins was not
doing his work and “missed time” was not corroborated by
Fedrick. Fedrick did testify that he received reports from his
leadmen that Collins was lazy, but he did not testify that he
reported that to Foret. Fedrick did not testify that Collins had
“missed time” while he was in the pipe department, and, of
course, he did not testify that he told Foret that Collins had an
absenteeism problem while he was on loan to the pipe depart-
ment.
Foret further testified on direct examination that, sometime
later on May 31, he met Collins and told him that:

I told him he was coming back to the Welding De-
partment to Butch Cole. . . . And I told him looks like he
was having problems with the Pipe Department. . . . I told
Mr. Collins that if you are working for me, if you missed
that much time that Mr. Fedrick says, I says, I would have
to end up firing you.

This last answer was apparently offered in reply to Collins’
testimony that Foret told him, on June 1, that Fedrick should
have discharged him for absenteeism.
Foret further testified that he did not recall substituting for
Cole at any time and he did not recall that Collins ever attended
any employer campaign meeting that he conducted. Foret de-
nied knowing that Collins was a union adherent, and he denied
that he told Ramirez to discharge Collins because of his union
activities. On cross-examination Foret acknowledged that
Fedrick did not tell him how much time Collins had missed
when working in the pipe department. To the extent that
Fedrick and Foret differ, as described above, I credit Fedrick.
Collins’ Discharge—Final Credibility Resolutions
Collins was credible in his testimony that, after an employer
campaign meeting, Ramirez told him that forthcoming wage
increases depended on the results of the Board election. This
statement was pleaded as a threat of unspecified reprisals. It
was not “unspecified”; it was quite specific. Ramirez admitted,
however, that after an employer campaign meeting he told
Collins, without qualification, that he would do “what I could”
to keep the Union out. That was a threat of unspecified repri-
sals. It may have occurred at the same time that the threat to
withhold wage increases was made, or it may have been made
at a different time. It does not matter; the two categories of
threats are certainly not mutually exclusive. The threat of un-
specified reprisals that Ramirez admitted in his affidavit, which
I credit,339 necessarily occurred in March, after the organiza-
tional attempt began and before Collins was loaned to the pipe
department. I conclude that, as alleged, Respondent, in viola-
tion of Section 8(a)(1), by Ramirez, in March 1993, threatened
its employees with unspecified reprisals because of their union
activities. I further credit Collins’ testimony that, in the same
conversation, Ramirez told Collins that he would lie if he were
asked about what he had said. (The proof of Ramirez’ willing-
ness to lie under oath is discussed below.)
As quoted, Collins testified that, on June 1, after he had re-
turned to the welding department, Foret told him that he should
have been fired by Fedrick for absenteeism when Collins
worked in the pipe department. Foret testified that on May 31
he told Collins that he should have been fired for “problems”

339 See Alvin J. Bart & Co., 236 NLRB 242 (1978).
including absenteeism. Foret did not deny, however, that, at an
employer campaign meeting he told Collins that he should have
been fired by Fedrick for absenteeism. Foret only claimed lack
of memory about employer campaign meetings that he may
have conducted while substituting for Cole. Moreover, Collins
testified that Ramirez was sitting next to him at the June 1 em-
ployer campaign meeting at which the alleged threat occurred;
Ramirez did not deny Collins’ testimony. I credit Collins who
had a credible demeanor when testifying on the point. (To the
extent that Foret Sr’s. testimony about his May 31 remarks to
Collins can be construed as a denial of the June 1 remarks that
Collins attributes to him, I discredit it.) There was no express
reference made to the Union or to the union activities of Collins
(or any other employee) in Foret’s statement to Collins on June
1 at the employer campaign meeting; however, as I find infra,
Ramirez told Collins that he, and presumably Foret, had heard
that Collins had been talking about the Union while Collins was
on loan to the pipe department. Foret told Collins that he should
have been discharged by the pipe department for conduct that
had not taken place there.340 This statement necessarily took on
a coercive nature when Ramirez told Collins that he had been
accused of talking about the Union while he was in the pipe
department. I therefore conclude that, in violation of Section
8(a)(1), Respondent, by Ernest Foret Sr., on June 1, 1993,
threatened its employees with discharge or unspecified reprisals
if they continued to assist the Union.
Collins testified that, when Ramirez discharged him in the
work area on the platen and Collins then complained that he
had been working well for 9 years, Ramirez responded that
while Collins had been assigned to the pipe department, “[t]he
pipefitters say you didn’t want to work; all you wanted to do
was talk about the Union.” On direct examination, in an at-
tempted denial of this testimony, Ramirez evasively testified
that “I didn’t say ‘another pipefitter foreman,”’ but he did not
deny that he had said that “pipefitters” had said that all that
Collins wanted to do was talk about the Union. Further Ramirez
was carefully led to deny that he had made such a statement at
the toolroom; he did not deny that he told Collins on the platen
that pipefitters had complained that all he wanted to do was talk
about the Union. I credit Collins.
Current employee Roland testified that on June 1, after
Collins had been discharged, Ramirez told Ernst (and the other
riders in the van) that he had discharged Collins because Foret
had told him to do so, and Roland testified that Ramirez then
further told the members of the van pool that Foret had told him
that the reason for the discharge was that Collins was “involved
with that Union.” Ramirez and Ernst denied that this event
occurred, but I found that Roland had a more credible de-
meanor, and he was a current employee who had nothing ap-
parent to gain, and much to lose, by his testimony. Moreover,
Ramirez’ willingness to lie is demonstrated by his previously
telling Collins that he would do exactly that, as Collins credibly
testified. One might argue with this conclusion’s being made on
the basis of a credibility resolution, but the record contains even
a better demonstration of Ramirez’ willingness to lie under
oath. As discussed below in the case of alleged discriminatee
Mark Cancienne, Ramirez told employee Lawrence Arabie that

340 Collins had not had an absenteeism problem in the pipe depart-
ment and, until he was led away from it, Fedrick testified that he sent
Collins back to welding only because his talents would be better util-
ized there
AVONDALE INDUSTRIES

1293
Cancienne had been transferred to his supervision to be dis-
charged for his union activities. When he was called as a wit-
ness by the General Counsel (vol. 59), Ramirez denied that he
had made this admission; then Ramirez admitted the remark
when a surreptitious recording of the admission was played for
him. That is, I believe that Ramirez’ willingness to lie under
oath about his admission about Cancienne’s transfer proves his
willingness to lie about his admission about Collins’ discharge.
I credit Roland.
Collins’ Discharge—Conclusions
Collins credibly testified that at an employer campaign meet-
ing in early March, which meeting was conducted by Cole
(Collins’ general foreman), Brown and Dolese, Collins com-
plained about lack of a wage increase and nepotism and stated:
“That is why I think we need a union, because the Company
[doesn’t] seem to be trying to change to ease our problems.” As
he discharged Collins, and Collins complained that the stated
basis for the discharge was invalid, Ramirez replied, “There is
more to it than that. The pipefitters say you didn’t want to
work; all you wanted to do was talk about the Union.” This is
the clearest evidence that, at the time of his discharge, Respon-
dent suspected Collins of prounion sympathies and union ac-
tivities. There is abundant evidence of antiunion animus in this
case; of course, no stronger evidence of knowledge of, and
specific animus toward, an employees’ prounion sympathies
can exist than Ramirez’ statement to Ernst (and to Roland and
to other riders in the van pool) that he had fired Collins because
Foret had told him to do so because Collins was “involved with
that Union.” I conclude that a prima facie case of violative
discrimination against Collins exists in the record, and the bur-
den shifts to Respondent to demonstrate by a preponderance of
the evidence that it would have taken the same actions against
Collins even in the absence of his known protected activities.
Respondent’s defenses must therefore be examined.
I find that on June 1 Collins was absent from his job (going
to, being in, and returning from, the restroom) for 30 minutes, a
time that Ramirez, and Respondent, reasonably considered to
have been excessive. This finding, however, hardly ends the
inquiry.
Respondent advanced no denial of Collins’ testimony that on
June 1, the day that Collins returned to the welding department
from the pipe department, Cole was absent and Foret substi-
tuted for him. (To the extent that certain testimony by Foret
could be construed to constitute such a denial, I discredit it.) On
that day Foret conducted an employer campaign meeting in
which he told Collins that Pipe Department General Foreman
Fedrick had complained that Collins had missed “a lot of time.”
Fedrick, however, did not testify that he made any complaints
to Foret about Collins; and, in fact, Collins received no disci-
pline from the pipe department supervisors for his attendance
during the period that he was on loan there. It is clear enough
that Foret was searching for a pretext to discharge Collins when
Collins returned to the pipe department on June 1, and, as I
have concluded above, Foret then threatened Collins with dis-
charge in violation of Section 8(a)(1).
As the substitute for Cole on June 1, Foret became the im-
mediate superior of Ramirez. On that day, I find, Foret told
Ramirez to discharge Collins because Collins was “involved
with that Union.” I arrive at this finding on the basis of current
employee Roland’s credible testimony of Ramirez’ admission
to Ernst and the other members of the van pool, which admis-
sion would not have been made if it had not been true. Ramirez
discharged Collins immediately upon his return from the rest-
room; therefore the instruction from Foret must have come
before Collins left for the restroom. There was plenty of time
for Foret to have given this instruction during the morning of
June 1; he could have given it between the start of the shift and
the beginning of the employer campaign meeting that Foret
conducted, and he could have given it between the point in time
at which the meeting was concluded and the point in time at
which Collins left for the restroom. (Ramirez’ careful denial
that Foret spoke to him about Collins “[b]efore he was sent
back to me” is meaningless, except for its demonstration of
Ramirez’ willingness to evade telling the truth (and Respon-
dent’s willingness to structure its direct examination of Rami-
rez accordingly). Also meaningless is testimony by Foret that
he did not recall speaking to Ramirez about Collins before
Collins was discharged.)
Nevertheless, even though Foret had previously instructed
Ramirez to discharge Collins because of his union activities, if
Collins thereafter engaged in conduct which otherwise would
have precipitated his discharge even absent his union activities,
his discharge for that conduct would not violate the Act.341
Therefore, the issue under Wright Line remains: has Respon-
dent shown that it would have discharged Collins even absent
his known or suspected union activities?
“Deliberate loafing” is an immediate discharge offense under
the Avondale Employees’ Guide, but, on brief, Respondent
does not argue that Collins was discharged for an immediate
discharge offense; instead, Respondent argues that Collins was
discharged for staying in the restroom for 35 minutes and
“Collins’ supervisors considered Collins’ consistent pattern of
walking off the jobs during working hours.” Also, Ramirez
testified that he told Collins that he was being discharged be-
cause of his “past record,” and Ramirez further testified that he
discharged Collins because of his “history.” Therefore, it is
clear that Ramirez did not consider Collins’ conduct on June 1,
standing alone, to be immediate grounds for discharge.
On the ASI-22 (discharge) form that Pertuit completed and
sent to the human resources department, Pertuit wrote as the
explanation for Collins’ discharge: “Leaving job without super-
visor’s permission.” Ramirez admitted, however, that Collins
had not needed advance permission to go to the restroom on
June 1, and the entry of this reason is entirely suspicious. As-
suming, however, that there is some relation between Collins’
conduct and what Pertuit wrote on the ASI-22 form, it is to be
noted that the only comparable description of an offense under
the Avondale Employees’ Guide is general offense-4; to wit:
“Wasting time, loitering or leaving the working place without
permission.” Therefore, it is clear that, at the time of the dis-
charge, Respondent considered Collins’ conduct to have been
the equivalent of some general offense under the Avondale
Employees’ Guide, probably general offense-4. Respondent’s
established progressive disciplinary system necessarily applied
to such general offenses.
Ramirez’ two-fold explanation for his failure to follow the
progressive disciplinary system (or “judgment call,” as Ramirez
phrased it) was that : “[1] I just got tired of putting up with the
way he was conducting himself on the job. [and (2)] When he
bypassed me, I felt he owed me an explanation.” In regard to

341 See A & T Mfg. Co., 276 NLRB 1183 (1985), as it discusses
Wright Line and cites Klate Holt Co., 161 NLRB 1606, 1612 (1966).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1294
Ramirez’ first reason for not affording to Collins the benefit of
Respondent’s formal progressive disciplinary system, it is to be
noted that Collins had not been under Ramirez’ supervision for
as much as a year on the morning of June 1; and on June 1
Collins worked for less than a half-day (given the facts that
Collins did not arrive at the welding department until some
point after 7:30 a.m., and that some of the morning was con-
sumed by the employer campaign meeting that Foret con-
ducted, and that Collins was discharged by 11:45 p.m.). The
only misconduct during that morning that preceded Collins’ trip
to the restroom, according to Ramirez’ testimony, was Collins’
one-time failure to mark his employee number on some com-
pleted welds. According to Collins’ credited testimony, how-
ever, Collins had marked his welds before going to the rest-
room, and this was demonstrated to Ramirez when Collins
returned to the work area from the restroom. Therefore, even
assuming that Collins had failed to mark welds earlier in the
morning, he corrected his conduct after being orally reminded
to do so before he left for the restroom. That is, the only mis-
conduct with which Ramirez had been “putting up” had been
corrected. To the extent Ramirez was referring to conduct in
which Collins had engaged as much as a year prior to June 1, it
is to be noted that Ramirez admitted that, even when warning
notices are issued, they are not held against an employee for
more than a year; here, the only warning notice that Collins had
received during the prior 12 months was a March 25 warning
notice for absenteeism (something that was apparently cor-
rected by that warning notice). To the extent that Ramirez
might have been referring to the way that Collins had been
conducting himself while working in the pipe department, it is
to be noted that: (1) Collins was not disciplined for anything
when he was on loan to the pipe department, and (2) Fedrick
did not tell Foret that Collins had been guilty of any infraction
in the pipe department. (I have discredited Foret’s uncorrobo-
rated testimony to the contrary.)
In regard to Ramirez’ second reason for not affording Collins
the benefit of Respondent’s progressive disciplinary system, it
is to be noted that, even according to Ramirez’ testimony, there
was no way that Collins could have known that Ramirez knew
how long Collins had been gone to the restroom, and there was
no way that Collins would have known that he was being
waited for to begin a job that needed to be started immediately.
(Ramirez admitted that he saw Collins walking away, toward
the restroom, but he did not call to Collins and apprize him of
any factor that would indicate any urgency; e.g., “Hurry up and
get back here; we need you to start on Cortez’ urgent job.”)
Therefore, when he returned from the restroom, Collins would
not have known that he needed to volunteer an explanation for
the length of his absence. (It is further to be noted that Cortez
did not corroborate Ramirez’ testimony that the job was, in
fact, urgent.)
Ramirez admitted that when warning notices are issued, the
employees “sometimes” correct their ways. (Specifically, Ra-
mirez admitted that during the 2 years before his discharge,
Collins “got good” if Ramirez was “getting ready to give him a
citation.”) Improved performance is the purpose of the formal
progressive disciplinary system that is contained in the Avon-
dale Employees’ Guide. Respondent has offered no credible
reason why the benefit of its progressive disciplinary system
was not afforded to Collins. In a context of animus such as that
which is found in this case, the failure to afford a known union
adherent the benefit of a progressive disciplinary system raises
a strong inference of unlawful motivation.342 Collins was a
known union adherent,343 and I do draw that inference.
The General Counsel has further demonstrated that other
employees were allowed to be absent from a job for as much as
30 minutes without any discipline beyond a warning notice.
According to warning notices that the General Counsel placed
in evidence during his rebuttal: (1) On July 29, 1992, paint
department employee Paulette Washington was issued a general
offense-4 warning notice for being away from the job for 3-1/2
hours. (2) On the same date, and apparently on the same occa-
sion, paint department employee 11061344 was issued a general
offense-4 warning notice for the same conduct. (3) On January
16, 1992, paint department employee 4227 was issued a general
offense-4 warning notice for doing no work for 4 hours. (4) On
July 12, 1991, electrical department employee Joe Hirstus was
issued a warning notice, with recommendation for discharge for
being away from his work area for 4-1/2 hours; Hirstus was not
discharged even though, within 30 days thereafter, he was is-
sued another warning notice for leaving the work place without
permission. (5) On February 24, 1992, paint department em-
ployee 10210 was issued a general offense-4 warning notice for
being out of his work area for “over two hours.” (6) On March
25, 1992, electrical department employee Robert Bennett was
issued a general offense-4 warning notice for being out of his
area for 1 hour and 25 minutes. (7) On May 11, 1990, pipe
department employee W. J. Bradley was issued a general of-
fense-4 warning notice for being out of his work area for 45
minutes. (8) On April 2, 1991, sheet metal department em-
ployee Raymond Hill was issued a general offense-4 warning
notice for being away from his work area for “over (1) one
hour.” (9) On April 26, 1990, pipe department employee Felicia
Nicholas was issued a general offense-4 warning notice for
being away from her work area for 45 minutes. (10) On Febru-
ary 17, 1994, shipfitting department employee Ronnie Davis
was issued a general offense-4 warning notice for being out of
his work area for 2 hours. (11) On October 19, 1990, electrical
department employee Howard Williams was issued a general
offense-4 warning notice for not making his way to his job
assignment for 1 hour. (12) On May 29, 1992, employee 9827
was issued a general offense-4 warning notice for being out of
his work area “for over 50 minutes.” (13) On July 19, 1993,
CDC employee 4757 was issued a general offense-4 warning
notice for being in restroom “for over 30 minutes.” (14) On
September 25, 1990, paint department employee 712 was is-
sued a general offense-4 warning notice for being away from
his work area “for 1 hour, 17 minutes.” (15) On July 31, 1991,
operators department employee Fulton Saul was issued a gen-
eral offense-4 warning notice for being out of his work place
for 1 hour. (16) On January 2, 1991, shipfitting department
employee James Jackson was issued a general offense-4 warn-
ing notice for being absent from his work area for 40 minutes.
(17) On February 21, 1992, shipfitting department employee
Robert Witherell was issued a general offense-4 warning notice
for being “off of job site for 25 to 30 minutes;” within the 12
months before the issuance of that warning notice, Witherell

342 See Yukon Mfg. Co., 310 NLRB 324 (1993).
343 Again, Collins spoke out for the Union at an employer campaign
meeting, and, when Collins returned from the pipe department, Ramirez
accused him of talking about the Union rather than working.
344 Most of the paint department warning notices, and many of the
warning notices from other departments, bear no employee name, only
employee badge numbers.
AVONDALE INDUSTRIES

1295
had been issued another general offense-4 warning notice for
wasting time (marked “Final Warning”) and he had been issued
another general offense-4 warning notice for “wasting time,
leaving work place without permission, stopping another em-
ployee from working” (the amounts of time wasted are not
indicated on the warning notices that preceded Witherell’s Feb-
ruary 22, 1992 warning notice; after those three warning no-
tices Witherell was issued two major offense-2 warning notices,
both marked “Final Warning” (in all, Witherell was issued four
“Final” warning notices between January 28, 1991, and Octo-
ber 7, 1992). (18) On May 22, 1992, electrical department em-
ployee M. Pierce (employee 1133) was issued a general of-
fense-4 warning notice for leaving his work area for 35 min-
utes. (19) On July 1, 1992, employee 1366 was issued a general
offense-4 warning notice for taking “35 minutes going to rest-
room” and [before or after that he] “was not working, just
standing around.” (20) On September 7, 1990, electrical de-
partment employee Ozell Daniels was issued a general offense-
4 warning notice for being out of his work area for 45 minutes;
Daniels had also been issued another general offense-4 warning
notice within the preceding 30 days. (21) On April 30, 1992,
paint department employee 9337 was issued a general offense-4
warning notice for being out of his work area “for over 1 hour
and 15 minutes; whereabouts were unknown to foreman.” (22)
On July 31, 1991, operators department employee Donald
Richardson was issued a general offense-4 warning notice for
being out of his work area for “one hour.” (23) On May 3,
1994, electrical department employee Wayne Toupe was issued
a general offense-4 warning notice for being away from his
work area for 40 minutes to use the telephone, and “[h]e did not
notify supervisor or his helper that he was leaving,” according
to the warning notice. (24) On November 25, 1991, outside
machinist Tommy Barnes was issued a warning notice (with no
offense-number designated) because he left the work area for
“35 minutes without supervisor’s authorization.” (25) On De-
cember 23, 1992, electrical department employee Gregory
Hines was issued a general offense-4 warning notice for being
away from his work area “from 12:45 to 2:15.” (26) On March
16, 1993, electrical department employee A. Hughes was issued
a general offense-4 warning notice for being away from his
work area for one-half hour before his lunch period and 7 min-
utes after the lunch period; on July 1, 1993, Hughes was issued
another general offense-4 warning notice, but it does not say
how long he was away from his work area. (27) On May 22,
1990, electrical department employee Robert Gaudin was is-
sued a general offense-4 warning notice because, as the warn-
ing notice states: “Mr. Gaudin signed the MCR at 6:00 a.m. and
disappeared for the rest of the day. We didn’t find him until he
came to sign out at 2:00 p.m.” (28) On July 12, 1990, outside
machinist Frank Clark was issued a general offense-4 warning
notice for being away from his work area for 55 minutes. (29)
On January 31, 1992, operators department employee Dale
Bauer was issued a major offense-2 warning notice (marked
“Final”) for “hiding and loitering” for an unspecified time. (30)
On May 2, 1990, electrical department employee Bruce Pablo
was issued a general offense-11 warning notice for “Unauthor-
ized exit from Company premises” from 2:30 to 3:30 p.m.
(quitting time). (31) On February 13, 1992, shipfitting depart-
ment employee Randy Howey was issued a general offense-4
warning notice because he “left work area for 30 min.,” accord-
ing to the warning notice. (32) On March 24, 1993, insulation
department employee 1857 was issued a general offense-4
warning notice because “[w]ithout permission, left his job for
30 minutes.” (33) On October 21, 1991, paint department em-
ployee 9927 was issued a general offense-4 warning notice
because “[e]mployee left the job site for over 30 minutes with-
out permission,” according to the warning notice. (34) On July
7, 1992, paint department employee 5614 was issued a general
offense-4 warning notice because he “left work area without
permission for over 45 minutes.” (35) On March 30, 1992,
paint department employee Helen Hudson was issued a general
offense-4 warning notice because she “went to the restroom and
was [away from] the work area for over 40 minutes,” according
to the warning notice. (36) On September 25, 1990, paint de-
partment employee L. M. Firven was issued a general offense-4
warning notice because he “left the job site for 1 hour without
permission.” (37) On June 3, 1991, pipe department employee
435 was issued a general offense-4 warning notice for “Leaving
working place without permission” for 1 hour and 10 minutes.
(38) On January 22, 1992, paint department employee 2006
was issued a general offense-4 warning notice for being absent
from his work area without permission for 45 minutes. (39) On
July 29, 1992, paint department employee 3852 was issued a
general offense-4 warning notice because he “left the work
place assigned at [7:30 a.m.] and was not seen again until
[11:00 a.m.],” according to the warning notice. (40) On April 8,
1992, paint department employee 4858 was issued a general
offense-4 warning notice for being out of his work area “for
over an hour,” the notice is marked “Final Warning.” (41) On
May 30, 1991, paint department employee 1809 was issued a
general offense-4 warning notice because he “was walking
around vessel for at least 45 minutes before returning to work
area from restroom break,” according to the warning notice;
this employee had been issued warning notices on the preced-
ing March 19 and April 2 for absenteeism and tardiness, and
the latter of those two warning notices was marked “Final
Warning,” the employee was issued two warning notices sub-
sequent to his May 30, 1991, warning notice, one on June 19,
1991, for absenteeism, and one on July 1, 1991, for lack of
production. (42) On June 24, 1991, paint department employee
10543 was issued a general offense-4 warning notice for wast-
ing time, “1:00 p.m. to 2:20” and “2:45 to 3:20,” according to
the warning notice; this employee had been issued four other
warning notices for various reasons during the preceding 3
months. (43) On August 1, 1991, paint department employee
12148 was issued a general offense-4 warning notice because
he was “out of work area for over an hour. He was found in
another work area interfering with production of other employ-
ees,” within the following 4 months, the employee was issued
four other warning notices for various offenses. (44) On Febru-
ary 14, 1992, paint department employee 5748 was issued a
general offense-4 warning notice for “walking around for
approx. 1 hour before starting to work,” according to the notice;
within 2 weeks the employee was issued two other warning
notices for various offenses. (45) On April 24, 1991, paint de-
partment employee 9146 was issued a general offense-4 warn-
ing notice for being “missing in work area for 30 minutes or
more-Whereabouts unknown,” according to the warning notice;
this employee had been issued 10 other warning notices in the 7
months prior to April 24, 1991; one of the six prior warning
notices was for general offense-5, quitting work early, and five
of the six prior warning notices were for general offense-4 vio-
lations (although the amounts of time wasted are not specified
on those five other warning notices). (46) On August 9, 1991,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1296
shipfitting department employee 10400 was issued a general
offense-4 warning notice for taking 1 hour and 25 minutes to
begin a job assignment; this employee had been issued another
wasting-time warning notice within the preceding 6 months,
and another during the month following; i.e.,this employee was
issued three wasting-time warning notices within 12 months.
(47) On September 25, 1990, paint department employee Ab-
bey Howard was issued a general offense-4 warning notice for
being away from the job for 1 hour and 25 minutes.
Several of the alleged discriminatees in this case were also
issued warning notices, rather than discharged, for wasting
more time that 30 minutes: (48) On October 1, 1993, discrimi-
natee, and paint department employee, Marshall was issued a
general offense-4 warning notice, rather than discharged, for
being in the restroom for 45 minutes. (49) On October 27,
1993, the day of her discharge, Marshall was absent from her
work place for 40 minutes; her supervisors testified that, but for
her prior warning notices, Marshall would have only been is-
sued another general offense-4 warning notice. (50) On April
15, 1994, alleged discriminatee, and electrical department em-
ployee, John Joseph was issued a warning notice, rather than
discharged, because “Employee disappeared for the last 35
minutes of work shift,” according to the warning notice. (51)
On March 11, 1993, alleged discriminatee, and pipe department
employee, Eddie Johnson was issued a warning notice, rather
than discharged, for being away from his job from “12:30 . . .
until 1:32,” according to the warning notice. (52) On July 23,
1993, alleged discriminatee, and electrical department em-
ployee, Kevin Lockett was issued a general offense-4 warning
notice, rather than discharged, when his supervisor could not
find him “for over two hours.”345
Ramirez testified that 15 minutes to use the restroom was
permissible; therefore, although Collins was away from his job
(with permission) for 30 minutes, his period of unexcused ab-
sence was only 15 minutes. The above listing, however, dem-
onstrates that a significant number of employees were absent
from their jobs, without permission or other excuse, for 30
minutes or more (not 15 minutes, like Collins); many of those
other employees (as opposed to Collins) had prior (or subse-
quent) documented histories of similar conduct and warnings
(including “Final” warnings); and none of those other employ-
ees were discharged for their 30-minute (plus) absences. All of
which is to say that, by Ramirez’ “judgment call” that Collins
was to be discharged rather than issued a warning notice,
Collins was treated disparately. This disparate treatment raises
another inference of unlawful motivation in the discharge of
Collins.
Therefore, there are three separate inferences that Collins
was discharged unlawfully: (1) the inference that is raised by
the denial of the benefit of the progressive disciplinary system
to Collins; (2) the inference that is raised by the disparate
treatment of Collins; and (3) the inference that is raised by Ra-
mirez’ admission to the van pool members that Collins was
discharged because he was “involved with that Union.” I do
draw all three of these inferences.
I further find that all three of the separate inferences of
unlawful motivation are fortified by other factors in the record

345 Respondent contends that the treatment of alleged discriminatees
cannot be compared because all of them are alleged by the General
Counsel to have been prounion. Even if this were a valid criticism,
Respondent denies knowledge of the prounion sympathies of all of the
alleged discriminatees mentioned in this paragraph.
that the reason assigned for Collins’ discharge is a pretext; to
wit: (1) Upon his return to the welding department Collins was
told by Foret that he should have been discharged for absentee-
ism in the pipe department; absenteeism was not a problem for
Collins when he was in the pipe department, and, certainly,
Fedrick did not testify that it had been. (And Fedrick, of course,
did not testify that he told Foret that Collins had an absenteeism
problem while on loan to the pipe department.) Clearly, when
he told Collins that Fedrick should have discharged him for
absenteeism, Foret was foisting about for a pretext for discharg-
ing Collins. (2) Further evidence of pretext is found in Collins’
credible testimony that, as he was discharging Collins, Ramirez
groped for other reasons to add to the restroom offense; in do-
ing so, Ramirez came up with no better than the uncorrobo-
rated346 claims of Collins’ misconduct in the pipe department
and a false assertion that Collins had failed to mark his com-
pleted welds. (3) Ramirez admitted that before he disciplines
employees he gives them a chance to explain their conduct; as
well as offering only incredible reasons for not affording to
Collins the benefit of Respondent’s progressive disciplinary
system, Ramirez offered no reason why he did not allow
Collins to explain his conduct. (4) Pertuit and Nunez attempted
justifications of the discharge by references to Collins’ warning
notices that dated back to 1988; they attempted such justifica-
tion, even though Respondent’s policy is that warning notices
that are more than 12 months old are not to be used against
employees. Ramirez acknowledged the existence of this policy
on cross-examination, and, as noted in the introductory section
of this decision, Foret testified: “In other words, every month to
the year, the old ones are torn away and are no good. After a
year, the citations are no good.” (And, as further noted in the
introductory section, Respondent’s lawyers made the same
concession.) (5) Ramirez testified that part of the reason that he
decided to discharge Collins was that, during the time that
Collins was assigned to the pipe department, he saw Collins
walking toward the restroom “four or five times a day.” On
cross-examination, however, Ramirez admitted that Collins
could have been going for parts or supplies, as pipe department
helpers are required to do. Also, during the time that Collins
was assigned to the pipe department, he received no warning
notices for being away from the job unnecessarily. It is clear
that Ramirez’ assertion of this reason for the discharge was just
another attempt to construct a pretext for the discharge. (6)
Ramirez testified that he does not consider warning notices that
employees receive from other supervisors, even if those warn-
ing notices are received within 12 months of an infraction that
is committed while the employees are working under him. Ra-
mirez, inconsistently testified, however, that he held Collins’
alleged loafing in the pipe department against Collins, even
though the pipe department did not issue Collins a warning
notice for loafing (or anything else). (7) Although he was twice
given an opportunity on direct examination to state his reasons
for discharging Collins, Ramirez left out Collins’ alleged fail-
ures to mark welds; Ramirez’ assertion of that reason on cross-
examination is further evidence of its pretextual nature. (8)
Further evidence of pretext is found in the fact that Pertuit re-
cited on the ASI-22 (discharge) form as the reason for Collins’
discharge: “Leaving job without supervisor’s permission.” Ra-
mirez testified that Collins had not needed his permission to go

346 The testimony of Fedrick was received for the report only; it was
hearsay as to Collins’ actual performance in the pipe department.
AVONDALE INDUSTRIES

1297
to the restroom, and he had no idea why the quoted language
was included on the ASI-22 form. Also Pertuit testified that
Ramirez had only told him that Collins’ staying in the restroom
too long was the reason for the discharge. What the reference to
“leaving job without supervisor’s permission” demonstrates is
that Pertuit really did not care what he put down on the form;
any reason was apparently good enough.
Accordingly, I find that Respondent has failed to show that it
would have discharged Collins even absent his known or sus-
pected union activities. I therefore conclude that Collins was
discharged in violation of Section 8(a)(3).
b. Leroy Clark’s discharge for reading a newspaper
during a break
Leroy Clark (vol. 10) was employed as an electrician until he
was discharged on January 10, 1994.347 The second complaint,
at paragraph 134, alleges that by discharging Clark Respondent
violated Section 8(a)(3). The General Counsel contends that
Respondent discharged Clark because of his known union ac-
tivities and expressions of sympathy which included his making
prounion comments at an employer campaign meeting and his
expressing union sympathies directly to a supervisor. Respon-
dent denies knowledge of any prounion sympathies that Clark
may have held. Respondent further answers that Clark was
discharged solely because he was found reading a newspaper
when he should have been working, and that this happened
shortly after Clark had received a warning notice for similar
conduct. The General Counsel concedes that Clark was found
reading a newspaper by a supervisor, but the General Counsel
replies that the newspaper-reading defense is a pretext. The
General Counsel contends that, although Respondent has no
established breaks other than lunch, employees such as Clark
were permitted “informal” breaks, that Clark was taking such a
break when he was found reading a newspaper, and that he was
not supposed to have been working at the time. The General
Counsel contends that employees, previously and subsequently,
were allowed to read newspapers with impunity, at least on
breaks. The General Counsel further contends that Clark was
disparately treated because other employees who were found
reading newspapers during working time were only issued gen-
eral offense-4 warning notices under the Avondale Employees’
Guide. Ultimately, I find and conclude that Clark was treated
disparately, that the reasons asserted for Clark’s discharge were
a pretext, and that Clark was discharged in violation of Section
8(a)(3).
Clark testified that from early in the campaign he wore union
stickers, but only inside of his hardhat. He also placed union
stickers in, but not on the outside of, his lunchbox. Clark also
testified that 2 weeks prior to the June 25 Board election Elec-
trical Department Superintendent Robert Terry addressed a
group of electricians with whom Clark had been working. Ac-
cording to Clark, he spoke up at the meeting, and:

My comment was that the time and money that was
being spent on those meetings were good, but I also stated
that the time and money could have been spent before this
particular period and avoided what they call now a union
problem.

Terry denied that any employee ever said any such thing to
him, but I found Clark credible.

347 All dates mentioned in Clark’s case are between March 1, 1993,
and January 10, 1994, unless otherwise indicated.
Clark further testified that about 2 days after Terry’s meet-
ing, his then-foreman, P. J. Sprunk, approached him individu-
ally. According to Clark:

Well, first thing he said to me was: “You are not for
this union business, are you?”
[M]y statement to him was that I was displeased with
the fact that I made 7.44 an hour as a third-class electrician
and I was doing first-class work from the time that I was
hired, and I gave him some examples, how you had people
in the cleaning department that actually made more money
than myself. And my final statement was, “You know I am
going to vote for this union.”

Clark further testified that during the week before the Board
election, when he was with two other employees, he was ap-
proached by Sprunk and offered a Vote No sticker. Clark de-
clined the offer. No interrogation allegation is based on either
of these alleged communications to Clark by Sprunk. Sprunk
did not testify, and this testimony by Clark is undenied, and I
credit it.
Clark’s Discharge—Background
From October through January, Clark’s foreman was Joe Lo-
cantro. Before January, Locantro reported to General Foreman
Mark Poche, but Locantro reported to General Foreman James
Kelly in January, the month of Clark’s discharge. Kelly and
Poche, of course, reported to Terry. Terry, Kelly, and Poche
testified, as previously mentioned, but Locantro did not.
“Containers” are essentially boxcars with their undercar-
riages removed. Containers are used around the yard for storage
and offices for foremen. As Terry acknowledged, although
there are no formal break periods, employees are permitted up
to 15 minutes in the morning, around 9 a.m., for a break. Clark
testified that in October, Locantro conducted a meeting of the
employees on his crew. Locantro discussed assignments and
breaks. According to Clark: “Specifically what he said concern-
ing breaks was he did not mind us taking our breaks between
9:00 and 9:30 , having a little sandwich or a little drink, as long
as we don’t make a meal out of it.” Clark testified that when
working on Locantro’s crew, about 9 a.m., the employees
would take breaks lasting “[t]en, fifteen minutes at most.” The
employees on Locantro’s crew, Clark testified, took their morn-
ing breaks in a container assigned to Locantro; they would eat
sandwiches and drink sodas. As Locantro did not testify, this
testimony by Clark stands undenied; I found the testimony
credible.
On December 14, Locantro issued a warning notice to Clark.
Quoting major offense-2 of the Avondale Employees’ Guide,
Locantro wrote as the reason for warning:

Intentional negligence, inefficiency or failure to com-
plete job assigned. Assigned man to grind 4” welds off
foundations that should have taken 3 hours. Man took 8
hours and only accomplished half.

Poche signed as the witness to this warning notice. The issu-
ance of this warning notice is not alleged as an unfair labor
practice by the General Counsel, but Respondent depends on it
as background for Clark’s ultimate discharge. Clark testified
that when Locantro and Poche presented the warning notice to
him for signature, the three men got into a heated argument.
Later, further according to Clark, Kelly told him, “not to worry,
that that particular write-up had been thrown out.” Kelly denied
this testimony, but I credit Clark. As noted above, copies of all
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1298
warning notices are furnished to the human resources depart-
ment for recording on the employees’ personnel cards. Clark’s
personnel card does not reflect that the December 14 warning
notice was processed to the human resources department. Al-
though counsel for the General Counsel clearly stated the rele-
vance of the personnel card at the time that he offered it, Re-
spondent suggests no reason why it does not reflect that such a
warning notice was processed. I believe Clark’s testimony; I
find that Kelly told Clark that the warning notice would be
thrown out, but, rather than throwing it out, Kelly (or Poche or
Locantro) retained a copy, and the original of the December 14
warning notice was never processed beyond Kelly until some
time after Clark’s discharge.
Clark’s Discharge—the General Counsel’s Evidence
Clark testified that on January 10 Locantro was absent. Clark
and fellow employees Ray Rorak, Donald Moore, and an em-
ployee whom Clark knew only as “Renaldo,” were assigned to
uncrate several transformers and prepare them for hoisting onto
a ship. At 9 a.m., according to Clark, “We all went on break.”
All four employees walked toward Locantro’s container. Lo-
cantro’s container is divided, according to Clark, into a “cleri-
cal side” and a “storage side”; the two sides are separated by a
partition. The other three employees went to the clerical side;
Clark went to the storage side. Clark was asked and he testified:

Q. And what, if anything, did you do once in the stor-
age side of the container?
A. Well, on my side, I saw a newspaper, started glanc-
ing at it.
Q. And about how long did you do that?
A. About three minutes.
Q. And what if anything happened then?
A. About 9:03, I guess—I don’t know—Mark Poche
walked by . . .; he looked in; he said, “Hey, you know, you
can get fired for that.” And I said, “I don’t want to lose my
job.”
Q. And after you said that, what, if anything, did you
do then?
A. Well, he just kept going, and so I walked around,
went into the container, saw the other three guys taking
their break, one of them eating a sandwich, the other one
got his feet on the table, other one sitting at a desk. I told
them what had happened. I said, “Mark just threatened me
with my job; we need to get back to work.”
Q. And after you said that to the other men, what hap-
pened?
A. They followed suit. They all came back out; we
went back to work. I think Ray [Rorak] stayed behind, did
paperwork.

Poche’s testimony about this incident will be discussed below;
neither Rorak nor the other employees testified.
About 40 minutes later, Poche and Kelly met Clark. The two
general foremen told Clark to collect his tools and come with
them to Terry’s office. Clark asked why, but Poche and Kelly
would not tell him. When the three men got to Terry’s office,
further according to Clark:

The conversation that took place once I entered Bob
Terry’s office, he asked me a question. He says, “Is it true
what Mark Poche saw?”
And I said yes, and as I was trying to explain, he cut
me off, and said, “You are fired, you know.” . . .
I told Mr. Terry that I had been working for Avondale
for 17 months and had never had a write-up, and I wanted
to know why I was being fired and why I could not have
been written up like everyone else. I . . . said, “What about
them other three guys,” okay.
And he says, “Well, you could have been picking up
trash, you know.” That was his comment. . . .
I asked Bob Terry again—you know, I wanted to talk.
He said he had heard enough. “You are fired.”
So I ended up back in the other room. Yes. They put
me back in the anteroom. And James Kelly came and he
had a warning notice. And he wanted me to sign it. . . .
I signed the warning notice, with comments.

The warning notice that Kelly then presented to Clark was
signed by Poche and Kelly. Partially quoting immediate dis-
charge offense-2 of the Avondale Employees’ Guide, the warn-
ing notice states as the reason for the warning:

Deliberate loafing during hours of work. Mr. Clark
was observed sitting in the material storage container read-
ing the sports section of the newspaper. It is unknown the
length of time Mr. Clark had been in the storage container.

Clark was then escorted from the premises.
Clark’s Discharge—Respondent’s Evidence
Poche (vol. 77) testified that on January 10, as he was walk-
ing by a building, not a container, he saw Clark reading a
newspaper. Poche testified that he had been on his way to talk
to an employee who was in an office in the building, one or two
doors down from where Clark was sitting. He walked beyond a
doorway and “I caught something out of the corner of my eye.”
This was Clark, sitting on a bucket and reading the sports sec-
tion of a newspaper. Poche testified that he went beyond
Clark’s doorway to the next, stayed for about a minute, then
returned to the doorway where he had seen Clark. Poche was
asked and he testified:

Q. When you came back, what conversation took place
between you and Mr. Clark?
A. I asked him what he was doing. He said, “I am tak-
ing a break reading the paper.” . . .
I told him there are no breaks during company hours to
read the paper. I asked him, what was he supposed to be
doing. He said he was supposed to be wrapping equip-
ment. . . .
[I told Clark:] “Then do what you have to do and put
the paper down.”
[Clark] put the paper down and walked outside again,
began wrapping the equipment that he was supposed to be
wrapping in the first place.

Poche testified that he went next door and asked three employ-
ees there what Clark was “supposed” to be doing and they also
said that Clark (as opposed to themselves) was “supposed” to
be wrapping materials. Poche further testified that, when he
addressed them, the other three employees were reviewing
drawings to see where the equipment was going to be placed on
the ship.
Poche, as I have found so often in this decision, was not a
credible witness. Here, Poche first admitted that he saw Clark
out of the corner of his eye as he walked by; then he tried to
describe a position that Clark had assumed in order to make
himself undetectable, unless one looked very carefully. Poche
AVONDALE INDUSTRIES

1299
further tried to draw a picture of other employees diligently
working while Clark read a newspaper; as he did so, Poche
changed his testimony in various ways and self-conflicted
about what other employees he had talked to, and when, and
what those other employees were doing, and where. (Poche
described a building where Clark and other employees were
found, but his own warning notice indicates that Clark was
found in “the material storage container.”) In the process,
Poche (again) rendered himself incredible. I do not believe that
Clark admitted that he was supposed to be wrapping materials
or doing anything else other than taking a break. I do not be-
lieve that Poche went to three other employees and asked them
what Clark was supposed to be doing. Finally, I do not believe
that the three other employees appeared to Poche to have been
working at the time that he approached them. I believe, and find
as Clark testified, that all four employees had agreed to take a
break, and they were doing so. The only difference was that
Clark took part of the breaktime to read a newspaper that he
had found. Then, after Poche addressed Clark, Clark went to
the three other employees and told them what Poche had said
and that they had better get back to work. Rorak stayed behind
to do paperwork, and Clark and the two other employees went
back to wrapping transformers. (Transformer wrapping was
something that Clark could not have been doing by himself,
according to Clark’s credible testimony.)
Further according to Poche, after he left the building in
which the employees had told him that Clark was supposed to
have been wrapping transformers, he called Kelly and “I asked
Mr. Kelly to come to my office, that I had a problem to discuss
with him, and the problem was people under him.”348 While he
waited for Kelly, Poche, “wrote a citation out for Mr. Clark
wasting time, loafing, reading a newspaper during working
hours.” After Kelly arrived at Poche’s office, he signed the
warning notice as a witness; then Kelly and Poche collected
Clark and took him to Terry’s office. There he and Kelly left
Clark outside while they to went into Terry’s inner office. Ac-
cording to Poche, “I gave Mr. [Terry] a citation. He asked me,
“What was the guy doing.” I said, “He was reading a newspa-
per.” He said, “Okay, bring him in.” (This testimony conflicts
with that of Terry’s, as discussed below. Also to be noted is the
fact that Poche testified that he drafted “a” citation and he gave
Terry “a” citation. Poche did not testify that he drafted the
warning notice that Clark was issued after his discharge, as
quoted above.) Further on direct examination, Poche was asked
and he testified:

Q. What happened next?
A. Mr. Clark was asked to come in. He came in to Mr.
Terry’s office, and Mr. Terry asked him if he knew why he
was in there.
Q. And what did Mr. Clark respond?
A. He said, “Yes.”
Q. What happened next?
A. Mr. Terry asked him, “Is it true what I am reading
on this citation, that you were reading a newspaper?”
He said, “Yes, I sat down; I was looking at the news-
paper.”
Q. What happened next?

348 Apparent from Poche’s phraseology is the fact that, although
Clark had been under Poche supervision when the December 14 warn-
ing notice was issued, Clark was not under Poche’s supervision on
January 10.
A. Mr. Terry told him he was terminated.
Q. Did Mr. Clark respond?
A. I don’t recall if he did or not.
Q. At any point, did you recommend termination of
Mr. Clark?
A. No, sir.
Q. Did Mr. Kelly recommend termination of Mr.
Clark?
A. I don’t think so. No, sir.
Q. When was the first time that you heard that Mr.
Clark was being terminated?
A. When he was in the presence of Mr. Terry.
Q. Did Mr. Terry tell you that he was going to termi-
nate Clark before he actually informed Mr. Clark?
A. Not that I recall. No, sir.

(As discussed below, this testimony conflicts with that of Terry
who testified that there was discussion of Clark’s disciplinary
record before and during the discharge interview.)
On cross-examination Poche testified that he called Terry be-
fore he and Kelly took Clark to Terry’s office, but he could not
remember what he told Terry about the situation. When asked
why he called Terry, Poche replied: “It is an immediate dis-
charge violation. It is deliberately wasting time, negligence on
his part.” Later on cross-examination Poche denied that he
made the decision to take Clark to Terry; Poche testified that it
was Kelly’s determination to take Clark to Terry. As Poche
later put it: “I requested his [Kelly’s] presence to come down
and speak to me.” When we talked, he said, “We are going to
bring him down and speak to Mr. Terry.”
Kelly (vol. 136), however, did not testify that he met with
Poche before going to Terry’s office; specifically, Kelly did not
corroborate Poche’s testimony that he decided to bring Clark to
Terry. Kelly further excluded from his testimony that he was
somehow involved with the drafting of a warning notice before
he got to Terry’s office. Finally, Kelly did not admit, as both
Poche and Clark testified, that he met with Poche and Clark
before the three of them went to Terry’s office. Instead, on
direct examination, Kelly was asked and he testified:

Q. As best as you can recall, what is the first—what is
the—what do you remember at all about that particular in-
cident?
JUDGE EVANS: Well, what was your first notice that
something had happened?
THE WITNESS: I was called to the main electrical of-
fice, and I don’t know if I was called by radio or if I was
beeped. And when I got to the main electrical office, they
asked me to come in to Bob Terry’s office. Mr. Leroy
Clark was in Bob Terry’s office, and when I entered the
room, Bob asked me to close the door, so I closed the
door, and—
Q. [By Mr. Hymowitz]: Who else was there, if any-
body else was there, other than Mr. Clark?
A. I think Mr. Poche was in there also, Mark Poche.
Q. All right. And what happened at that point, after
you closed the door?
A. Bob asked Mr. Clark, was he reading a newspaper.
Mr. Clark told him, yes, he was reading a newspaper, and
Bob told him he was going to terminate him, and that was
it.

Kelly testified that after Terry discharged Clark, Clark “went
and sat across the hall,” as Clark also testified. Kelly, however,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1300
denied that he then took the above-quoted warning notice to
Clark. Kelly acknowledged his signature on the January 10
warning notice as quoted above, and he testified that he be-
lieved Terry gave it to Clark while Clark was in Terry’s office,
but he denied remembering when he signed it as a witness.
Kelly professed to remember nothing else about the incident.
Terry (vol. 91) testified that on January 10 Poche called him
and told him that he had found Clark reading a newspaper;
Terry testified that he told Poche to bring Clark to him. Terry
further testified that, while he was waiting for Poche and Clark,
he called for, and reviewed, Clark’s personnel file. Terry testi-
fied that he found in Clark’s file the above-quoted December
14 major offense warning notice for “intentional negligence,
inefficiency or failure to complete job assigned.” Terry testified
that he first spoke to Poche; according to Terry:

He [Poche] told me that he had observed Mr. Clark sit-
ting in a material container, which is on the ground adja-
cent to the particular ship that Mr. Clark was assigned to
work, sitting on a bucket reading the sports page.
I said, “Well, I reviewed his file, Mark, and Mr. Clark
has got a major offense in there already for intentional
negligence, inefficiency, and failure to complete his job
assignment. I am considering terminating Mr. Clark.” . . . I
asked Mr. Poche to call Mr. Clark into the office so that I
could speak to him and hear him out as to what his version
was of what happened.

(Poche did not corroborate Terry’s testimony that Terry men-
tioned Clark’s prior warning notice to Poche before Clark was
called into his office.) When Clark was called into his office,
further according to Terry:

Well, you know, I had his file out in front of me. I
said, “Leroy, you have already [been] written a citation. It
is very current; for intentional negligence, you know. This
to me should mean that your supervisor is putting you on
notice that you have to improve your work habits. And
you are going to go sit down in the material cage and read
the sports section during your work time?”
He says, “But I didn’t read it long.”
I said, “That is not the issue. As far as I am concerned,
this is loafing. This is sleeping or deliberate loafing, which
is an immediate discharge offense.” And I told Mr. Clark
that I was going to discharge him.

(Neither Poche nor Clark nor Kelly testified that Terry referred
to Clark’s prior warning notice in the discharge interview.)
Further on direct examination, Terry was asked and he testified:

Q. Why did you decide to terminate Mr. Clark? . . .
THE WITNESS: This [January 10] deliberate loafing is
an immediate discharge offense. That, in combination with
the [December 14] inefficiency, intentional negligence,
and failure to complete job assignment—here, you have a
major offense, and the current offense is immediate dis-
charge offense. The combination of the two—my conclu-
sion was this employee should be terminated.

Terry testified that he could not remember what Poche told him
other than that he had found Clark sitting on a bucket, reading a
newspaper, and Poche denied remembering telling Terry any-
thing more; therefore, there is no direct evidence that Terry
knew that Clark had been taking a normal mid-morning break. I
find, however, that Terry knew that Clark was claiming that he
had been on a break when he was found by Poche. Poche ad-
mitted that Clark had told him that he was on a break; Poche
presumably passed this information on to Terry, and Terry did
not deny knowing that Clark was making that claim. I was
therefore constrained to ask:

JUDGE EVANS: Sir, if Mr. Leroy Clark had been eating
as well as reading the newspaper when he was sitting on
that bucket, would he have been disciplined in any way?
THE WITNESS: Your Honor, if it was within a reason-
able—you know, like midmorning or mid-afternoon time
frame and the man was taking a break and he was actually
eating or drinking a soft drink and not reading the news-
paper, he would not have been disciplined.
If he had been tried to have been disciplined, I would
not have accepted it.

Therefore it is clear that, in Terry’s eyes, Clark’s misconduct
lay entirely in the fact that he was reading on a break.
On cross-examination, Terry was asked and he testified (vol.
93):

Q. It is correct, sir, that when employees take their in-
formal break, they are permitted to speak to each other.
Isn’t that correct?
A. Yes.
Q. Is there any attempt made by the electrical depart-
ment to control the conduct of employees during their in-
formal break?
A. No.
Q. For all intents and purposes, sir, isn’t it correct that
the informal breaks are considered to be the employee’s
time for those ten or 15 minutes? . . .
THE WITNESS: Yes.
Q.[By Mr. Lurye]: Isn’t it correct, then, sir, that during
those ten or 15 minutes, the employees can talk about un-
ion activities?
A. Yes.
Q. And isn’t it correct, then, that during those ten or 15
minutes, the employees could sign petitions concerning
union activity?
A. I would think so.
Q. And isn’t it correct that during those ten or 15 min-
utes, employees could sign petitions concerning safety
problems?
A. Yes.

Then, on redirect examination, Terry was asked and he testi-
fied:

Q. [By Mr. Hymowitz]: You testified, I believe, that it
was not uncommon to see employees have soft drinks or
sandwiches around 9:00 a.m. in work areas or designated
eating areas. . . . Are employees permitted to sit around
and read a newspaper while taking a break time at 9:00
a.m.?
MR. LURYE: Objection.
JUDGE EVANS: Overruled.
THE WITNESS: No, they are not.

The question was, of course, blatantly leading, but the damage
had been done.
Documentary Evidence about Newspaper Reading
During the General Counsel’s case-in-chief Respondent ob-
jected to global production of all electrical department warning
AVONDALE INDUSTRIES

1301
notices. I agreed that such production was more properly a
subject for rebuttal, and the General Counsel subsequently is-
sued another subpoena duces tecum for rebuttal purposes. The
General Counsel offered several warning notices that Respon-
dent then produced. About all electrical department warning
notices, Terry testified (vol. 59): “They are not filed or proc-
essed in any way until I review them.”
In the 12-month period beginning December 28, 1990, Lo-
cantro issued to electrical department employee Norman Ducre
four warning notices as follows: (1) On December 28, 1990,
Locantro issued to Ducre a general offense-4 warning notice for
leaving the work area 2 minutes before lunchtime. (2) On Sep-
tember 17, 1991, Locantro issued to Ducre a warning notice
that had “Other” major offense marked; Locantro stated as the
reason for the warning: “Deliberate loafing during work hours.
Man was caught reading newspaper.” (3) October 17, 1991,
Locantro issued to Ducre a major offense-2 warning notice that
stated as the reason for the warning: “Intentional negligence . . .
Man was assigned job of [work described]. Took man 7:00 to
10:30 to do job.” (4) On November 19, 1991, Locantro issued
to Ducre a general offense-4 warning notice that stated as the
reason for warning: “Wasting time . . . . After giving man warn-
ing once before about using phone without pass, he continued
to do it. Written Final Notice.”349 As Terry processed this last
warning notice as a “Written Final Notice,” Ducre was pre-
sumably not discharged after it; Respondent introduced no
evidence in conflict with that presumption on surrebuttal.
On October 6, 1993, or just three months before he dis-
charged Clark, Terry, himself, signed a general offense-4 warn-
ing notice that was issued to electrical department employee
JoAnn Beaty. As the reason for the warning, Terry stated:
“Wasting time, Paging through newspaper during working
hours.”
The General Counsel introduced other documentary evi-
dence that supervisors of other departments considered news-
paper reading something less than an immediate discharge of-
fense under the Avondale Employees’ Guide: (1) On August
24, 1990, operations department employee Calvin King was
issued a general offense-4 warning notice for “reading a pocket
novel, paperback book during working hours. Reported to Bob
Olmstead by Lester Lehoste.” (Employees cited for a general
offense under the Avondale Employees’ Guide are presumably
not discharged as if their offense had been an immediate dis-
charge offense. In King’s case it is further clear that he was not
discharged for his August 24, 1990 offense because King re-
ceived a subsequent warning notice.) (2) On September 25,
1990, paint department employee John Thomas was issued a
general offense-4 warning notice that stated: “Employee was
not in his assigned workplace and was reading [a] newspaper
during working hours. The next warning of this type will result
in IMMEDIATE discharge.” (3) On March 13, 1991, paint
department employee Calvin Watkins was issued a general
offense-4 warning notice for being “caught reading a newspa-
per during working hours.” (Watkins received another warning
notice 40 days’ later, and he unquestionably was not discharged
for this offense.) (4) On April 1, 1991, operations department
employee Ephram Auila was issued a general offense-4 warn-
ing notice for reading a newspaper during a pipe-flushing

349 It is to be noted that Ducre, who received four warning notices in
a 12-month period, is not included in App. B, but I do include him in
App. C (as explained in the case of discriminatee Marshall, supra).
watch. That warning notice notes a previous warning notice for
loafing. On October 3, 1991, Auila was given another general
offense-4 warning notice for reading a newspaper. (5) On April
11, 1994, paint department employee Adrian Rauma was given
a general offense-4 warning notice for “reading newspaper in a
tank.” (6) On April 28, 1992, paint department employee Terry
Brown was issued a general offense-4 warning notice that
stated “Employee was . . . reading a newspaper when he was
supposed to be working.” Previous to this warning notice
Brown had received two other warning notices: (a) on February
1, 1991, Brown received a major offense warning notice stating
“Refused to do the job assigned you by a supervisor; signed out
and went home. FINAL WARNING.” (2) After that “final”
warning, on October 1, 1991, Brown received another general
offense-4 warning notice for leaving early for lunch.
Testimony about Newspaper Reading
Current employee Francis McGill (vol. 53), a layout me-
chanic in the electrical department, testified that Foremen A. S.
Russell and Vincent (Wolf) Michel350 share an office where
electrical layout mechanics, such as McGill, often take breaks.
The very week before he testified, according to McGill, Michel
and Russell were in the office when employees on break read
and discussed what was in a newspaper. McGill gave several
examples of such incidents in the year preceding his testimony
(involving reading and discussions of newspaper articles about
professional football players, point spreads, drug trafficking,
and musicians). Neither Michel nor Russell testified, and this
testimony by McGill stands undenied. Respondent called elec-
trical department employee Keith Riley who testified that Mi-
chel once told him that he could not read newspapers on breaks;
Riley, however, also testified that he was told that he could not
even sit down on breaks, something no supervisor or other em-
ployee testified to.351 Riley rendered himself incredible on this
point.
Former employee Gene Wagner (vol. 50) testified that once,
between 1990 and 1992, when he was working on a prison
barge, Operators Department General Foreman Robert
Olmstead saw him reading a newspaper during working time.
Olmstead told Wagner to put the newspaper up, but he did not
issue any discipline to Wagner. Olmstead testified (vol.120),
but he was not asked about Wagner’s testimony. (On cross-
examination, Olmstead admitted knowing Wagner and that
Wagner had worked for him on the prison barge.)
Current paint department employee Jim Lanham (vol. 27)
testified that on breaks he and other employees regularly read
newspapers in the presence of Foremen Matthew Martin and
Dennis McDonald. Lanham further testified that he has seen
Martin and McDonald read magazines and newspapers during
the shift. Lanham further testified that Martin and McDonald
regularly allow him to have a head-phone radio to listen to
Monday night professional football games. As mentioned in the
case of discriminatee Bennett, Martin did not testify. McDonald
(vol. 98) denied this testimony by Lanham, but I found it to be
credible.

350 McGill knew Michel only as “Wolf.” Terry testified (vol. 59) that
“Wolf” is Electrical Layout Supervisor Vincent Michel. Michel is a
stipulated supervisor (whose name is misspelled as “Mitchell” at vari-
ous points in the transcript).
351 Certainly, Terry did not testify that employees must not sit down
during breaks.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1302
Current inside-shop pipe department employee Harold Di-
Maggio (vol. 47) testified about Foremen Keith Hodges and
Johnny Dufrene, who read newspapers along with clerk Donna
Jones, Charlie ———, an expediter, and Miguel ———, a
fitter, and himself. According to DiMaggio: “Well, everybody
in the shop at one time or another reads the paper during the
day.” Further according to DiMaggio, he brings a newspaper to
work every day and reads it about 35 or 40 minutes during
breaks and working time. Hodges and Dufrene have been pre-
sent when much of this reading was going on, according to
DiMaggio. Dufrene always brings a newspaper and reads it; if,
for some reason DiMaggio does not have his paper, DiMaggio
goes to Dufrene and borrows his. DiMaggio and Dufrene some-
times go out gambling together; the week before DiMaggio
testified, Dufrene brought him a newspaper showing that a
local casino was offering “free blackjack tournaments.” An-
other shop employee has a custom of bringing advertisements
for cruises, depicting nudes, and DiMaggio has sometimes seen
Dufrene and Hodges review those. Neither Dufrene nor Hodges
testified, and I found this testimony by DiMaggio to be credi-
ble.
Current sheet metal department employee Michael James
Boudreaux (vol. 46) testified352 that he often reads newspapers
during the period between 3:20 and 3:30 p.m. (presumably after
he finishes cleaning his work area). Boudreaux testified that his
foreman, Clifford Autin, and the Departmental Superintendent
Poleto each see him reading the newspaper “[t]wo or three
times a week.” Autin did not testify. Poleto testified (vols. 105,
134), and he acknowledged knowing Boudreaux, but he did not
deny this testimony. I found this testimony by Boudreaux to be
credible.
Clark’s Discharge—Conclusions
Clark wore prounion insignia, but only in a discrete fashion
(on the inside of his hardhat and on the inside of his lunchbox)
and his supervisors cannot be charged with knowledge of his
prounion sympathies by that conduct. I also do not find an ex-
pression of prounion sympathies in Clark’s statement to Terry
that the employer campaign meetings were good, but Respon-
dent could have avoided its “union problem” by spending the
time and money earlier. (Clark further credibly testified that
some supervisors saw him receiving handbills at the gates dur-
ing the preelection period, but such testimony was not proba-
tive evidence of expressions of prounion sympathies.) On the
other hand, in June, when his then-foreman, Sprunk, asked if
Clark were “for this union business,” Clark unequivocally told
Sprunk that he was, and Clark told Sprunk that he intended to
vote for the Union in the June 25 Board election. In view of the
hostility that Respondent’s supervisors expressed toward the
apparent union victory in the election, and especially the hostil-

352 On brief, Respondent contends that Boudreaux’s testimony
should be stricken because he testified that he gave an affidavit that was
not produced by the General Counsel pursuant to the Board’s Rule
102.118. When he was passed for cross-examination, the General
Counsel presented Respondent with several affidavits that Boudreaux
had given. Counsel further represented there were no other affidavits by
Boudreaux in his files, that the field examiner to whom Boudreaux
claims to have given the additional affidavit had deceased, and that it
cannot definitely be determined that such an affidavit ever existed. I
accept the General Counsel’s representations. It appears that Boudreaux
was simply mistaken. I deny Respondent’s motion.
ity expressed by various electrical department supervisors,353
this expression of prounion sympathies can hardly be consid-
ered “minimal.” Also, Terry maintained a list of “Union sup-
porters.”354 Terry testified that he destroyed the list shortly after
the election, but I have only his (often discredited) word for
that, and I do not believe it. It was presumably for some reason
that Sprunk asked Clark if he was for the “Union business.” It
is safe to infer, as I do, that the answer was passed along to
Sprunk’s superintendent, Terry. It is further safe to infer, as I
do, that Terry recorded the results of the questioning, either
mentally or on his list of “Union supporters.” I find that Terry
had knowledge of Clark’s prounion sympathies at the time that
he discharged Clark, and, in view of all of the unlawful animus
that his been proved, it must be concluded that the General
Counsel has presented a prima facie case of unlawful discrimi-
nation in the discharge of Clark,355 and the burden shifts to
Respondent to demonstrate by a preponderance of the evidence
that it would have taken the same actions against Clark even in
the absence of his known protected activities. Respondent’s
defenses must therefore be examined.
As quoted above, when asked why he decided to discharge
Clark, Terry first responded: “This [Clark’s January 10 news-
paper-reading] deliberate loafing is an immediate discharge
offense.” Then Terry testified that he discharged Clark because
of “the combination” of Clark’s newspaper reading and his
prior single major offense warning notice for “[i]ntentional
negligence, inefficiency or failure to complete job assigned.”
These are two separate defenses, detracting from the credibility
of both, but they must be separately addressed. The first issue
presented, therefore, is whether newspaper reading was consid-
ered an immediate discharge offense under the Avondale Em-
ployees’ Guide before the circumstances of Clark’s case.
I have credited Clark’s testimony that he and his three co-
workers were on a usual morning break when Poche found him
reading a newspaper while sitting in one side of the container.
As Poche testified, Clark told Poche that he was on such a
break. Poche testified that he rejected Clark’s representation
that he was on a usual break because the three other employees
told him that Clark was supposed to be out in the yard wrap-
ping transformers. I have discredited Poche’s testimony that the
employees told him this; Poche’s testimony was clearly con-
trived to make blameworthy something that would otherwise
have gone unpunished.
Assuming, however, that Poche had honestly thought that he
had spotted a disciplinary infraction, it is clear enough that
Poche thought it was something less that an immediate dis-
charge offense under the Avondale Employees’ Guide. Poche
testified that, in his office, he wrote out a “wasting time” warn-
ing notice for Clark; “wasting time” is an express subject of

353 To be noted especially is the June 28 instruction by de facto Elec-
trical Department Assistant Superintendent Gerdes to the general fore-
men to tighten up on various disciplinary rules because of the apparent
union victory. See the testimony of Durocher and the conclusions about
the allegations of the second complaint, par. 58, supra.
354 This is the term that Terry used when he was first called by the
General Counsel (vol. 42), although Terry denied using the term later in
his testimony; see the discussion in the case of discriminatee Molaison,
supra.
355 I would also infer the existence of Terry’s knowledge of Clark’s
prounion sympathies by the contrived nature of the defense and the
disparate treatment to which Clark was subjected, as found infra. See
Montgomery Ward & Co., 316 NLRB 1248 (1995), and cases cited
therein.
AVONDALE INDUSTRIES

1303
general offense-4. Moreover, Poche testified twice that he
drafted “a” warning notice that he gave to Terry. Poche did not
testify that he gave Terry an immediate discharge offense warn-
ing notice; moreover, Poche was not shown the immediate
discharge offense warning notice that Kelly gave to Clark after
the discharge. The only possible reason for this is that the warn-
ing notice that Clark ultimately received was not the warning
notice that Poche originally drafted. Also, Poche testified that
he had no idea that Clark was to be discharged until Terry an-
nounced the decision in his office; if Poche had thought that
newspaper reading was an immediate discharge offense, and if
he had originally drafted an immediate discharge offense warn-
ing notice, he would have had at least some idea that Clark
might be discharged before Terry announced it. It is apparent to
me that whatever warning notice that Poche had drafted was
destroyed and, when Clark was asked to step out of Terry’s
office, a new warning notice was drafted at Terry’s instruction.
Terry ordered the warning notice to be drafted as an immediate
discharge offense warning notice,356 although Poche had
drafted the original as something less. All of which is to say
that, if reading a newspaper (on a break or otherwise) had been
an immediate discharge offense under the Avondale Employ-
ees’ Guide, Poche had not known about it until after Terry had
discharged Clark. If general foremen such as Poche and
Kelly357 did not know that newspaper reading was an immedi-
ate discharge offense, even on breaks, employees such as Clark
could hardly have been expected to know it. The truth is that
newspaper reading (on breaks or otherwise) did not become an
immediate discharge offense until Clark’s discharge.
Terry did testify that employees are not allowed to read
newspapers on breaks, but he did so only after being led di-
rectly to that denial on redirect examination and only after he
had admitted on cross-examination that: (1) the employees are
free to speak to each other as they wish, including talking about
union activities, on their informal breaks; (2) the electrical de-
partment makes no attempt to control the employees’ conduct
during their breaks; (3) the time on informal breaks is consid-
ered the employees’ own time; and (4) employees are even free
to sign petitions (which they presumably first read) on breaks.
In addition to these admissions by Terry, it is to be noted that
newspapers are not contraband at the plant. (They are sold in
vending machines outside some of the gates, and production
and maintenance employees are not prohibited from purchasing
them on the way into work.) If Respondent permits production
and maintenance employees to possess newspapers inside the
gates, it must necessarily expect them to read those newspapers,
at least on breaks.
Finally, as well as the above-quoted parol testimony of occa-
sions when newspaper reading is not punished at all,358 the
above-quoted general offense and major offense warning no-
tices to employees for reading newspapers on working time

356 The box for “other” major offense is checked on the warning no-
tice, but the language entered as the reason for the warning is that of
immediate discharge offense-2 of the Avondale Employees’ Guide.
357 Poche testified that Kelly signed the warning notice that was
drafted in his office. Kelly did not corroborate Poche; however, Kelly
also testified untruthfully that Terry gave Clark the immediate dis-
charge offense warning notice, something to which neither Terry, nor
Poche nor Clark testified.
358 See, especially, the testimony of electrical department employee
McGill who testified to newspaper reading that was conducted with
impunity during the week before he testified.
shows that newspaper reading on breaktime was certainly not
an immediate discharge offense under the Avondale Employ-
ees’ Guide; the most significant of these, of course, are the two
electrical department warning notices, one approved by Terry
as a major offense violation, and one, signed by Terry, himself,
as a general offense-4 warning notice to employee Beaty. (And
the warning notice to Beaty occurred only 3 months before
Clark’s discharge.) All of which is to say that Terry’s denial
that employees are not free to read newspapers on breaks, and
his assertion that employees are subject to being immediately
discharged for reading newspapers on breaks, were simply not
credible.
Next to be addressed is the “combination” prong of the de-
fense for Clark’s discharge. The first thing to be noted about it
is that Clark’s December 14 warning notice for “intentional
negligence, inefficiency or failure to complete job” was not
mentioned in the warning notice that was drafted immediately
after Clark was discharged (and while he was still waiting out-
side Terry’s office to be escorted from the premises). Many of
the warning notices (and especially many of the “Final” warn-
ing notices) that were received in this case expressly mention
prior discipline if there was any. If Clark’s prior warning notice
was relied upon as a basis for the discharge it would assuredly
have been mentioned in his final (postdischarge) warning no-
tice. There is further evidence that Clark’s December 14 warn-
ing notice played no part in the discharge. Clark, Poche and
Kelly all testified that Terry told Clark that he was discharged
immediately upon Clark’s admission that he had been reading a
newspaper. Terry is the only witness who testified that Clark’s
prior record was mentioned in any way during the discharge
interview. Poche had signed the December 14 warning notice;
presumably, if it was mentioned during his discussions with
Terry before the discharge interview, or if it was mentioned in
the discharge interview, Poche would have so testified. Terry’s
testimony was clearly false.359 It is obvious to me that, as Clark
credibly testified, Kelly had told him that the December 14
warning notice would not be processed; it was not in Clark’s
personnel file during the discharge interview; some time after
the discharge interview, I believe, Terry was furnished a copy
that either Poche or Locantro had retained. Then Terry, as an
afterthought, injected the previously discarded December 14
warning notice into his scenario of the discharge interview
because he knew that the defense that newspaper reading was
an immediate discharge offense would not withstand scrutiny.
Assuming that there was some element of truth in Terry’s
references to Clark’s prior disciplinary record, Terry was not
called in surrebuttal to testify why Clark’s record warranted
discharge but electrical department employee Ducre, with a
worse disciplinary record,360 was not discharged. Finally, the
multiplicity of employees who were not discharged by supervi-
sors of other departments, as shown by the parol and documen-

359 As noted above in the case of discriminatee Molaison, Terry
committed perjury in his account of that discharge interview; briefly,
Terry testified that he discharged Molaison only after Molaison admit-
ted his misconduct, but Gerdes had discharged Molaison and Terry was
not even at the plant. In my opinion, Terry had no compunction about
lying about what happened at discharge interviews.
360 As noted above, Ducre had two general offense warning notices
in addition to two major offense warning notices. Respondent does not
contend that Ducre’s circumstances were meaningfully different be-
cause his newspaper reading major offense warning notice preceded his
inefficient-work warning notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1304
tary evidence, demonstrates that newspaper reading, even in
combination with other disciplinary infractions, was not a dis-
charge able offense, even when that newspaper reading was
done on working time.
In summary, Respondent has come forward with only pre-
texts361 and afterthoughts to meet its Wright Line burden. I
therefore find that Respondent has not shown that it would have
discharged Clark even in the absence of his known protected
activities. I therefore conclude that Clark was discharged in
violation of Section 8(a)(3).
c. Harold Adams’ warning notice for loafing while doing weld-
ing work
Harold Adams (vols. 28, 29), who is employed as a first-
class welder in the welding department, was issued a warning
notice on August 30, 1993. The second complaint, at paragraph
120, alleges that by the issuance of that warning notice Re-
spondent violated Section 8(a)(3). The General Counsel con-
tends that Respondent issued the warning notice to Adams be-
cause of his known union activities and expressions of sympa-
thy which included his wearing prounion insignia, his making
comments favorable to the organizational effort at an employer
campaign meeting, and his declining to wear a “Vote-No”
sticker that a supervisor had offered to him. Respondent an-
swers that its supervisors had no knowledge of any prounion
sympathies that Adams may have held at any relevant time.
Respondent further answers that the warning notice was issued
solely because Adams was loafing on a welding job and did not
complete that job within the time that he should have. The
General Counsel replies that the defense is a pretext because:
(1) Adams was not loafing, (2) Respondent knew that the job
would take more time than was afforded to Adams, (3) Adams
was charged with using more time than he actually did, and (4)
Adams was prevented, by various circumstance of which Re-
spondent was aware, from completing the job in the time that
was afforded to him. Ultimately, I agree with the General
Counsel and conclude that the warning notice was issued to
Adams in violation of Section 8(a)(3).
From about July 1 until about July 15, Adams worked under
Welding Department Foreman Joe Alvarez and General Fore-
man Ernest Foret Sr. Foret Sr. is something of an assistant su-
perintendent to Superintendent Norris Pertuit; the office of
Foret Sr. is across the hall from Pertuit’s office, and Foret Sr.
substitutes for Pertuit when Pertuit is absent. In late July, Ad-
ams was assigned to work under Foreman Ernest Foret Jr. who,
like Alvarez, reported to Foret Sr.
Adams testified that, about 3 weeks before the June 25 Board
election, Pertuit conducted an employer campaign meeting that
was attended by several employees and supervisors. At the end
of his presentation, when Pertuit asked for questions or com-
ments, according to Adams:

I told him that everything that we had been hearing
about the Union was negative. I asked him whether or not
he could tell me something that the Union did for the peo-
ple that was good. . . .

361 Terry’s statement that Clark’s newspaper reading was an imme-
diate discharge offense under Avondale Employees’ Guide, although
during the 3 preceding months he signed a general offense-4 warning
notice for employee Beaty’s newspaper reading, is further evidence of
pretext. See Yukon Mfg. Co., 310 NLRB 324, 340 (1993), where the
Board affirmed a conclusion that: “The aggrandizement of the offense
is, itself, indicative of pretext.”
He gave me a dirty look.

Adams also testified that Pertuit conducted a second em-
ployer campaign meeting during the week before the election.
At the end of that second meeting, Pertuit and Foreman Otis
Lege (the supervisor of Adams before Alvarez) tendered “Vote-
No” stickers to employees as they left.362 Adams testified that
some employees took the stickers and some did not. Adams
testified that he declined a “Vote-No” sticker offered to him by
Pertuit, and Pertuit “just looked at me.”
On direct examination, Pertuit acknowledged that Adams
was at one employer campaign meeting that he conducted.
When asked if at that one meeting Adams told him that he was
“for the Union,” Pertuit responded negatively. It is problemati-
cal whether Pertuit considered Adams’ question (whether there
were not something positive to say about the Union) to have
been a statement that he was “for the Union.” Pertuit was not
asked if Adams had asked if there were not something good to
be said about the Union. I find that Adams asked the question
of Pertuit and that the question constituted a prounion remark.
Pertuit did not deny offering “Vote-No” stickers to Adams and
other employees after another employer campaign meeting that
he conducted, and he did not deny that Adams refused to take
one. Lege did not testify. I credit Adams’ testimony in this
respect. Adams further testified that on the day of the June 25
Board election he placed two “Union-Yes” stickers on his
hardhat, one on his shirt, and one on his lunch kit (which he
carried with him at all times on the job). Adams testified that he
maintained the “Union-Yes” stickers on his hardhat until they
wore off about 4 months after the Board election (or well after
the date of the warning notice that is in issue). Adams testified
that the “Union-Yes” sticker wore off his lunch kit in about a
month, but he replaced it.
Adams’ Warning Notice—the General Counsel’s Evidence
In late August Adams was working in the assembly area on
LSD-51, which was on the ground in the assembly area. Adams
testified that toward the end of the day on August 26, Foret Jr.
gave him a welding assignment to be completed by another
welder on the second shift. On August 27, from 7 to 7:30 a.m.,
Adams testified, he attended a safety meeting. After the safety
meeting, he and Foret Jr. went to inspect what the second-shift
personnel had done during the evening before. They found that
the second-shift welder had done the welding improperly. Foret
Jr. told Adams to correct the mistakes that the other shift’s
employees had made. At the same time, Foret Jr. told Adams
that, after he finished fixing the mistakes made by the second-
shift welder, Adams was to do a “gouging” job. (This job need
not be described, except to note that it did require a type of
welding rod that is different from other types of welding rods.)
In telling him of the gouging job, Foret Jr. pointed over a rail of
LSD-50 to indicate the gouging job that was “over the side”
from where he and Adams were standing. After getting these
instructions, Adams went off the ship to a storage room to get
welding rods that he would need for the repair and gouging
jobs. (Welding rods are stored in ground storage rooms, as
opposed to ships’ storage rooms, and welders can get only so-
many rods at a time.) As he was leaving the storage room, Ad-
ams met General Foreman Foret Sr. Further according to Ad-
ams:

362 This conduct by Pertuit and Lege is not alleged as a violation of
Sec. 8(a)(1).
AVONDALE INDUSTRIES

1305
Foret, Sr., told me that every time he sees me, I am
looking over the side of the boat. . . . He told me that he
didn’t want me to do that job [that Foret, Jr., had given
him], that he was going to send a real man over there to do
that job.

Adams testified that if Foret Sr. had seen him looking over the
side of the ship that day, he also must have seen his son. After
telling Adams that he was always looking over the side, Foret
Sr. gave Adams another job, which is described below as the
“T-beam job.” Adams returned to Foret Jr. and told him that
Foret Sr. had given him the T-beam job. Adams then went back
to the rod-storage room to get the rods needed for the T-beam
job (and, presumably, to turn back in the gouging rods that he
had previously secured). Adams then went to do the T-beam
job that Foret Sr. had assigned to him, rather than the gouging
job that Foret Jr. had assigned to him.
The T-beam job.363 In the fabrication area, as discussed in
the introductory section of this decision, the compartments of
ships are constructed as “units,” after being completed to a
certain point, the units are moved to the assembly area. Shell
plates (as opposed to interior bulkhead plates) make up the
vertical outsides of the units. “T-beams” are T-shaped reinforc-
ing beams that are welded, at the bases of the T’s, horizontally
along the shell plates, for support. The initial welding of T-
beams to shell plates is done in the fabrication area. After a unit
is placed on a ship, and its shell plates are spliced to the shell
plates of a previously placed unit, the T-beams of the two abut-
ting plates are welded together so that the T-beams run con-
tinuously from shell plate to shell plate. Abutting shell plates
may have several T-beams running along them, depending on
how large the shell plates are. The T-beams on an 8-foot wide
shell plate are 8-feet long, but the last 18 inches, or so, of each
T-beam’s ends are not welded to the shell plate in the fabrica-
tion area; this is done later in the assembly area after abutting
shell plates of different units are welded together. Where two
shell plates abut and are spliced is an “erection joint.” (For
example, two shell plates that are 7-feet high and 10-feet wide
may be spliced along their common 7-foot seam; that seam is
the erection joint.) T-beams of two spliced shell plates are
welded together where they meet at the erection joints. (By not
welding the T-beams all the way to the edges of the shell plates
while the shell plates are still in the fabrication area, welders in
the assembly area can create stronger joints; this is because the
welding core under the ends of the T-beams, and immediately
over the erection joints, become one mass.) The job that Adams
testified that he was assigned by Foret Sr. was to weld the un-
dersides of four shell plate T-beams out to the edges of abutting
shell plates, and then to weld together the T-beams of different
plates where they abutted at the erection joints. In addition to
the vertical shell plates (on which there were four T-beams to
final-weld, according to Adams) there were also 12 to 14 over-
head T-beams that were to be final-welded to a “deck” shell
plate (so-called because, although it was overhead to Adams,
that shell plate formed the “deck” of the level above). Just who
gave Adams the T-beam assignment, and how many T-beams
there were for him to weld, are matters that are in dispute.
Tack welding is the welding of metal parts together to hold
them in place until final welding can be performed. Final weld-
ing is either fillet or butt welding. Fillet welding is the most

363 The description of this work is taken from the testimonies of both
Adams and Foret Jr.
common type of welding; essentially, it is the welding of two
objects together by filling in space that may exist between them
with substance (core) that is produced by the use of welding
rods. Butt welding is the welding of two plates (or T-beams or
any two other objects) that abut. Mirror welding is final weld-
ing with the use of a mirror to see into spaces that are not oth-
erwise visible to the welder; to reach these areas, welding rods
must be bent so that only an inch, or so, can be used at a time;
necessarily, mirror welding is a more tedious and time-
consuming type of operation. Pick-up welding is the cutting
away of detritus that a welder creates as he does final (or tack)
welding, or detritus that may have been left by other welding
operations. Rework is rewelding final welds that have been cut
open for refitting. Adams testified that the side (vertical) shell
plate T-beams required mirror welding for some aspects, and he
testified that both the side and overhead T-beams required some
butt welding, fillet welding, rework and pick-up welding.
Adams testified that on August 27 he was delayed in starting
any work by several events: (1) the safety meeting that lasted
one-half hour, (2) the review of the second-shift’s work with
Foret Jr. (3) Foret Jr’s. showing him the gouging job, (4) his
going to the welding-rod storage room to get rods for the repair
and gouging jobs, (5) his confrontation with Foret Sr. and the
receipt of the T-beam job assignment, (6) his returning to the
rod room to exchange for the rods he would need for the T-
beam job, (7) his return to Foret Jr. to explain why he would
not be doing the gouging job, and (8) the time required to set up
his welding machine for the T-beam job. Adams testified that
because of these events, it was “a couple of minutes after 8:00”
before he began the T-beam job.
Adams testified that he met several problems on the T-beam
job: one problem was that rework was required; to wit: on one
of the side shell plates, the T-beams’ face-plates (cross-bars of
the T’s) had previously been refitted; they had been cut off and
tack welded back into place, and it was his job to final weld
them. Also, Adams could see all of the undersides of those side
T-beams, but he could not see the upper sides. For the portions
of those T-beams that he could not see, even by climbing on
something, he had to use mirror-welding techniques. Adams
further testified that his work on the side T-beams was made
slower by the fact that, starting about 9 a.m., after he had fin-
ished only two of the side T-beams, another employee began
working on the side shell plates just a few feet directly below
Adams. That other employee was “Roberto” (last name un-
known to Adams) whom Foret Jr. had sent to do the gouging
job that Adams had originally been assigned. Adams testified
that he was required to stop working on the remaining side T-
beams and then work only on the overhead T-beams to avoid
being directly above Roberto while Roberto was gouging; oth-
erwise, Adams testified, Roberto would have be showered with
burning sparks that he was creating on the T-beam job. Addi-
tionally, Adams testified, there was pick-up welding to do on
the job: some of the refitted T-beams had been painted, and that
paint had to be burned off, and some of the T-beams had detri-
tus left from previous operations which had to be cut off, and,
as he had been instructed by Foret Jr. to do, he also did pick-up
welding for the detritus that he created as he went. Finally,
being a typical August day in the New Orleans area, it was hot,
and Adams testified that he had to stop many times to get wa-
ter, as employees are generally allowed to do.
Adams acknowledged that he did not complete the job by the
end of the day. By 3 p.m., Adams testified, he had completed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1306
the two side T-beams that he had finished when Roberto ar-
rived at 9 a.m. and “about 10” of the overhead T-beams; Adams
estimated that he had therefore completed “[a]bout two-thirds
of the job.” (The job was finished by second-shift personnel.)
Issuance of the warning notice. Further according to Adams,
about 3 p.m., he was welding when he was approached by Foret
Sr. According to Adams:

Foret began to ask me about what I had done. . . .
[W]hen I tried to explain to him what I did, he started
whooping and hollering at me.
He said, “This is all you have done; What class are
you?”
When I told him what class I was, he said, “You are
first class, and this is all you have done? You are making
too much money.”

On the next workday, Monday, August 30, Foret Jr., pre-
sented Adams with a warning notice. It was signed by Foret Sr.,
and Foret Jr., had signed as a witness. The box for major of-
fense-2 is checked; the “Time of Offense” is stated to be: “8-
27-93—7:00 a.m.—2:30 p.m.” The reason for the warning is
stated to be: “Failure to do job assigned.” According to Adams,
he told Foret Jr., that he would not sign the warning notice, and
Foret Jr., responded that “he couldn’t believe that his father
sent that in.”
On cross-examination, Adams testified that he stopped for
water “possibly” five times while doing the T-beam job. He
further admitted that Roberto’s presence did not slow him down
on welding the overhead T-beams (although Roberto’s presence
had caused him to move from the side T-beams to the overhead
T-beams before he had completed the side T-beams).
Adams’ Warning Notice-Respondent’s Evidence
Foret Sr. (vol. 100) testified that he gave Adams no assign-
ments on August 27. Foret Sr. testified that on August 27, about
9:30 or 10 a.m., he was standing on the 01-level of LSD-50, a
ship that was on the ground, adjacent to the ship that Adams
was working on, LSD-51. Foret Sr., looked over to the 01-level
of LSD-51, and he saw Adams where Adams was “supposed to
be welding T-beams.” (Foret Sr. testified that he could see Ad-
ams because Adams was working in an “open compartment”;
that is, one side of the unit was open to view from one side.)
Foret Sr. testified that he saw that Adams “[w]asn’t working.”
Rather, he saw that Adams was stopping passers-by and talking
to them at “[t]wo to five-minute intervals, off and on.” On di-
rect examination Foret Sr. was not asked how long he observed
Adams from LSD-50; on cross-examination, Foret Sr. testified
that it was: “About five minutes.”
Foret Sr., took “about 15 minutes or less” to walk from one
LSD to the other and approach Adams. Foret Sr. testified: “I
told him that I don’t pay him to shoot the bull with these fel-
lows, especially right there where he welding at.” He further
told Adams “to get to work.” Foret Sr. testified that he could
not remember if Adams made any response.
Foret Sr. testified that “offhand” he could not recall how
much work Adams had done to the point at which he ap-
proached Adams, but he knew that Adams had not “performed
a sufficient amount of work for a welder.” Foret Sr. testified
that, when he left Adams, he went to Adams’ foreman, Foret Jr.
and told him to make sure that Adams welded the right number
of T-beams according to the job’s work order, and that he per-
formed enough welding “footage” for the day.
Welding footage charts are guides that indicate how many
feet-per-hour of welding that a welder should accomplish. Ac-
cording to Foret Jr. the footage charts are for fillet welding in
open areas. Pick-up welding, mirror welding, and rework weld-
ing are not rated by the footage charts; those types of welding
are sometimes rated by “breakdown sheets” attached to work
orders. Foret Sr. testified that the work order that included the
T-beam job had breakdown sheets attached; he acknowledged
that the work order for the T-beam job still exists, but it was not
produced (with or without the breakdown sheet) by Respon-
dent.
Foret Sr. further testified that he went with Foret Jr. back to
Adams’ work area at 2 p.m. There he saw that Adams had
“three hours’ worth of work done . . . [f]or that day.” Then,
Foret Sr. testified, he instructed Foret Jr. to issue to Adams a
warning notice.: “Because Mr. Adams was not performing his
duties for that day.”364
On cross-examination Foret Sr. was asked and he testified:

Q. And you would agree with me that you never went
and looked at the work order and the attachment from Mr.
Adams’ job?
A. No, sir. I didn’t have to, through experience.

Foret Sr. further acknowledged that T-beams sometimes get
reworked, but he testified that he could not remember if any of
the T-beams upon which Adams was working required any
rework; he denied that any of the T-beams that Adams worked
on had been painted.
Foret Jr. (vol. 113) testified that he gave Adams the T-beam
job on August 27 and that he gave Adams no other jobs on that
date. As did Foret Sr., Foret Jr. testified that there were only
two side T-beams and only six or seven overhead T-beams. (In
his testimony, Foret Jr. referred to the T-beams as “angles.”)
Foret Jr. further testified that by 7:15, he had assigned Adams
the job and showed him where to start; at that point Adams was
ready to go to the rod-storage room, something that would take
no more than 5 or 10 minutes. About 8:30, he passed by Adams
and saw him working, with “no problems,” on the side T-
beams; Adams had not started the overhead T-beams at that
point. He noted that Adams was working with a mirror on the
side T-beams. Foret Jr. told Adams that it was not necessary to
use a mirror. Foret Jr. testified that nothing else was discussed
with Adams at that point. At 11 a.m. Foret Jr. returned to Ad-
ams’ work area and found that Adams had finished the two side
T-beams and was beginning to work on the overhead T-beams.
(In his testimony Foret Jr. mentioned no contact with Foret Sr.
that may have occurred after Foret Sr’s. claimed confrontation
with Adams about 10 a.m.)
Foret Jr. further testified that about 1:30 p.m., Foret Sr. ap-
proached him and:

He came to me and asked me where [Adams] was
working at, if I had given him that job in the morning. And
I told him, “Yes.” And he told me then—he wanted to
know if I had moved him anywhere, because it didn’t
seem like he was moving or getting any further, and which
I explained to him about the stuff with the mirror and eve-
rything.

364 As detailed infra, Foret Jr. testified on direct examination that he
made the decision to issue the warning notice to Adams; Foret Jr. how-
ever, admitted on cross-examination that that testimony was false.
AVONDALE INDUSTRIES

1307
And he said it still should have been further than what
he was. “Had I been up there lately?” And I told him I had
been late morning up there.
He said he observed him, you know, throughout the
morning and that it didn’t seem like he was moving. That
was basically about it.

Foret Jr. and Foret Sr. agreed to meet at 2 p.m.at Adams’ work
area to see just how much Adams had gotten done that day.
Foret Jr. did not testify that his father told him in this 1:30
p.m.exchange (or in any other exchange) that he had seen Ad-
ams standing around talking to others and wasting time in the
manner that Foret Sr. described in his testimony.
(While Foret Sr. described a morning exchange with Foret Jr.
in which Foret Sr. told Foret Jr. to watch Adams’ footage that
day, it is apparent that this 1:30 p.m. exchange was the first of
the day between Foret Sr. and Foret Jr. If there had been any-
thing like the morning exchange that Foret Sr. described, Foret
Jr. would not have testified that, in the afternoon, Foret Sr.
inquired about when Adams got the T-beam job assignment.)
Further according to Foret Jr., he and Foret Sr. did meet at
2:15 p.m. at Adams’ work area, but Adams was not there. At
some point when the Forets were standing there, Adams walked
up, but neither Foret said anything to Adams. The Forets re-
turned to Foret Jr’s. office where they looked at work orders to
see how much welding footage Adams should have accom-
plished in the time that he had consumed. On direct examina-
tion, Foret Jr. testified that he then decided to issue the July 30
warning notice to Adams. Foret Jr. testified that he then called
the welding department clerk (who did not testify, but who is
mentioned in many other of the cases involved herein) and
ordered that a warning notice be typed out and sent to him. That
was late Friday, August 27. On Monday, August 30, Foret Jr.
received the typed warning notice from the clerk, and he then
signed it and presented it to Adams. Foret Jr. testified that Ad-
ams said that he did not deserve the warning notice, and that he
told Adams that he could say that in the employee’s comment
section of the warning notice. Foret Jr. testified that he could
remember nothing else that was then said between Adams and
himself. Foret Jr. was not asked if, when he presented the warn-
ing notice to Adams, he told Adams that he “couldn’t believe
that his father sent that in,” as Adams testified.
When asked why he decided to issue the warning notice on
the basis of work that Adams had done by 2 p.m., Foret Jr.
testified:

Because his footage wasn’t there. I mean, he didn’t
have enough at the time, and which six hours—he should
have had plenty more done. And at the end of the day, I re-
turned back to his job site to make sure he did any—see
how much more he had done, which he basically hadn’t
moved. He was about the same area. . . . I had to end up
putting the night shift on there to do the job.

Foret Jr. further testified that no one had worked on the T-beam
job before, and there was no pick-up welding for Adams to do.
(He was not asked if there was rework to be done on the T-
beams.) Finally on direct examination, Foret Jr. denied that
Adams complained that another employee was in his way and
was slowing him down. Foret Jr. was not asked if there was, in
fact, another employee there whose presence would have
slowed down Adams, such as Roberto.
Early in his cross-examination, Foret Jr. reasserted that he
had made the decision to issue the July 30 warning notice to
Adams. Later in his cross-examination, however, Foret Jr. ad-
mitted that Foret Sr. instructed him to issue the warning notice
and that his earlier testimony was “incorrect.”
Foret Jr. then admitted that Foret Sr. ordered him to have the
warning notice issued for “failure to complete job assigned,”
which is major offense-2 of the Avondale Employees’ Guide.
Foret Jr. acknowledged, however, that Adams’ conduct could
also have been written up as a general offense under the Avon-
dale Employees’ Guide; general offense-4, is “wasting time.”
Foret Jr. was not asked on redirect examination why the more
serious category of offense was cited on the warning notice.
Foret Jr. further was asked and he testified:

Q. And, now, as best you can, in the order it happened,
if you are able to, I want you to tell us what you and Foret,
Sr., did in that office either in terms of looking at materials
or talking during that ten minutes [shortly after 2:00 p.m.]
. . . either speaking or looking at things or a combination
of—
A. Oh, we went over a footage chart in angles, to see
how many angles we should have welded that day, and de-
termined that he wasn’t—he didn’t have enough in that
time—in the time he had started since 7:00.

Also on cross-examination Foret Jr. was asked and he testified:

Q. So you sort of knew that morning when you [gave]
him the job at 7:00 a.m. that someone else might have to
finish up on night shift or that someone might have to do it
on Monday, some of it—
A. Yes. Might have to complete the job—right.
Q. And if you are able, could you tell us, after the—
that shift was done, that eight-hour shift, how many more
hours of work you thought there would be?
A. Maybe five, six more hours of work.
Q. So eight hours on that Friday during day shift, and
then five or six more hours either that evening or the next
Monday morning.
A. Yes.
Q. So if he worked that day and then five or six hours
the next day—the next workday, that would be most of
two days, wouldn’t it?
A. Close. It wouldn’t be two, but it would be—
Q. But it would be most of two days.
A. Yes.

On this point, Foret Jr. was asked questions on redirect exami-
nation, and he testified:

Q. And do you remember in response to Mr.
Bensinger’s question you said it would have taken five or
six hours to complete the job that Mr. Adams was working
on? Do you recall you saying that?
A. Yes.
Q. What did you mean by that?
A. That it would have took five or six hours to com-
plete where he had left off that day.
Q. If Mr. Adams had completed a full day’s work, how
long would that have taken to complete that job?

. . . .

THE WITNESS: About another hour or two.

Whether it was 1 or 2 hours, or 5 or 6 hours, it is clear from this
testimony that Respondent’s supervisors knew that the T-beam
job was more than an 8-hour job.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1308
Because he (and Foret Sr.) testified that Adams was issued
the warning notice because he did not achieve enough “foot-
age,” Foret Jr. was asked the obvious question, and he testified:

Q. BY MR. BENSINGER: And what distance did you
figure that he should have welded that day?
A. He should have done all the angle splices within
that time.
Q. But how many inches, feet, or yards was that?
A. I don’t know offhand.

Of course, Foret Jr. was not testifying “offhand.” Like all of
Respondent’s witnesses, he was well prepared. Finally on
cross-examination, Foret Jr. agreed that welders should do the
pick-up welding as they went along.
Adams’ Warning Notice—Credibility Resolutions
and Conclusions
At the time of the issuance of the warning notice in issue,
Adams’ supervisors were Foret Sr. and Foret Jr. both of whom
denied seeing the “Union-Yes” stickers on Adams’ hardhat;
however, I found Adams’ testimony on the point credible. I
find that Adams’ supervisors had knowledge of Adams’ proun-
ion sympathies by August 30 by virtue of Adams’s open and
obvious display of the “Union-Yes” stickers, by his speaking
up for the Union at one employer campaign meeting,365 and by
his refusing to accept a “Vote-No” sticker after another em-
ployer campaign meeting. Respondent’s animus toward those
employees who favored the Union, and specifically toward
those employees who wore prounion insignia, has been demon-
strated throughout this decision, I conclude that the General
Counsel had presented a prima facie case of unlawful discrimi-
nation against Adams, and the burden shifts to Respondent to
demonstrate by a preponderance of the evidence that it would
have taken the same actions against Adams even in the absence
of his known protected activities. Respondent’s defenses must
therefore be examined.
Foret Sr. and Foret Jr. credibly testified that there were only
two splices of T-beams to be made on the side shell and six or
seven splices on the overhead shell. Ultimately, however, the
numbers of the T-beams to be completed makes no difference.
In assessing the amount of time charged against Adams by
Respondent, the first thing to be noted is what is not in issue:
both supervisors testified that they counted the time from 7 a.m.
because that is when Foret Jr. assigned the T-beam job to Ad-
ams. Also, the warning notice, itself, states that the time
charged against Adams was “7:00–2:30 p.m.”
Adams testified, without contradiction, that on August 7 he
attended a 30-minute safety meeting at the start of the shift.
Periods consumed in safety meetings are recorded on MCRs; at
trial, literally hundreds of MCRs were produced by Respondent
(often to rebut testimony about when meetings of various types,
including safety meetings, occurred). The MCR that would
have disputed this testimony by Adams (Foret Jr’s. MCR for
the day), however, was not produced by Respondent, and no
reason for not producing it was offered. I credit Adams’ testi-
mony on this point. I also credit Adams about the other matters
that delayed his start on the T-beam job until after 8 a.m., in-
cluding his first being assigned the gouging job by Foret Jr. and

365 Departmental Superintendent Pertuit conducted the employer
campaign meeting; I infer that Pertuit shared the information that he
learned with his assistant, Foret Sr., who ordered the issuance of the
July 30 warning notice.
then his being assigned the T-beam job by Foret Sr. In order to
defeat Adams’ testimony that Foret Sr. gave him the T-beam
job assignment, Foret Sr. testified that he watched Adams
working only once that morning, and then only from another
ship, and then only for 5 minutes. Foret Jr. however, testified
that Foret Sr. told him that he had been watching Adams
“throughout the morning.” Also, Adams testified that during
the morning Foreman Alvarez told him that Foret Sr. had been
in the area, watching Adams, “three or four times.” Alvarez
was not called by Respondent to deny this testimony by Adams,
and I found Adams’ testimony on this point credible. Alvarez
would not have said that Foret Sr. had been in the area three or
four times if Foret Sr. had not been. Finally, Foret Jr. did not
deny that Adams told him that he was not going to do the goug-
ing job, because Foret Sr. wanted a “real man” to do the goug-
ing job, and that Foret Sr. had assigned him to do the T-beam
job instead. I find that Foret Jr. did not give the T-beam job
assignment to Adams at 7 a.m., the point at which Respondent
began counting time against Adams; Foret Jr. did not give the
T-beam job assignment to Adams at all; Foret Sr. gave the as-
signment to Adams, and he did so well enough after the close
of the safety meeting at 7:30 a.m. that Adams did not get
started on the job until after 8 a.m., as the Forets well knew.
After he did get started, the only problem that Foret Jr. found
with Adams’ work effort was that he used the mirror where he
did not need to. There is no suggestion that even that conduct
would have warranted a general offense warning notice, much
less a major offense warning notice, which is what Adams was
issued. Foret Sr. testified that he saw Adams talking to passers-
by (for about 5 minutes); however, if Foret Sr. had actually
seen Adams taking an unusual amount of time to speak to pass-
ers-by, he would have mentioned the fact to Foret Jr. Foret Jr’s.
testimony includes no such report, and I find that Foret Sr’s.
testimony on the point was untrue.
Foret Jr. was insistent that he and Foret Sr. reviewed the
footage (or the breakdown sheets), and they reviewed them for
about 15 minutes, before the decision was made to issue the
warning notice; Foret Sr. was just as insistent that they did not
review the footage charts. Foret Sr. testified that his judgment
that Adams had not done enough work that day was made from
“experience.” I credit Foret Sr. who would not have testified
that the decision was made to issue the warning notice without
looking at the footage charts if that were not true. Foret Sr.
made the decision to issue the warning notice to Adams without
consulting the footage charts because the footage charts did not
apply to Adams’ assignment because of the various factors
credibly cited by Adams; to wit: the rework, the pick-up weld-
ing, and the mirror welding. (Those factors were within the
observation and control of the Forets, but the most that they
said about them was that they did not know if such factors ex-
isted, or they did not remember, or they made conclusionary
denials, and Respondent did not produce the still-existing work
orders that may have proved the points. That is, unlike the self-
serving testimonies of many other of the General Counsel’s
witnesses in this case, Adams’ testimony on these factors could
have been effectively rebutted, but it was not.) Further, the
Forets did not take into account the fact that, for some part of
the job, Roberto was in Adams’ way. Foret Jr. testified only
that: “I don’t recall having any welders in the area where he
[Adams] was.” This is far short of a credible denial by Foret Jr.
in the face of Adams’ insistence that Roberto’s gouging as-
signment did have the effect of slowing his progress (at least on
AVONDALE INDUSTRIES

1309
the side T-beams), and that Foret Jr. is the one who gave
Roberto the gouging assignment.
But even if the footage charts did apply, neither Foret knew
how much footage Adams had achieved during the day. Foret
Jr. acknowledged that in the fabrication area the T-beams are
left unwelded at the ends for different lengths, but neither Foret
testified that he measured, in any way, what Adams had done in
the time allotted to him. That is, Adams was held strictly ac-
countable according to the footage charts to produce “X”
amount of footage in “Y” time, but “X” was a complete un-
known, and “Y” was calculated without regard to the one-hour
delay at the beginning of the day that Respondent’s supervisors
caused.
Although Foret Jr. would not admit all that was involved in
Adams’ description of the work, he did acknowledge on cross-
examination that, when he first assigned Adams the T-beam job
(at 7 a.m., according to his account) he knew that “Maybe five,
six more hours of work” would have to be performed by an-
other shift before the job was completed. Foret Jr. reduced this
estimate on redirect examination to 2 hours’ work above an 8-
hour shift for the job, but the fact remains: Respondent’s super-
visors knew that there was more than eight hours’ work to the
T-beam job for any welder. (This factor also belies Foret Jr’s.
testimony that part of the reason that the decision to issue the
warning notice was because “I had to end up putting the night
shift on there to do the job,” as if he had not known from the
start that Adams could not do the job by shift’s end.)
Foret Jr. acknowledged that the warning notice could have
been for a general offense, such as general offense-4, “wasting
time,” as well as major offense-2, “failure to complete job as-
signed.” According to his testimony, the only fault that Foret Jr.
found with Adams’ work was that he had used mirror welding
when he did not need to. I have discredited this testimony, but
assuming it is true, Foret Jr. was not asked why the more severe
warning notice was issued. As the Board stated in Yukon Mfg.
Co., 310 NLRB 324, 340 (1993): “The aggrandizement of the
offense is, itself, indicative of pretext.”
Finally, it is uncontradicted that, when Foret Jr. presented
Adams with the warning notice, he told Adams that he
“couldn’t believe that his father sent that in.” Foret Jr”s. de-
tailed testimony of how he decided to issue the warning notice,
and how he ordered the clerk to prepare it, and how he received
it from the clerk was false, as Foret Jr. admitted on cross-
examination. Foret Jr’s. false testimony was an apparent at-
tempt to meet Adams’ testimony; Foret Jr. wanted the Board to
believe that he could not have said that his father had ordered
the warning notice if he had ordered the warning notice. Foret
Jr’s. false testimony, coupled with Foret Jr’s. failure to deny
making the statement, and Adams’ credible demeanor, cause
me to credit Adams; Foret Jr. told Adams that he could not
believe that his father had ordered the warning notice in issue.
This statement by Foret Jr. was an admission that the warning
notice was invalid. Based on this admission, and my findings
that Adams was issued the warning notice even though Re-
spondent’s supervisors knew that he could not have finished the
job in the time allotted, I find that Respondent has not shown
that Adams would have been issued the August 30, 1993 warn-
ing notice even absent his expressions of prounion sympathies.
I therefore conclude that by issuance of that notice Respondent
violated Section 8(a)(3).
d. Joe Howard’s warning notice for being out of his work area
Joe Howard (vol. 14), who is employed as a first-class ma-
chinist in the machinery department, was issued a warning
notice on October 12, 1993. The second complaint, at para-
graph 129, alleges that by the issuance of the warning notice
Respondent violated Section 8(a)(3). The General Counsel
contends that Respondent issued the warning notice to Howard
because of his known union activities and expressions of sym-
pathy which included his wearing of prounion insignia. Re-
spondent does not deny that Howard wore prounion insignia,
but it answers that Howard’s warning notice was issued solely
because Howard was out of his work area on October 11. The
General Counsel replies that the defense is a pretext because
Howard was not out of his work area at the time in question.
Ultimately, I find that Howard was not out of his work area and
that the warning notice was issued pretextually, and I conclude
that the warning notice was issued in violation of Section
8(a)(3).
Before July, 1993, Howard was a machinist in the outside
machine shop; his foreman there was Wirley Parks; Parks re-
ported to General Foreman Phillip Prince. In July, Howard was
assigned to the “pipe-operators”; the pipe-operators were
mostly crews of pipe testers and ships’ operators, but there
were at least two machinists assigned to those crews, as well.
As a pipe-operator, Howard was assigned to work under Pipe
Department Foreman John Bigeaux and General Foreman John
Whittington.
Howard testified that beginning in May or June, and continu-
ing through time of trial, he wore a “Union-Yes” sticker on the
back of his hardhat. As noted, Howard’s supervisors did not
deny this testimony, and I found it credible.
Howard’s Warning Notice—The General Counsel’s
Evidence
On October 11, Howard was assigned as a leadman on a
pipe-flushing job on a ship that was next to a dock. Howard
testified that, as his crew worked he found that they had been
supplied inappropriate gaskets and bolts and that they needed a
compound called “Never Seize.” He left the ship and went to a
toolroom on the dock to obtain what the crew needed. As he
left the toolroom, according to Howard:

On returning to the ship a co-worker of mine stopped
and asked me about obtaining some tools that I had prior
to me being transferred.
I did not notice Mr. Whittington behind me, but he
was, and he stopped and spoke to another gentleman. At
that particular time he inquired of me what I was doing,
and I told him that I was getting material and heading back
to the ship. He replied by saying: “Well, let’s get on it.”
And I replied by asking him what did he say.
At that particular time the gentleman who I was speak-
ing to by the name of Clayton Plaisance replied by saying:
“He said you better get your ass on the ship.”
And my reply to Clayton was I didn’t play that type
game, you know, using vulgarity or anything.
And at that particular time Mr. Whittington angrily
told me: “I am tired of this mess; come on, let’s go, you
are going back to your department.”

Whittington escorted Howard to the office of Machine Shop
General Foreman Prince, where Whittington told Prince that
both he and Howard wanted Howard to be transferred back to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1310
the machine shop. On cross-examination Howard flatly denied
that he requested to be transferred back to the outside machine
shop.
The next day, after Howard had resumed his duties as a ma-
chinist, Foreman Parks presented Howard with a warning no-
tice that was signed by Whittington. The box for general of-
fense-4 under the Avondale Employees’ Guide (“Wasting time,
loitering or leaving the working place without permission”) is
checked; as the reason for the warning Whittington had written:
“Employee was out of his work area. This an on-going problem
with this employee. This is a final warning.”
Howard testified that, before October 11, “on a daily basis”
Whittington would stop him and ask: “Where I was going, what
I was doing, things of that nature,” but he flatly denied that
Whittington had, in any way, indicated that his being out of his
work area was something of a “problem” or that Whittington
ever told him that he was out of his work area in violation of
some disciplinary rule.
Plaisance (vol. 44), a current employee who was also an out-
side machinist who also had been transferred to the pipe-
operators, testified consistently with Howard about the confron-
tation between Howard and Whittington. Plaisance also testi-
fied that at the time of the Whittington-Howard exchange, he
was not wearing any prounion insignia, but Howard was wear-
ing “Union-Yes” stickers on his hardhat.
Plaisance further testified that, later during October 11, he
was called to the office of Outside Machine Shop Foreman
Parks where:

And I said, “Well, what is up?”
And he said that [he called me] for that incident that—
on the dock with Joe that you was there—he said that they
was trying to fire [Howard].
And . . . And I said, “Why?”
And he said, “Well, they said something like he was
either cursing or raising his voice at the foreman.”
And I told him, “No. [Howard] didn’t do that. The
only curse word that was said, I said it.”
And [Parks] asked me . . . if [Howard] had said any-
thing that the foreman [Whittington] should have brought
him to the—higher foreman [Machine Shop General
Foreman Prince], and I told him no.
But [Parks] asked me again to see if Joe [Howard] had
cursed, and I said, “No. The only curse word that was said,
I said it; And when [Howard had] answered [in Whitting-
ton’s presence that] he ‘don’t play them games,’ [Howard]
had told it to me because [Howard] was looking at me.”
And I also told him that: “Joe don’t curse because he is
a preacher; and he don’t play around like me and you
would or anything like that; it is just his way.”
And [Parks] asked me again if Joe had cursed or raised
his voice, and I told him no.
[Parks] asked me in my own way if I thought that Joe
did anything or said anything that he should have been
fired for.
I said, “At the time that we was together from the time
that they left, no, he did not do anything that he should
have been fired for.”

Further according to Plaisance, still later in the day, Machine
Shop General Foreman Prince came to his work area. Prince
asked Plaisance the same questions that Parks had asked. Plai-
sance gave the same answers, and Prince left.
Howard’s Warning Notice—Respondent’s Evidence
Whittington (vols. 74, 76) testified that during the few weeks
before issuance of the October 11 warning notice he had seen
Howard out of his work area about 20 times. On each occasion
he told Howard to get back to his work area. Whittington fur-
ther testified that both Pipe Department Superintendent Fradella
and Pipe Department General Foreman Carl Abadie had spoken
to him about Howard several times prior to October 11; each
time Fradella and Abadie told Whittington that they had ob-
served Howard on the dock, hanging around a cooler, rather
than at his work place on the ship. Fradella testified, but not
about Howard; Abadie did not testify.
Whittington testified that on October 11, at a time when
Howard’s assigned work area was on a ship, he saw Howard
talking to other employees on the dock, near the machinists’
office, for “maybe a minute, two minutes.” Whittington testi-
fied that the point at which Howard was talking to the other
employees was “[a] good long ways away” from his work area
on the ship, but he did not deny that Howard was near, or could
have been coming from, the toolroom described by Plaisance,
the one near the machine shop office. Whittington denied that
Howard was carrying with him any tools or supplies that he
could have used for a job. Further according to Whittington:

They were just standing there talking. . . . I went over
to the group and asked, “What are you doing? You are
supposed to be on the boat working.”
[Howard] told me, “Hey, I . . . don’t play this kind of
mess, this is ridiculous.”
The machinists left, but before the machinists left, Mr.
Howard told me, “Hey, I am tired of this. I want to go talk
to Prince about transferring back to machinists.”

Whittington told Howard that he could transfer back to the
outside machine shop, and he immediately escorted Howard to
Prince’s office. Whittington testified that in the office, with
Howard present:

I told [Prince] what had happened outside, that the way
[Howard] talked to me was not proper, it wasn’t fair, [and]
I felt like that he would probably be better off back in his
craft.
He said, “Yes, we will take him back, I need another
man back, I will take him back, but when he comes back
he is coming back with a citation for what he did.”

. . . .

Prince told [Howard], “John [Whittington] is not the
only one that has had problems with you. . . . I have per-
sonally seen you off the boat down here in the [unintelli-
gible] cage before lunch so you can get in the [food-
service] shack.
Howard said that he wasn’t cut out [for working]
where he was at, he was a machinist and that is what he
was hired in to do.
Prince said, “Well, we are going to put you back as a
machinist.”

Whittington testified that he drafted the warning notice; he gave
it to Prince for issuance by the outside machine shop supervi-
sors.
At the conclusion of his direct examination on the point,
Whittington testified that he ordered the warning notice issued
to Howard: “Because he was continuously out of his work area,
AVONDALE INDUSTRIES

1311
he had been very warned, and his almost insubordination when
I approached him the last time.” Whittington was not asked
why he made the warning notice to Howard a “final warning.”
On cross-examination Whittington was asked and he testi-
fied:

Q. [By Mr. Bensinger]: Do you agree that it was Mr.
Prince’s decision to give Mr. Howard the warning that you
testified about today?
A. No, sir.
Q. Well, whose decision was that?
A. He agreed—I told him I would like to write him
[up] and he agreed.

Prince did not testify. Parks (vol. 137) testified that on Octo-
ber 11 Prince approached him and told him to write Howard a
warning notice over the incident that had happened between
Howard and Whittington. Parks testified that he refused to
write the notice because he thought Whittington should. After
he had told Prince this, Parks testified, he then called Plaisance
to his office and asked for his account of the event. He denied
that he told Plaisance that anyone was trying to fire Howard.
When asked why he asked Plaisance what had happened, Parks
replied: “Because I wanted to find out from Clayton just ex-
actly what took place.” Parks testified that he was concerned
because he knew by then that Howard was coming back to
work on his crew in the outside machine shop. Parks testified
that on October 12, he received through the inter-plant mail the
warning notice that is in issue. On the same day he presented it
to Howard.
Howard’s Warning Notice—Credibility Resolutions
and Conclusions
Howard was not a vocal union supporter, and he was not
subjected, in violation of Section 8(a)(1), to threats or interro-
gations, as were many of the alleged discriminatees as found
herein (and as were many other nonalleged discriminatees as
found herein). Howard did, however, wear a “Union-Yes”
sticker on his hardhat, activity against which many employees
were warned in violation of Section 8(a)(1). Respondent’s ani-
mus toward those employees who wore prounion insignia hav-
ing been well established, I therefore find and conclude that the
General Counsel has presented a prima facie case that the Oc-
tober 12 warning notice was issued to Howard in violation of
Section 8(a)(3), and the burden shifts to Respondent to demon-
strate by a preponderance of the evidence that it would have
taken the same actions against Howard even in the absence of
his known protected activities. Respondent’s defenses must
therefore be examined.
Howard acknowledged that before October 11 Whittington
had, many times, asked him where he was going or where he
was working, but Howard denied that Whittington had ever
warned him about being out of his work area. Except in conclu-
sionary terms, Whittington, himself, did not testify to any such
warnings. (The most that Whittington testified to was that he
had told Howard that he needed to be back on the boat, but he
did not testify that he warned Howard of any possible disci-
pline.) Whittington’s estimates of how often he had previously
seen Howard out of his work area varied, incredibly, from 3 to
20. If his testimony about seeing Howard out of his work area
more than 20 times had any element of truth in it, there assur-
edly would have been some sort of warning of some discipline.
Moreover, neither Fradella nor Abadie was called to corrobo-
rate Whittington’s testimony that Howard was frequently out of
his work area. It is apparent that, when Whittington had previ-
ously seen Howard out of what Whittington had suspected was
Howard’s work area, Whittington had accepted whatever ex-
planations that Howard had given him. (Or, at least, Whitting-
ton did not challenge Howard’s explanations before October
11.) Finally, I credit Howard’s denial that, before October 11,
Whittington had previously warned him that discipline might
be taken against him because he was out of his work area.
As Prince did not testify, Plaisance’s testimony that Prince
came to him and asked him if Howard had not cursed Whitting-
ton or otherwise acted insubordinately was not denied. I credit
that testimony. I also believe Plaisance’s testimony that Parks
asked him the same things, Parks’ denial not withstanding. I do
not believe that Parks told Prince that he would not write a
warning notice that Whittington should write, and then called
Plaisance into his office to find out what had actually happened.
Further, I believe, and credit, Plaisance’s testimony that Parks
admitted to him that the supervisors were trying to find a reason
to discharge Howard. Even without such testimony it is obvious
that by questioning Plaisance, and suggesting to Plaisance that
Howard had been insubordinate, the supervisors were seeking
support for a theory on the basis of which Howard could be
issued greater punishment than a warning notice. That theory
was insubordination, and insubordination is an “Immediate
Discharge” offense under the literal terms of the Avondale
Employees’ Guide. When the attempt to make Plaisance a wit-
ness to “insubordination” failed, Respondent’s supervisors were
left with one theory of a disciplinary violation; to wit: Howard
was out of his work area. Now, that putative theory of disci-
pline must be examined.
Although he was near the machinists’ office, as Whittington
described, Howard was also near the outside machine shop’s
toolroom, as Plaisance described. There is no suggestion that
there was a closer toolroom that Howard should have used (say,
for example, a pipe department toolroom). Howard was near a
toolroom where he could have gotten supplies, and if he was
going to, or coming from, the toolroom to get supplies (or
tools), he was in a work area.
Howard testified that he was exchanging gaskets and bolts
and securing “Never Seize” at the outside machine shop tool-
room. He further testified that, when he was confronted by
Whittington, “he inquired of me what I was doing, and I told
him that I was getting material and heading back to the ship.”
Whittington testified that he did not see Howard “with any-
thing,” but he did not deny that Howard claimed to be coming
from the toolroom where he had gotten supplies. I find that
Howard did tell Whittington that he had been to the toolroom
and had gotten supplies. If that statement had not been true, it
would have been an easy matter for Whittington to challenge
Howard. (For example, Whittington could have asked: “What
supplies?”) I find that, when Whittington confronted Howard
on October 11, Howard had with him supplies from the tool-
room and that Whittington saw those supplies. That is, Howard
was not out of his work area when he was confronted by Whit-
tington.
I do not believe the testimony by Howard and Plaisance that
Howard made the “playing games” statement in rebuke of Plai-
sance when Plaisance used the word “ass.” The testimony made
no sense; mild or severe, cursing is not “playing games.” I be-
lieve Whittington in this respect: I find that Howard told Whit-
tington that he thought Whittington was playing games with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1312
him, and Howard wanted to go back to the outside machine
shop.
Nevertheless, the warning notice was issued on a pretext.
There are three independent reasons for this conclusion: (1)
Whittington considered Howard’s retort as “almost insubordi-
nation,” as he testified. But it was not insubordination. So
Whittington tried to get corroboration for another theory of
insubordination, by causing Prince and Parks to contact Plai-
sance, as I have found above. When that did not work, Whit-
tington fell back on a theory of Howard’s being “out of his
work area” even though, as I have found, it was not true. (2) On
the point of who ordered the warning notice, Whittington’s
testimony on cross-examination squarely conflicted with his
testimony on direct examination; on direct examination, Whit-
tington testified that, without his mentioning a warning notice
first, Prince declared that “I will take him back, but when he
comes back he is coming back with a citation for what he did.”
On cross-examination, Whittington stated the obvious; it was
his decision to issue the warning notice. Apparently Whitting-
ton had forgotten the answer he had given on direct examina-
tion; the obvious reason he could not remember his answer on
direct examination is that it was not true. The conflict, I find,
comes from the fact that a warning notice was not mentioned at
all in Prince’s office when Howard was there. But some time
after Whittington left Prince’s office, Prince and Parks were
sent out to seek justification for a warning notice to Howard by
contacting (and attempting to put words into the mouth of)
Plaisance. That is, the warning notice was an afterthought by
Whittington, another indicia of pretext. (3) A final indicia of
pretextual basis for the discipline is the fact that Whittington
made the warning notice a “Final” warning notice when there
had been no prior warning notices for misconduct of any sort
by Howard. There are many final warning notices discussed in
this case; in all others, where the offense is a general offense
under the Avondale Employees’ Guide, the final warning no-
tices were preceded by other warning notices. Again, as the
Board stated in Yukon Mfg. Co., 310 NLRB 324, 340 (1993):
“The aggrandizement of the offense is, itself, indicative of pre-
text.” Finally, it is to be noted that Clayton Plaisance, who was
“out of his work area” every bit as much as Howard was on
October 11, received no warning notice; Plaisance, however,
was not wearing any prounion insignia at the time.
In view of my finding that the reason offered for the issuance
of the warning notice to Howard was false, it must be con-
cluded that Respondent has failed to show that it would have
issued the October 12, 1993 warning notice to Howard even in
the absence of his known protected activities. I therefore con-
clude that Respondent violated Section 8(a)(3) by issuance of
that warning notice.
e. Eddie Johnson’s discharge for wandering around the yard
Eddie Johnson (vols. 57, 58) was employed as a pipefitter’s
helper until he was discharged on June 1, 1994. The fourth
complaint, at paragraph 34, alleges that by discharging Johnson
Respondent violated Section 8(a)(3). The General Counsel
contends that Respondent discharged Johnson because of his
known union activities and expressions of sympathy which
included his talking about the Union within the hearing of his
immediate supervisor, wearing prounion insignia, telling his
supervisors that he was going to testify on behalf of the Union
at the representation case hearing, and his actually so testifying.
The General Counsel further alleges that, in violation of Sec-
tion 8(a)(1), Johnson was threatened three times with discharge
or other discipline. Respondent denies that the threats occurred.
Respondent further answers that the supervisors involved in the
discharge of Johnson did not know of any prounion sympathies
that he may have had and that Johnson was discharged solely
because he was found to have been deliberately loafing, an
immediate discharge offense under the Avondale Employees’
Guide. The General Counsel replies that the loafing defense is a
pretext because Johnson was not loafing at the time in question.
Alternatively, the General Counsel contends that Johnson was
treated disparately because, to any extent that he may have been
loafing, other employees were permitted to loaf longer without
being discharged. Ultimately, I find and conclude that Johnson
was unlawfully discharged.
Johnson was first hired by Respondent in 1990; he was em-
ployed as a pipefitter until he quit in May 1993. He was re-
hired as a pipetester’s helper on August 26, 1993, at a substan-
tially lower pay rate. From his re-hiring until March or April
1994, Johnson worked mostly under Pipe Department Foreman
Timmy Benoit. From the time that he left Benoit’s crew until
his discharge, Johnson worked on the crew of Foreman John
Lindsay. Benoit and Lindsay reported directly to Pipe Depart-
ment General Foreman John Whittington. At the time of John-
son’s discharge, he worked on LSD-51; the pipefitting (as op-
posed to pipetesting) general foreman for LSD-51 was William
Fedrick; Fedrick also described himself as the pipe depart-
ment’s “general foreman over the ship,” and he had some au-
thority superior to that of Whittington. Fedrick discharged
Johnson.
Johnson testified that, beginning in September, he regularly
wore “Union-Yes” stickers on his hardhat, a union button, and
a union T-shirt. Johnson testified that on his crews, no other
employees wore prounion insignia. Johnson did testify in the
representation case hearing and it is undenied that in September
1993, he told Benoit and Whittington that he was going to do
so; neither supervisor commented. On cross-examination Lind-
say admitted (vol. 96) that, when Johnson worked on his crew
of approximately 12 employees, Johnson spoke to other em-
ployees in favor of the Union, and Lindsay admitted that John-
son was the only employee on his crew who wore prounion
insignia. Fedrick and Foreman James Walker were the supervi-
sors who were directly involved in Johnson’s discharge, and
they denied seeing Johnson’s prounion insignia or knowing of
his prounion sympathies. I found Johnson, and Lindsay, credi-
ble in the testimony about Johnson’s prounion insignia, and I
conclude that, at the time of Johnson’s discharge, all of Re-
spondent’s production supervisors who worked around Johnson
knew of his prounion insignia and sympathies.
Johnson testified that during September, shortly after he told
Benoit that he was going to testify in the representation case,
Benoit spoke to him when they were alone. According to John-
son:

Well, Timmy told me: “Eddie, personally, you know, I
don’t care if the Union come in because if the Union come
in, you guys will probably get more money . . . because I
am at the bottom of the pay scale for foremans.
But if I was you, I would be careful who I talk to about
the Union. There was a guy named Joe Melton who used
to work here for me. Just the way you are talking the Un-
ion, that is the way he was talking.
Black Abadie [Pipe Department General Foreman Carl
(Black) Abadie] transferred him [Melton] to Westwego,
AVONDALE INDUSTRIES

1313
but two weeks later they fired him. Black and John [Whit-
tington] would do the same thing to you. If I was you, I
would be real careful, because I have heard that anybody
that is affiliated with Union people, they want to fire them.
Now, we had this conversation, but, we didn’t have
this conversation, because anybody that asks me I will
deny it.
I said, “Well, Timmy, I don’t care what these people
think. Avondale is still surrounded by America, and this is
America.”

Based on this testimony by Johnson, paragraph 8 of the fourth
complaint alleges that, in violation of Section 8(a)(1), Respon-
dent, by Benoit, “threatened to transfer or discharge employees
if they continued to aide or support the Union.”366 (As dis-
cussed below, Joseph Melton is an alleged discriminatee who,
on July 30, 1993, was transferred from Benoit’s supervision to
the Westwego yard; then, on August 23, 1993, he was dis-
charged from the Westwego yard. The General Counsel con-
tends that this testimony constitutes an admission in Melton’s
case, as well as an independent violation of Section 8(a)(1).) As
discussed below, Benoit denied this testimony by Johnson.
Johnson further testified that in March 1994, when he,
Leadman Ollie Pinckney, and employee——— Riggs were
talking to Lindsay:

Well, they were giving out raises in the yard, so I come
to Mr. Lindsay about a raise. He said, “Personally I don’t
like your attitude. You are always talking to these Union
people and you are union. Why don’t you ask them for a
raise?”
That is when Ollie stepped in [and] said, “The man’s
personal beliefs don’t have anything to do with his work.”
That is when Lindsay said, “Well, I didn’t hire him. He
knew what the money was when he took the job.” Then he
walked away.

Based on this testimony by Johnson, paragraph 10 of the fourth
complaint alleges that, in violation of Section 8(a)(1), Respon-
dent, by Lindsay, “informed its employees that a wage increase
had not been granted due to an employee s aiding or assisting
the Union.”367
Johnson further testified that in April, he and Riggs were
working together when General Foreman Whittington ap-
proached. According to Johnson:

Well, John [Whittington] rode up on a bike, and I said,
“John , I asked John Lindsay about a raise. He [Lindsay]
said there is nothing he can do.”
[I asked Whittington:] “Can you get me a raise? As
you all know, you are underpaying me.”
So John Whittington said, “I can get you a raise if your
attitude wasn’t so bad.”
I said, “John, you can give me a raise now, or you can
wait until the Union comes. Once the Union comes, you
are going to have to give me a raise.”
So he looked at me and he said, “That Union is going
to get you and a whole lot of other people ran away from

366 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against Johnson, as well as the
charge in Case 15–CA–12171–1.
367 Id.
Avondale.” And he turned around, got on his bike and
rode off.

Based on this testimony by Johnson, paragraph 11 of the fourth
complaint alleges that, in violation of Section 8(a)(1), Respon-
dent, by Whittington: “(a) advised an employee that he had
been denied a wage increase because he had aided or assisted
the Union; and (b) threatened an employee with discharge be-
cause he had aided or assisted the Union.”368 As discussed be-
low, Whittington testified for Respondent, but he did not deny
this testimony by Johnson, and I found Johnson’s testimony
credible.
Johnson’s Discharge—The General Counsel’s Evidence
On March 11, Fedrick and Foreman Lawrence Mullins is-
sued a warning notice to Johnson. The issuance of this warning
notice is not alleged to be a violation of the Act, but it is rele-
vant background. On the warning notice, the supervisors
checked neither general offense nor major offense number un-
der the Avondale Employees’ Guide. “Time of offense” is
stated as 12:30 p.m., when employees are supposed to have
returned to their work stations from lunch. The reason for the
warning notice is stated as: “Return to the work place late after
lunch. Left to see timekeeper at lunch. Did not return to the
work place until 1:32. Did not notify foreman.”
On June 1, Johnson was working on a ship that was on the
ground. Johnson worked with Leadman Pinckney who figures
prominently in this narrative, but who did not testify. Johnson
testified that Pinckney told him to leave the ship and go into the
yard to get: (1) some stainless steel flanges from a supply cage
that is controlled by Foreman Mullins (“Mullins’ cage”); (2)
some flanges and gaskets, and 16 bolts with nuts, from a pipe-
storage cage (pipe cage); (3) a grinder from Johnson’s tool box
which was in a gang box,369 and (4) some cutting blades that
were available in Fedrick’s office that was on the ground. John-
son testified that after he got these instructions from Pinckney,
he walked down a stairway to the dock and began to go; about
the yard as Pinckney had instructed him to do.370 Where John-
son went, and how long he took to go to each place, are issues
in this case.
Johnson testified that on his way to Mullins’ cage he met
employee Vernon Forest, a paint department employee who
was operating a “Bobcat” street-sweeper. Johnson testified that
he and Forest spoke for “[f]orty-five seconds to a minute,
maybe.” Then Johnson walked on to Mullins’ cage where, after
2 or 3 minutes, he found some of the flanges that he was sent
for. Then he went to the pipe cage where, after searching, he
found other flanges, the gaskets, and the nuts and bolts. Then
he went to his toolbox where he got the grinder and some
wrenches. He then went to Fedrick’s office for the blades, but
he found the office locked. Then he started back toward the
ship, but, at the time, he realized that the job that Pinckney’s
crew was working on could not have been performed without
the blades. As he was walking, Johnson turned into a restroom
where he stayed “about ten minutes.” He then continued toward
the ship; as he got almost to the ship, which was at wetdock-2,
he saw a bicycle that was not being used. Johnson put the tools

368 Id.
369 Again, a gang box is a larger box that can hold several tool boxes
and can be, itself, locked.
370 The transcript, vol. 57: p. 11,748, L. 25, is corrected to change
“crawl” to “walk.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1314
and supplies in the basket of the bike, and pedaled to wetdock-
3, about a “quarter of a mile” away. Johnson testified that he
went to wetdock-3 because he knew that he could get the
needed blades at the pipetesters’ cage there. Johnson testified
that when he first got to wetdock-3 he saw Lindsay and told
him that he was there to get blades. After he got to the pipetest-
ers’ cage, he was required to wait for “four or five minutes” for
the attendant to get to him and give him the blades. On his way
back from wetdock-3, Johnson further testified, he saw Lindsay
again; Lindsay asked him if he had gotten what he needed, and
Johnson replied affirmatively. (Lindsay did not deny this testi-
mony by Johnson.) Johnson testified that, when he got to the
ship:

Well, I had four plastic bags with different things in
them. And I was holding the bag, just walking up the
stairs. And I stopped a couple of times at different levels,
and when I got to the top, [leadman] Nat, Nathaniel
McGowen . . . said, “Blue Eyes [Fedrick] wants to see
you. I think he is going to fire you.”

Just how many bags Johnson was carrying when he got back to
the ship is an issue in this case. Here, it is to be noted, Johnson
testified both that there was “the” one bag, and that there were
“four plastic bags.” Johnson later testified that he was carrying
25 pounds of bags when he climbed the stairs where he was
met by McGowen.
Johnson went to the ship-board office of Foreman Walker, as
McGowen had told him to do. When he got to Walker’s office
he was met by Walker and Fedrick. According to Johnson:

[Fedrick] said, “I watched you go to three cages. You
stopped and talked to a guy on a Bobcat for ten minutes.
Then you came back, got on the bike; you went to Wet-
dock-3.”
I said, “Everything you said I did, that is what I did,
except talk to somebody for ten minutes. The conversation
with that guy only took about a minute, if that much.”
He said, “Well, I am terminating you for deliberately
loafing on the job. Let’s go down to my office.”

Johnson was, at that point, discharged.
Johnson, Walker and Fedrick went to Fedrick’s office on the
ground. There, Fedrick wrote out a warning notice to Johnson,
marking the box for “Other” Major offense. As the reason for
the warning Fedrick wrote: “Immediate Discharge offense #2.
Deliberate loafing during hours of work.” Fedrick and Walker
signed the warning notice. During the process of drafting the
warning notice, Johnson testified, Fedrick stepped out of the
room. While he was gone, Walker told him: “I didn’t have
nothing to do with this. I don’t even know what it is about, he
said, but Blue Eyes is my general foreman. I have to sign it.”
As discussed below, Walker denied this testimony by Johnson.
After Johnson left the premises, Fedrick signed the ASI-22
(discharge) form necessary to process Johnson’s discharge. On
it, as “Explanation for Action” there are typed (1) a recitation
of the Avondale Employees’ Guide’s wording of immediate
discharge offense-2, and (2) a listing of times and places that
Johnson went about the yard. This document, the General
Counsel’s Exhibit 352, was adequate to prove the fact of dis-
charge, but I do not consider the listing of times and places as
evidence on the factual issue presently before me: where did
Johnson go and when did he go there? The listing of times and
places is, of course, hearsay to that issue, and it is not hearsay
evidence that comes within the business-records exception
because it is a “business record” of no more than what Fedrick
told the human resources department that Johnson had done.
For nonhearsay on the issue presently before me, evidence such
as the testimony of one or more witnesses was needed. Respon-
dent’s evidence on the issues of where Johnson went, and
when, will be discussed below.
In Johnson’s case, the General Counsel also called current
employee Forest who testified (vol. 60) that the exchange be-
tween Johnson and him lasted, “not even a good minute or so.”
Johnson’s Discharge—Respondent’s Evidence
Benoit (vol. 80) testified that he had been instructed to act in
conformance with the TIPS card and the Foreman’s Guide, and
he flatly denied ever stating to Johnson that Melton had been
transferred to Westwego and then discharged because he had
been talking about the Union. As will be discussed in more
detail in Melton’s case, Benoit testified that transfers such as
Melton’s were the normal part of business, but he admitted on
cross-examination that he had had no notice of Melton’s im-
pending transfer to Westwego. Benoit also denied that he told
Johnson that what had happened to Melton would happen to
him if he continued his union activities.
Lindsay (vol. 96) testified that Johnson asked him several
times about getting a wage increase. On those occasions he
would explain a two-tier wage system that Respondent insti-
tuted in early 1994; he also told Johnson that he should have
gotten the matter of his wage rate settled before he accepted re-
hiring. Lindsay testified that he told Johnson that he should go
see the pipe department superintendent about his wages, but he
flatly denied telling Johnson that he did not like his attitude,
that he was “Union,” and that he should go see the Union if he
wanted a raise.
Fedrick’s Testimony on Johnson’s Discharge that is Stricken
Well before Johnson was called to testify, the General Coun-
sel subpoenaed from Respondent all notes and memoranda that
had been made by supervisors concerning Johnson’s discharge.
Some matters were then produced but, as it turned out, not all.
Respondent first called Fedrick to testify on day-71 of the
trial; in direct examination, Fedrick was asked nothing about
Johnson’s discharge, but, during cross-examination on day-72,
pursuant to Rule 611(b), he was interrogated by the General
Counsel about the Johnson discharge. During that examination,
Fedrick testified that he had watched from the deck of the ship
as Johnson walked, and bicycle-rode, about the yard for “over
an hour.” Fedrick was asked and he testified:

Q. Other than watching Mr. Johnson, did you do any-
thing else while you watched Mr. Johnson?
A. Like what?
Q. Well, I am really asking you, did you do paper-
work? Did you make telephone calls?
A. No.
Q. Did you do anything?
A. No.
Q. You just watched Mr. Johnson?
A. Correct.

As it soon came to light, however, Fedrick had, indeed, been
doing something while he watched Johnson.
On day-77 of the trial, Respondent announced that Respon-
dent had “newly discovered” documentary evidence to produce
in response to the demands of the General Counsel’s subpoena.
AVONDALE INDUSTRIES

1315
After that production, Respondent recalled Fedrick who testi-
fied that, as he watched Johnson walk about the yard on June 1,
he made notes of the places and times on a pad that he carried
with him. Without the notes before him, Fedrick recited a
point-to-point itinerary that Johnson had taken about the yard.
Fedrick disclaimed memory, however, of the times that John-
son reached various points in the yard. Then Respondent had
marked its Exhibit 365. When counsel showed the exhibit to
Fedrick, the General Counsel objected to further direct exami-
nation on the document because it had not been produced pur-
suant to the General Counsel’s subpoena duces tecum. The
General Counsel cited Bannon Mills, 146 NLRB 611 (1964),
which prohibits a party from introducing in its own case sub-
poenaed documents that have not been produced to the request-
ing party. Counsel for Respondent represented that she had not
known of the existence of the notes until the day before, and
that the notes had been inadvertently missed during its initial
search to respond to the subpoena. Counsel interrogated
Fedrick about how the document had been found: Fedrick testi-
fied that during the preceding day, as he was being prepared to
testify, counsel had asked him to search for “the original docu-
ments.” Fedrick testified that he contacted a secretary who
found Respondent’s Exhibit 365 in Johnson’s departmental
personnel file. Respondent’s counsel then argued that the direct
examination should continue because she had proved that the
notes were newly discovered evidence within some exception
to Bannon Mills and because there was no prejudice to the
General Counsel by the production, even if the production was
considered to be late. I stated that, before the direct examina-
tion of Fedrick on the exhibit continued any further, I would
like to have the citations of any authorities Respondent might
have on the issue of newly discovered evidence and the issue of
prejudice under the Bannon Mills line of cases. Respondent’s
counsel responded that she would “withdraw” the exhibit and
proceed to other parts of Fedrick’s direct examination, which
she did. (Actually, the document had not been offered at that
point.) Of course, because it had been withdrawn, there was no
voir dire or cross-examination of Fedrick on the document. The
General Counsel moved to strike Fedrick’s testimony related to
the notes that had not been produced, but I denied the motion
because I was leaving it open to Respondent to show that the
document was admissible (by authority, by evidence of the
good faith but unfruitful search, or by both).
Several Bannon Mills issues surfaced during the course of
this trial. On day-94, I issued a written statement of my reason-
ing for several of my rulings; that statement is in the record as
Administrative Law Judge’s Exhibit 4.371 Even though Respon-
dent’s Exhibit 365 had, at that point, been withdrawn, I stated
in Administrative Law Judge’s Exhibit 4 that I considered the
Bannon Mills objections to the exhibit to have been valid.
On day-104, Respondent again presented Fedrick, and it then
offered (for the first time) Respondent’s Exhibit 365. As Re-
spondent attempted to lay a foundation for the offer, Fedrick
testified that he made most, but not all, of the notations on Re-
spondent’s Exhibit 365. There is a comment at the end of the
exhibit which Fedrick testified that he did not make. Fedrick
testified that he believed that he knew who wrote the additional
notations on the exhibit, but he was not thereafter asked who
that was, and he was not asked other questions that would com-

371 The document was originally received as ALJ-3, but it was later
remarked as ALJ-4.
plete the identification of the entire document. Nevertheless,
Respondent then offered the entire document; i.e., Respondent
did not except from its offer the comment on the exhibit that
had not been identified by Fedrick. The General Counsel again
objected on the basis of the Bannon Mills principles, and he
further objected to the fact that no foundation had been laid for
the comment that was not made by Fedrick. I sustained the
Bannon Mills objection, citing Administrative Law Judge’s
Exhibit 4, and I said that I need not pass on the issue of founda-
tion for the comment made by someone other than Fedrick. The
document, at that point, was placed in the rejected exhibits file.
As the document had been rejected on the basis of Bannon
Mills, there was no need for, and there was no opportunity for,
the General Counsel to conduct voir dire on the document, and
there was, of course, no cross-examination of Fedrick on the
document’s content.
On day-147, I announced to the parties that I considered my
statements in Administrative Law Judge’s Exhibit 4, as they
applied to Respondent’s Exhibit 365, to have been erroneous
because the substance of the withheld notes had been furnished
to the General Counsel in the form of the entries in the “Expla-
nation for Action” section of the General Counsel’s Exhibit 352
(the ASI-22 form for Johnson, as noted above). Therefore, I
stated, there was no possible prejudice to the General Counsel
in the failure to produce, in specie, the document from which
the wording of the General Counsel’s Exhibit 352 had obvi-
ously been taken. By Respondent’s providing the General
Counsel’s Exhibit 352 well before Johnson testified, I stated,
the General Counsel had known what the specifics of the de-
fense on Johnson were, whether or not the General Counsel had
been furnished the source-document for the General Counsel’s
Exhibit 352. On day-150, after argument, I restated my reason-
ing, and I struck all references to Johnson’s case in Administra-
tive Law Judge’s Exhibit 4. I further stated that I was leaving it
to Respondent to reoffer Respondent’s Exhibit 365 at some
subsequent point, if it chose to do so.
On day-153, Respondent reoffered Respondent’s Exhibit
365, but it did so without presenting Fedrick as a witness. The
General Counsel objected and argued that, because I had previ-
ously sustained their Bannon Mills objections during the direct
examination of Fedrick on day-104: (1) he had not been given
any opportunity to conduct voir dire examinations of Fedrick
on issues of identification other than those issues that were
raised under Bannon Mills (such as, who made the comment on
Respondent’s Exhibit 365 that Fedrick did not make, when was
it made, whether there had been a second page to the document,
and like lines of inquiry); and (2) he had not had any opportu-
nity to cross-examine Fedrick on his testimony about the nota-
tions that he claimed that he made. The General Counsel argued
that receipt of the document without affording him the opportu-
nities for voir dire and cross-examination would be erroneous
and extremely prejudicial. I agreed with the General Counsel,
and I again rejected the document, not because of the Bannon
Mills principles, but because of the fact that the witness was not
being presented for purposes of vior dire and cross-
examination. At the same time, however, I told Respondent that
the document could be re-offered when it simultaneously pre-
sented Fedrick as a witness. On day-154, again without present-
ing Fedrick as a witness for purposes of voir dire and cross-
examination, Respondent reoffered its Exhibit 365. Counsel
stated:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1316
MS. CANNY: With respect to Respondent’s Exhibit 365
that was initially offered by us yesterday, the hand-written
notes of Mr. Fedrick, we have determined we are not go-
ing to re-call Mr. Fedrick. We believe that an opportunity
was provided when he initially appeared here to question
him concerning this, that he has sufficiently identified this
document on the two separate occasions, and we would
move that it be received.

(It is to be noted that counsel did not dispute that the General
Counsel had not had an opportunity to cross-examine Fedrick
on the subject matter of the document. Moreover, it is more
than obvious that the real reason that Respondent’s counsel did
not recall Fedrick when she offered the exhibit was that, had
she done so, the General Counsel would have been able to con-
front Fedrick with his then-palpable lie of day-71 that he had
done no “paperwork” as he stood at the railing and watched
Johnson go about the yard.) the General Counsel again objected
on the grounds that he had not had an opportunity to conduct
voir dire on the exhibit and that he had not been given any op-
portunity to cross-examine Fedrick on the substance of the
document.
I agreed with the General Counsel that identification of the
document had not been completed and that the General Counsel
had never been afforded an opportunity to cross-examine
Fedrick on the substance of the document. Identification of
Respondent’s Exhibit 365 had not been completed because: (a)
Fedrick never testified who made the final comment on the
exhibit, and (b) the General Counsel was never afforded oppor-
tunity to conduct voir dire examination of Fedrick on that
comment or the notations that Fedrick claimed that he had
made. Opportunity to cross-examine Fedrick on his testimony
about Respondent’s Exhibit 365 was never afforded to the Gen-
eral Counsel because the document had been (1) not produced,
or (2) withdrawn, or (3) rejected before Fedrick had been
passed for cross-examination. Therefore, the document re-
mained, and does remain, rejected. The final rejection at trial
was based on Fedrick’s not being presented as a witness when
Respondent’s Exhibit 365 was re-offered, but I have reconsid-
ered my Bannon Mills ruling, as well.
Because Respondent failed to recall Fedrick and thereby
prevented his being subjected to voir dire and cross-
examination when it reoffered the exhibit, it has not been
proved that Respondent’s Exhibit 365 contains the notes that
Fedrick created on June 1. But assuming that what was offered
as Respondent’s Exhibit 365 was genuine, further reflection on
the matter causes me to believe that, had the exhibit been of-
fered on day-77, I should have then rejected it on the basis of
Bannon Mills. Because it could have been found by exertion of
a reasonable amount of effort, Respondent’s Exhibit 365 was
not newly discovered evidence within any possible exception to
Bannon Mills. Moreover, the General Counsel did suffer sub-
stantial prejudice by its not being produced when subpoenaed.
One element of the prejudice to the General Counsel lies in the
fact that, when he testified on day-72, Fedrick had testified
falsely that he had done nothing else as he stood at the railing
and watched Johnson walk about the yard. As was revealed 5-
trial days later, Fedrick had done something; he had made
notes. Perhaps he thought that the notes had been lost when he
testified on day-72, but, even if he did, Fedrick’s testimony that
he had done nothing as Johnson walked about the yard was
consciously false and, in my opinion, perjury. In making the
notes on June 1, Fedrick was making an attempt at case-
building, and he could not possibly have forgotten that he had
memorialized that attempt. Obviously, an affirmative answer
was called for when Fedrick was asked if he had done (1) “any-
thing else,” or (2) “paperwork,” or (3) “anything,” as he
watched Johnson walk about the yard. Instead, Fedrick an-
swered: “like what?,” and “no” and “no.” If Fedrick had an-
swered any of these questions truthfully, the General Counsel
would have then demanded production of the subpoenaed notes
before there was any further 611(b) examination. Therefore, the
General Counsel did suffer substantial prejudice because the
possible effectiveness of his 611(b) examination of Fedrick on
day-72 had been dissipated by Fedrick’s consciously false tes-
timony, as well as the failure to produce the document when
called for by subpoena duces tecum in the first place.
As well as excluding records that had been subpoenaed but
withheld, Bannon Mills prevents the withholding party from
introducing “secondary evidence regarding matters provable by
such records.” Such is Fedrick’s testimony about the points to
which he saw Johnson walk. The withheld document shows the
places that Johnson went, as well as the times. As noted above,
the General Counsel moved to strike all testimony by Fedrick
regarding the subject of the withheld notes which describe
where and when Fedrick saw Johnson go from point to point in
the wetdock-3 area. The motion should have been granted when
made, and I do so now. I shall not consider Fedrick’s testimony
about the places he claims to have seen Johnson go. (Again,
Fedrick testified that he did not independently recall the times
that Johnson went from point to point.) Therefore, only to be
considered is Fedrick’s testimony about what happened before
Johnson left the ship and what happened after he returned.
Fedrick’s Other Testimony about Johnson’s Discharge
During his 611(b) testimony on day-72, Fedrick testified
that, as well as Johnson’s conduct on June 1, he discharged
Johnson because of his conduct “prior to that, leading to this
day.” Also during the day-72 examination, Fedrick acknowl-
edged that the job of a pipefitter’s helper is to go and get things
like flanges, gaskets, bolts and blades. He further acknowl-
edged that he keeps cutting blades in his office on the ground
and that office is padlocked when he is not there.
When called by Respondent on day-77, Fedrick testified that
during 1994, before Johnson’s discharge, he twice spoke to
Johnson about loafing and “walking around,” and he told John-
son that he needed to work harder, but he did not testify that he
gave Johnson an oral warning of discipline. Fedrick further
testified that he issued Johnson’s March 11 warning notice, as
quoted above, because during the lunch period on that date
Johnson had gone to Respondent’s administration building to
get a paycheck problem resolved and that Johnson had stayed at
the administration building beyond the 12:30 deadline for re-
turning to work without having signed out on his foreman’s
MCR. (Fedrick knew that Johnson had been to the administra-
tion building because Fedrick saw him there when Fedrick was
there on other business.)
Fedrick testified that, on June 1, while he was observing
Johnson from the main deck of the ship, he asked Pipe Depart-
ment Foreman James Walker and Leadman “Nat” to join him
and observe Johnson also. While they were watching, Leadman
Ollie Pinckney came on deck; Pinckney told Fedrick that he
was looking for Johnson, and Pinckney stated that Johnson “has
been gone a while.” Fedrick told Pinckney to go back below
and he would handle the problem. When Johnson returned to
AVONDALE INDUSTRIES

1317
the ship, Fedrick sent Walker to bring Johnson over, and then
Fedrick told Johnson that he was discharged. Fedrick’s account
of what was said on the ship, and what happened thereafter in
Fedrick’s presence, does not differ significantly from Johnson’s
account. (The leadman “Nat” was not called to testify;
Walker’s testimony is discussed below.)
During the cross-examination of day-77, Fedrick testified
that Johnson had only one small plastic bag with him when he
returned to the ship. During that examination, Fedrick repeated
that, when Johnson returned to the ship: “James [Waker] went
to the top of the stairs and brought him over there to me, and
that is when I told him that he was gone for a considerable
amount of time off the job and that we were going to terminate
him for loafing.”
Walker’s Testimony about Johnson’s Discharge
Walker (vol. 79) testified that Fedrick did ask him to stand
with him by the railing and watch Johnson. Walker first saw
Johnson talking to the Bobcat operator. Then Walker saw John-
son talk to someone on a motorcycle, then go to a supply cage,
then go to a restroom, then go to a bicycle; Johnson got on the
bicycle and pedaled out of view. “Sometime later,” Walker
further testified, Johnson returned with “a small plastic bag
with some material in it.” Walker denied seeing Johnson go to
Fedrick’s office on the ground, denied seeing him talk to Fore-
man Lindsay, and denied seeing him approach his gang box.
Walker testified that it was “over an hour and ten minutes”
from the time he began watching Johnson until the time that
Johnson returned to the ship.
Walker further testified that while he and Johnson waited for
Fedrick in Fedrick’s ground office, Johnson asked why he was
being discharged. Walker told Johnson that he would have to
ask Fedrick. Walker flatly denied telling Johnson that he had
had nothing to do with the discharge and that he would sign the
warning notice only because Fedrick was his general foreman.
On cross-examination, Walker was asked and he testified:

Q. How long did you observe Eddie Johnson talking to
the man on the Bobcat?
A. He was there probably 10 minutes. . . .
Q. How long was Eddie Johnson in the bathroom?
A. Fifteen to 20 minutes.

Walker testified that the small plastic bag that Johnson was
carrying when he returned to the ship was transparent, and he
could see no blades or gaskets in the bag, only flanges, nuts,
and bolts.
Johnson’s Testimony about Threats—Credibility Resolutions
and Conclusions
On cross-examination, Lindsay admitted that Johnson was
vocal in his support of the Union to other employees, that John-
son wore prounion insignia, and that Johnson was the only
employee on his crew to wear prounion insignia. Lindsay fur-
ther acknowledged that Johnson mentioned the Union when
asking for a raise, sometimes saying that he would get one
when the Union came in. Lindsay made several other admis-
sions that will be discussed infra. Johnson testified that Lindsay
threatened him with a denial of a wage increase, but Lindsay
made several important admissions (on other topics) during his
testimony, and I found Lindsay, overall, to have been a credible
witness. I found Lindsay credible in his denial of Johnson’s
testimony on this point. I shall recommend dismissal of this
allegation of the complaint.
Johnson’ testimony about a threat by Benoit, however, re-
quires a different result. Johnson acknowledged that the June 8,
1994 affidavit that he gave to the Regional Office investigators
in support of the charge filed over his discharge states that he
could not then remember the name of the employee to whom
Benoit had referred when Benoit told him that another em-
ployee had been transferred to the main yard and then dis-
charged because of that employee’s union activities. Johnson,
however, testified that at the time of the exchange with Benoit,
he had never heard of Melton and he could not remember Mel-
ton’s name when he gave his affidavit. Johnson testified that
Melton’s name later came to his memory without prompting
from anyone else. I believe this testimony by Johnson. Johnson
was also credible in his testimony that Benoit told him that
Melton had been transferred to Westwego because he had spo-
ken up for the Union, as Johnson was then doing, and that the
same thing could happen to Johnson if he continued to do so.
Benoit, however, was not credible in his testimony on the point.
Although he was fairly poised when he testified about Melton’s
transfer from the main yard to Westwego (and other topics),
Benoit became much the less so when he was testifying about
his exchange with Johnson about that transfer. I got the distinct
impression that Benoit was not telling the truth on this point.
Moreover, Benoit demonstrated a willingness to lie under oath
in his later account of the transfer of Melton to Westwego. (As
discussed in Melton’s case infra, Benoit testified that Melton
was transferred because of lack of work at the main yard, a
defense that not only went uncorroborated, it was contradicted
by Production Vice President Simpson, and it was not even
mentioned by Respondent on brief.) I credit Johnson over Be-
noit. Telling an employee that another employee had been
transferred because of his union activities, and then discharged,
and that “I have heard that anybody that is affiliated with union
people, they want to fire them,” is certainly a threat that would
tend to restrain the employee in the exercise of his Section 7
rights. I conclude that Respondent, in violation of Section
8(a)(1), by Benoit, in September 1993, threatened its employees
with transfer or discharge if they continued to support the Un-
ion.
Whittington’s undenied threat to Johnson that the Union “is
going to get you and a whole lot of other people ran away from
Avondale,” is, of course an unadulterated threat of discharge,
and I find and conclude that Respondent, in violation of Section
8(a)(1), by Whittington, in April 1994, threatened its employees
with discharge if they supported the Union.
Whittington did not, however, tell Johnson that he “had been
denied a wage increase” because of his union activities, as fur-
ther alleged. Whittington told Johnson that he could get John-
son a raise if he did not have such a “bad attitude,” but he did
not say that a wage increase had already been denied Johnson.
While the term “bad attitude” is often used as a shibboleth for
“union-adherent,” the Union had not been mentioned in the
exchange by that point, and it was first mentioned by Johnson.
Johnson had just received the warning notice of March 11, and
it may be equally inferred that Whittington was referring to
that. I shall recommend dismissal of that allegation of the com-
plaint.
Johnson’s Discharge—Credibility Resolutions
and Conclusions
Without objection by the General Counsel on the basis of
Bannon Mills, or anything else, Walker testified on direct ex-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1318
amination that he watched Johnson go from point to point in the
yard for “over an hour and ten minutes.” Johnson did not wear
a watch, and he did not make any testimonial appraisal of how
long he was absent from the ship. This testimony by Walker
therefore stands undenied, and I credit it. I also credit the
statements that Walker made on cross-examination that John-
son and the Bobcat driver, Forest, stopped and talked for 10
minutes. I have taken into consideration the fact that Forest is a
current employee, but he was simply unimpressive as a witness
on this issue, and I had no confidence in his testimony on this
point. Over Johnson’s testimony, I also credit Walker’s testi-
mony that he saw Johnson disappear into the restroom for 15 to
20 minutes. I further credit Walker’s denial that he told Johnson
that he did not know what the matter was all about during the
brief period that he and Johnson waited for Fedrick to return
with a warning notice. I further do not believe Johnson’s testi-
mony that Pinckney told him to go to Fedrick’s office on the
ground to get blades, or anything else. Walker credibly denied
seeing Johnson go to Fedrick’s office; also, the office was al-
ways locked when Fedrick was not there, something that
Pinckney would know; Pinckney would not have sent Johnson
to Fedrick’s office without checking, or having Johnson check,
to see if Fedrick were not on the ship, the place he usually
worked.
Even if Pinckney did tell Johnson to get blades, even by
Johnson’s own account he did not tell him to go the substantial
distance to wetdock-3 to get them. I further credit Walker and
Fedrick that Johnson had only one bag with him when he re-
turned to the ship, and that Johnson then had no blades with
him. I believe, and find, that Johnson saw a free bicycle when
he left the restroom, and he used it to go to wetdock-3 for no
purpose related to his assignments by Pinckney. It is undenied
that Johnson saw Lindsay at, and as he returned from, the wet-
dock-3 area, but Lindsay would not have known whether
Pinckney had sent Johnson there, and he would have had no
reason to question Johnson about his representation; leadman
send helpers throughout the yard to get things without clearing
such assignments with their foremen. There is not a credible
estimate of how long it took Johnson to go to wetdock-3 and
return, but, from the various descriptions of distances in the
record, I find that it was at least 20 minutes.
Johnson was twice-threatened because of his union activities.
The second threat, by Whittington, was categorical; to “run off”
is common shop parlance for “discharge.” And that threat oc-
curred shortly before Johnson’s discharge. Therefore, the Gen-
eral Counsel has clearly presented an prima facie case that
Johnson was discharged in violation of Section 8(a)(3), and
Respondent’s defense for that discharge must be examined.
Fedrick testified that, although Johnson was guilty of an im-
mediate discharge offense under the Avondale Employees’
Guide, he nevertheless would have only issued Johnson another
warning notice but form his prior misconduct as memorialized
in the warning notice of March 11. In this posture, Johnson’s
case is no different from those of the 883 employees listed in
the case of discriminatee Marshall who, during the 1990–1994
period, received three (not just two) warning notices in 12-
month periods without being discharged. Clearly, then, Re-
spondent has not presented a defense that shows that it would
have discharged Johnson even absent his known protected ac-
tivities. I therefore find and conclude that by discharging John-
son Respondent violated Section 8(a)(3) of the Act.
6. Employees warned or discharged for quitting work early
a. Donald Mason
Donald Mason (vols. 22, 51), who is employed by Respon-
dent as an electrician, was issued one warning notice on De-
cember 9, 1993, and he was issued another warning notice on
May 19, 1994.372 The second complaint, at paragraph 131, and
the fourth complaint, at paragraph 31, allege, respectively, that
by the issuance of the warning notices Respondent violated
Section 8(a)(3). The General Counsel contends that Respondent
issued the warning notices because of Mason’s known union
activities and expressions of sympathy which included his
wearing of prounion insignia. Respondent answers that the
supervisor who caused both warning notices to be issued to
Mason did not know of any prounion sympathies held by Ma-
son when the December warning notice was issued, although
that supervisor did suspect Mason of prounion sympathies
when he issued the May warning notice. Respondent further
answers that Mason was issued the warning notices solely be-
cause, on December 8, he left his work area before 3:30 p.m.,
and, on May 13, Mason left his work area before 12 noon
(lunchtime). The General Counsel replies that the defenses for
the warning notices are pretexts because Mason did not leave
his work area early on either date. Alternatively, the General
Counsel contends that other employees were allowed to engage
in such conduct with impunity and that Mason was treated dis-
parately. Ultimately, I find and conclude that Mason was
treated disparately on both occasions and that Respondent vio-
lated Section 8(a)(3) by the issuance of both warning notices.
Mason is an internal-communications technician in the elec-
trical department. Mason testified that, beginning with the ini-
tiation of the organizational attempt in March, and continuing
through the dates of his testimony, he wore “Union-Yes” stick-
ers on his hardhat. General Foreman Mark Poche (vol. 77) ad-
mitted that he saw Mason wearing prounion insignia on his
hardhat “from March to June 1993.” Also, from the start of the
campaign until the June 25 Board election, Mason regularly
wore a large union button on his shirts. Further according to
Mason, he also regularly used a pocket protector that had
“IBEW” printed on it. He also maintained a union sticker on his
lunchbox which, during the day, was stored in areas where
anyone else could see it. Alleged discriminatee Sidney Jasmine
(vol. 23) testified that he saw Mason wearing “Union-Yes”
stickers on his hardhat during the preelection period, and Jas-
mine further testified that he saw Mason wearing the stickers
daily until the week before Jasmine testified.
(1) Mason’s warning notice for quitting work before shift end
Background
As noted, general offense-4 of the Avondale Employees’
Guide is: “Wasting time, loitering or leaving the working place
without permission.” General offense-5 is: “Quitting work,
washing up, or going to the timeclock area before the specified
time.” As has been further noted, Respondent sounds a whistle
10 minutes before the end of each shift. The Avondale Employ-
ees’ Guide does not say what the employees are to do during
those 10-minute periods, and no memoranda to employees have
been issued on the topic. There was placed in evidence by Re-
spondent, however, a memorandum dated March 16, 1990,

372 All dates mentioned in Mason’s case are between April 1993 and
May 1994, unless otherwise indicated.
AVONDALE INDUSTRIES

1319
from Production Vice President Simpson to “All superinten-
dents, general foremen and foremen.” The stated topic is “Work
hours and supervision.” The memorandum states:

Normal working hours are from 7:00 a.m. to 3:30 p.m.,
with a 1/2 hour lunch break from 12:00 noon to 12:30 p.m.
Workers are allowed to discontinue work at 3:20 p.m. to
facilitate pickup of tools, cleanup of the work area, secur-
ing of materials, etc. No one should be allowed to leave
their work area at the end of the work shift until it is in a
safe and orderly condition. Loitering away from the job is
a violation of company work rules.

Several supervisors testified that this memorandum was often
reissued, and that it was often read, and reread, to the employ-
ees. There was no evidence to the contrary. There is, therefore,
no issue that there exists an announced work rule that employ-
ees must clean, and stay in, their work areas during the last 10
minutes of a shift.373 Indeed, both the General Counsel and
Respondent placed in evidence copies of many general offense-
4 and -5 warning notices that were issued because the employ-
ees had not followed this “quitting-work-early rule,” as I shall
call it. Nevertheless, although the General Counsel concedes
that there has been some enforcement of the quitting-work-
early rule, he contends that it was enforced disparately against
Mason on December 9.374
Before December 9, Mason had received one warning notice
for violation of the quitting-work-early rule. Mason was issued
a warning notice on April 23 by Electrical Department Foremen
Dell Thibodeaux and Louis Lester. The date and time of of-
fense is listed as “3:22 p.m., 4/22/93.” The box for General
offense-4 is checked, and the reason for warning space is com-
pleted: “Mr. Mason [was] wasting time [by] not cleaning at
cleanup time.” General Foreman Jerry Gerdes testified, without
contradiction, that he caused this warning notice to be issued to
Mason because he had found Mason sitting on a bucket at 3:22
p.m., rather than cleaning his work area.
Mason’s Warning Notice for Quitting Work Before
Shift End—the General Counsel’s Evidence
On December 8, Mason was assigned to work on an LSD.
The decks on the LSD are, going down, the main deck, the sec-
ond deck, the third deck, the fourth deck, and the fifth deck
(i.e., there is no “first deck” below the main deck). On Decem-
ber 8, Mason was assigned to work in the MMR-2, the second
main machinery room, of an LSD. The MMR-2 is amidships; it
spans the fourth and fifth decks below the main deck. While
there were other employees in the area, the only other electri-
cian in the area was Van Nguyen who was helping Mason.
Nguyen did not testify.
Mason testified that on December 8, he did not hear the 3:20
p.m. whistle that announces cleanup time, but he did hear a
public address system announcement that it was time for em-
ployees to clean up their work areas. Mason testified also that
he did not hear a 3:30 p.m. whistle, but, by his watch, he noted
when it became 3:30 p.m. At that point, and not before, Mason

373 An exception exists for employees who need to use the restrooms
to relieve themselves, as Terry testified in the case of discriminatee
Molaison, supra. This exception is not involved in Mason’s case.
374 The General Counsel further contends that there was disparate en-
forcement of the quitting-work-early rule in the case of the joint dis-
charges of alleged discriminatees Marty Bourgeois, Dwayne Braud, and
Glynn Zeringue, considered next in this decision.
testified, he and Nguyen quit work. They climbed stairways
until they got to the second deck, the deck immediately below
the main deck (where there was a gangway to the dock). Ac-
cording to Mason: “When I got to the second deck, he
[Nguyen] was coming behind me. But after I reached the sec-
ond deck, he started down the corridor, going forward; I don’t
know where he was after that.” Further according to Mason,
when he reached the stairwell of the stairs going up from the
second deck to the main deck:

there were some guys ahead of me waiting to go up the stairs.
And I got closer to it, and [General Foreman] Jerry Gerdes
came downstairs. Mr. Gerdes asked me for my clock number.
. . .
Well, I asked him what was the deal. . . .
He said it wasn’t 3:30 yet. . . .
I told him that my watch had 3:30 or a little after
3:30—3:32 or something like that. . . . I showed him my
watch. . . . I gave him my clock number. . . .
He said, “That is two, buddy.” And he walked away.

Mason testified that, at the time of the confrontation with
Gerdes, he was wearing his hardhat (with the “Union-Yes”
stickers on it). Mason testified that while he was in the stair-
well, there were about five other employees around, three of
whom were electricians. Mason could name none of the electri-
cians, but he did name employee Terry Perkins as one of the
two nonelectricians who were also standing near him. Mason
did not know what craft Perkins was in; Perkins was not called
to testify. Mason testified that he heard Gerdes say nothing to
the five other employees.
On December 9, Mason was issued another warning notice;
this one was signed by Foreman John Crutchfield and General
Foreman Jimmy Mancuso, a subordinate of Gerdes. Crutchfield
had checked the box for general offense-5 of the Avondale
Employees’ Guide. The date and time of offense is listed as
“12/8/93—Time: 3:28.” The reason for warning space is com-
pleted: “Quitting work before the specified time. . . . Final
Warning.”
On cross-examination Mason was asked and he testified:

Q. Now, there is a 3:20 whistle that blows at Avon-
dale. Correct?
A. Correct.
Q. And the 3:20 whistle means you stop your working
and you clean up your area. Is that correct?
A. Correct.
Q. Then there is a 3:30 whistle that blows at Avondale,
and that gives you the right to leave your work area and
proceed to leave the ship. Is that correct?
A. That is correct.
Q. And you are supposed to remain in your work area
between 3:20 and 3:30. Isn’t that true?
A. That is correct.

That is, Mason acknowledged that, as discussed above, there
was a rule that required him to stay in his work area until 3:30
p.m. Mason also acknowledged that, in two pretrial statements,
he did not mention that, when he was confronted by Gerdes at
the bottom of the stairs, other electrical department employees
were in the area. Finally, on cross-examination Mason was
asked if he knew whether his watch was right on December 8,
and he answered that he did not.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1320
Mason’s Warning Notice for Quitting Work Before Shift
End—Respondent’s Evidence
Gerdes (vols. 122, 123) testified that it was at 3:28 p.m. on
December 9 when he found Mason standing with three or four
other employees, none of whom were electrical department
employees, at the bottom of a stairway. (Gerdes testified that
Mason and the other employees were on the main deck, just
below the ladder going to the 01 deck, where there was another
exit from the ship, but the difference is not important.) Gerdes
testified that he was confident of the time because he regularly
synchronizes his watch with the plant whistles. Gerdes further
testified that for Mason to have been at the stairway at 3:28
p.m., he was necessarily required to leave his work area shortly
after 3:20 p.m. Gerdes agreed that he told Mason “that’s two,”
or words to that effect, and then he called Jimmy Mancuso,
general foreman over Crutchfield, and ordered that Crutchfield
issue a warning notice to Mason because of his conduct. Gerdes
testified that he ordered that the warning notice be made “final”
because he knew that Mason had previously been issued a
warning notice for the same conduct (referring to the April 23,
1993 warning notice, discussed above). Gerdes testified that he
did not see any prounion insignia then being worn by Mason,
and he had not known of any prounion sympathies that Mason
may have then held.
On cross-examination, however, Gerdes was asked about the
December 9 warning notice, and he testified:

Q. And do you recall in and around that time period,
Mr. Mason used to have a union sticker on his hardhat?
A. In December? I can’t remember that time period; if
it was before or after that that he put the union sticker on
his hat. It [was] somewhere in that vicinity. I am not ex-
actly sure; before or after December 9, ‘93. I don’t re-
member.

Further on cross-examination Gerdes denied remembering
whether Mason was wearing his hardhat when, on December 9,
he found Mason waiting to climb the stairway. Gerdes also
testified that he did not issue warning notices to the other em-
ployees whom he saw standing with Mason on December 9
because: “Those employees do not work for me.” Gerdes ac-
knowledged, however, that he knew that the Avondale Em-
ployees’ Guide states that “all supervisors” may issue warning
notices to all employees. Gerdes further admitted that, ordinar-
ily, if he saw employees of other crafts heading for a gangway
between 3:20 and 3:30 p.m., he would at least “challenge”
them; Gerdes acknowledged, however, that he did not chal-
lenge the employees he saw standing around with Mason on
December 9. Finally, Gerdes testified that he was reluctant to
challenge employees of other crafts between 3:20 and 3:30 p.m.
because they may be working odd shifts (e.g., from 2 to 10:30
p.m.).
Mason’s Warning Notice for Quitting Work Before
Shift End—Conclusions
Mason and Jasmine testified that Mason wore prounion in-
signia on his hardhat from early in the organizational attempt,
and thereafter. Moreover, General Foreman Poche admitted that
he saw Mason wearing prounion insignia during the preelection
period. Mason testified specifically that, when he was con-
fronted by Gerdes on December 9, he was wearing his hardhat
that bore two “Union-Yes” stickers on it.375 Gerdes first denied
knowing of any prounion sympathies that Mason may have
held, but later on cross-examination he testified that he could
not remember whether Mason had started wearing prounion
insignia before December. Gerdes rendered himself incredible
in this retreat. I credit Mason that, on December 9 (and before),
he was wearing prounion insignia, and I discredit Gerdes’ tes-
timony to the extent that he denied seeing it on or before De-
cember 9. I therefore find that relevant knowledge of Mason’s
prounion sympathies is established. The element of animus,
especially animus toward those employees who would wear
prounion insignia, is established throughout this decision. I
therefore conclude that the General Counsel has established a
prima facie case that the issuance of the December 9 warning
notice to Mason was unlawful, and the burden shifts to Re-
spondent to demonstrate by a preponderance of the evidence
that it would have taken the same actions against Mason even
in the absence of his known protected activities. Respondent’s
defenses must therefore be examined.
As Mason admitted, he was supposed to stay in his work
area until 3:30 p.m. I do not believe his testimony that he did
so. (Nor do I believe the implication of his testimony that he
thought that he had stayed in his work area until 3:30 p.m but
he could not be sure because he was not sure that his watch was
accurate.) The fact that other employees, from other crafts,
were standing around the stairwell, rather than going on up it,
shows that it was not 3:30 p.m. when Mason got to the second
deck; first-shift employees do not stand around after 3:30 p.m.;
they leave as soon as possible. I believe that, on December 9,
Mason got to a point as close to the timeclock as he thought he
could get without being seen by a supervisor. That point was at
the base of a stairway, at the top of which he would be observ-
able by any supervisor. Mason waited at the base of the stair-
way, waiting to rush up as soon as the 3:30 p.m. whistle blew.
Gerdes saw Mason there and knew that, because of the remote-
ness of Mason’s assignment that day, Mason must have been
away from his work area for several minutes.
Mason, however, was not alone. There were several other
employees who were similarly standing around the base of the
stairway, out of their work areas, waiting to get a jump on the
3:30 p.m. whistle. I credit Gerdes, over Mason, that none but
Mason was an electrical department employee. Nevertheless,
Gerdes did nothing about those other employees. Gerdes at-
tempted to excuse himself from disciplining those workers by
saying that they were not electrical department employees. All
employees, however, are categorically told by the Avondale
Employees’ Guide that they may expect discipline from any of
Respondent’s supervisors for violation of any of its disciplinary
rules, such as its quitting-work-early rule. Gerdes next tried to
explain his doing nothing about the other loafing employees on
the basis that they may have been on an odd shift. Of course, if
those employees were “working” on an odd shift, they would
not have been standing around the bottom of a stairway, with
Mason or anyone else. Finally, Gerdes acknowledged that if,
during the last 10 minutes of a shift, he saw employees of other
crafts approaching an exit to a timeclock, he would at least

375 Respondent contends that, at all times, employees are required to
wear hardhats in such production areas, as discussed in the case of
alleged discriminatee Leroy King, infra.
AVONDALE INDUSTRIES

1321
challenge them,376 but he admitted that he did not challenge
these employees who were doing the undeniable equivalent.
In summary, Respondent has not shown why, among the
group of employees that had quit work early on December 9,
Mason was singled out for discipline. Respondent has therefore
not proved that it would have issued the warning notice to Ma-
son even in the absence of his known prounion sympathies. I
therefore find and conclude that by issuance of the December 9,
1993 warning notice to Mason Respondent violated Section
8(a)(3).
(2) Mason’s warning notice for quitting work
before lunctime
Beginning in January, on Tuesdays and Fridays, Mason be-
gan wearing at work a prounion T-shirt, as well as his “Union-
Yes” sticker on his hardhat. Mason further testified that begin-
ning about April 6, the date of the shareholders meeting men-
tioned at various points in this decision, he began wearing a
union cap to work; he would place his hardhat over the cap
when working, but, when entering or leaving the yard, he wore
only the union cap on his head. On April 6, about 9:30 a.m.,
Mason signed out on the MCR of his supervisor, Crutchfield,
and went to the shareholders’ meeting. When he signed out
with Crutchfield, Mason was wearing a union T-shirt and a
union cap.
Mason testified that during the morning of Friday, May 13,
he told Crutchfield that he wished to leave work at noon.
Crutchfield agreed. “About 11:50 or 11:55,” according to Ma-
son, he went to Crutchfield’s office on the ship to sign out on
Crutchfield’s MCR. Crutchfield was not in his office, but the
MCR was. Mason signed it. At the time, according to Mason,
employee Romalis Martin was also at Crutchfield’s office to
sign out at noon; Martin signed out also. The MCR was re-
ceived in evidence; it does indicate 12 noon sign-out times for
Mason and Martin. According to Mason, he and Martin left the
ship “At about 11:58, 11:59 a.m. I am not sure.” Martin and
Mason proceeded “40 or 45 yards, maybe” to a timeclock and
punched out.
Received in evidence were two pages of Respondent’s trans-
action register for May 13. These pages reflect that Mason and
Martin punched out on the same electronic timeclock, number
22K,377 within the same half-minute, “11:99.” According to a
table for Respondent’s decimal-equivalent timekeeping system,
“.98” is 59 minutes after the hour; there is no designation on the
table for “:99,” but a clock-time of “:99” is apparently within
the last 30 seconds of an hour; therefore, Martin and Mason
punched out within one-half minute before noon. Mason testi-
fied that Martin punched out after he did.
When Martin and Mason finished clocking out, they walked
to the levee, up the levee (which is only five or six strides), to
the walkway on the top of the levee, and proceeded toward a
gate. As they walked on the levee walkway, Mason and Martin
were approached by Gerdes who was on a motorbike, heading

376 In the case of alleged discriminatee Edward Armstrong, a pipefit-
ter, Gerdes testified extensively about his duty to see that nonelectri-
cians are working when they should be, as discussed infra.
377 Respondent’s timekeeping supervisor, Mary Arnold (vol. 18), tes-
tified that there were about 100 such terminals in the yard. Arnold
further testified that the second columns of the transactions registers,
such as that in evidence, show for each employee’s workday, “which
terminal he went to, to punch in or out, the actual location of his punch
in or out.”
the opposite direction. Gerdes went past them; Gerdes stopped
and turned around; Gerdes drove back to be in front of the men;
Gerdes stopped and looked at the men, but he said nothing.
Mason and Martin continued walking.
On May 19, Crutchfield approached Mason and handed him
another warning notice. The warning notice is signed by
Crutchfield and Mancuso. The box for “Other” general offense
is checked; the date and time of offense is stated: “5/13/94—
12:00 noon.” In the reason for warning space is written, “Quit-
ting work early and clocking out before the specified time.
Final Warning.” According to Mason, when Crutchfield gave
him the warning notice Crutchfield told Mason that Gerdes had
ordered it “because he saw me leaving at 10 minutes to 12:00.”
Current employee Romalis Martin (vol. 54) testified that he
started working on Crutchfield’s crew “about spring of ‘94,”
and he started wearing a “Union-Yes” sticker on his hardhat
about 3 weeks thereafter. Martin was asked what happened to
the sticker, and he testified:

Well, I came to work one morning and my sticker was
missing off my hat. . . . I asked had anybody taken it off
because some of my co-workers, they were taking stickers
off as a joke and stuff, but my foreman [Crutchfield] told
me that he took it off because some superintendents were
asking who were wearing stickers and who weren’t.

Crutchfield was not called by Respondent, and this testimony
stands undenied.378
Martin further testified that he also received permission from
Crutchfield to leave the plant at noon on May 13. Martin did
not have an automobile at the plant, and he testified that, during
the morning, Mason agreed to give him a ride when they left at
noon. Martin testified consistently with Mason about signing
Crutchfield’s MCR, punching out, going to the levee, and see-
ing Gerdes.379 Martin testified that he received no discipline for
his having quit work early on May 13. Martin further testified
that, on May 13, he was wearing no prounion insignia, Crutch-
field having removed his “Union-Yes” sticker from his hardhat,
as discussed above. Martin testified that, from the time that he
came to Crutchfield’s crew, Mason always wore prounion
stickers on his hardhat, and that Mason often wore union T-
shirts.
Mason’s Warning Notice for Quitting Work Before
Lunchtime—Respondent’s Evidence
Gerdes testified that on May 19 he was riding his motorbike
on the levee walkway when, about 30 seconds before the noon
whistle blew, he saw Mason walking between the timeclock
and the base of the levee. Gerdes testified that he knew that
Mason was assigned to the ballast control room (deep within
the ship) that day, and he knew that Mason necessarily would
have left that area by 11:53 a.m. to get to where Gerdes first
saw Mason. Gerdes further testified that Mason was alone
when he saw Mason; he denied that Martin, or any other em-
ployee, was with Mason. When he got to his office, Gerdes had
someone check, and he found that Mason had punched out at
“11:99.” He ordered Mancuso to have the above-quoted warn-
ing notice issued. Mancuso relayed the order to Crutchfield
who, after some delay, issued the warning notice to Mason.

378 Neither Crutchfield’s removal of Martin’s “Union-Yes” sticker,
nor his statement to Martin, is separately alleged as a violation.
379 The alleged discrepancies cited by Respondent on brief are not
significant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1322
Gerdes freely admitted that, at the time of the incident, he
“strongly” suspected that Mason was prounion because of the
unfair labor practice charge that had been filed over Mason’s
December 9 warning notice.
Mason’s Warning Notice for Quitting Work Before
Lunchtime—Conclusions
Respondent does not deny that, by the time of the May 19
warning notice, Gerdes knew of Mason’s prounion sympathies.
In addition to the animus toward all employees, such as Mason,
who wore prounion insignia, animus toward those employees
subordinate to Gerdes, as late as spring of 1994, is established.
Martin testified, without contradiction, that during the spring of
1994 Crutchfield told him that he had taken Martin’s “Union-
Yes” sticker from his hardhat “because some superintendents
were asking who were wearing stickers and who weren’t.”
Crutchfield would not have told this to Martin had it not been
true. Crutchfield would not have removed Martin’s “Union-
Yes” sticker had he thought that the superintendents’ inquiries
were only academic. Crutchfield, obviously, removed the
sticker because he thought that one of the inquiring superinten-
dents would discharge, or otherwise discriminate against, Mar-
tin because he was wearing it. Terry, again, was Crutchfield’s
superintendent; Gerdes had once been classified as an assistant
superintendent, and, as has been noted, Gerdes was Terry’s de
facto assistant superintendent. A prima facie case of unlawful
discrimination has therefore been established by the General
Counsel, and the burden shifts to Respondent to demonstrate by
a preponderance of the evidence that it would have taken the
same actions against Mason even in the absence of his known
protected activities. Respondent’s defenses must therefore be
examined.
I believe, and credit, Gerdes’ testimony that Mason would
have been required to leave his work area about 7 minutes be-
fore noon to be at the point where Gerdes first saw him on, or
approaching, the levee. (Even Mason admits to leaving his
work area by 11:55 a.m., and possibly as early as 11:50 a.m.)
Mason acknowledged that, if he were going to lunch, rather
than leaving for the day, he should have stayed in his work area
until noon. I agree, however, that Martin’s and Mason’s situa-
tion was not the same as employees who were going to lunch.
Employees are not required to sign the MCRs to go to lunch.
When they leave work before the regular quitting time, how-
ever, employees are required to find their supervisors and sign
out on their supervisors’ MCRs.380 This is what Mason was
doing. There is no question that employees are permitted to
sign out for the day while they are still on working time. Sign-
ing out, after all, is work.
Nevertheless, Mason punched out before noon, and ap-
proached the levee while he was still on paid, working time, as
Gerdes saw. There is no evidence that employees are permitted
to punch out before 3:30 p.m. when they are working a full day,
and there is no evidence that employees are permitted to punch
out before noon when they are working only until noon. If this
is all there were to the case, Mason would have validly been
subject to discipline.
Mason and Martin, however, credibly testified that they were
walking side-by-side when Gerdes would have seen Mason
leaving the timeclock and walking toward the levee. Moreover,

380 Conversely, when employees work a full day, supervisors find
them to secure their signatures on the MCRs, as fully discussed in the
case of alleged discriminatee John Joseph, supra.
there is documentary evidence, the transaction register, that
shows that Mason and Martin punched out during the same
minute from the same timeclock. I do not believe that Martin
thereafter left the plant on any path other than the most direct
path toward the gate, just as Mason did. I discredit Gerdes’
testimony to the contrary.
Mason, who was wearing prounion insignia, and who was
“strongly” suspected of being prounion by Gerdes, was issued a
warning notice; Martin, who was not wearing prounion insig-
nia, was not disciplined. This is discrimination in its purest
form. I find and conclude that Respondent has not shown that
Mason would have been issued the warning notice of May 19,
1994, even in the absence of his wearing of prounion insignia.
Therefore, by issuance of that warning notice Respondent vio-
lated Section 8(a)(3) of the Act.
b. Discharges of D. Braud, M. Bourgeois, and G. Zeringue for
card playing
Dwayne Braud (vol. 10), Marty Bourgeois (vol. 27), and
Glynn Zeringue (vols. 6, 7), all of whom had been employed as
mechanics in the inside shop of the sheet metal department,
were discharged on August 19, 1993. The second complaint, at
paragraph 115, alleges that by discharging Braud, Bourgeois,
and Zeringue Respondent violated Section 8(a)(3). The General
Counsel contends that Respondent discharged Braud, Bour-
geois, and Zeringue because of their known union activities and
expressions of sympathy which included: (1) Bourgeois’ speak-
ing up for the Union at an employer campaign meeting; (2)
Braud’s responding affirmatively to two interrogations and
Braud’s maintenance of prounion insignia on his toolbox; and
(3) Zeringue’s wearing prounion insignia on his hardhat. The
complaint further alleges that, in violation of Section 8(a)(1), a
supervisor interrogated Braud and Zeringue about their union
activities and sympathies. Respondent denies that the interroga-
tions occurred. Respondent further answers that its supervisors
had no knowledge of any union activities or sympathies of
Braud, Bourgeois, or Zeringue at any relevant time. Respondent
further answers that “deliberate loafing” is an immediate dis-
charge offense under the Avondale Employees’ Guide and that
Braud, Bourgeois, and Zeringue were discharged for deliberate
loafing by playing cards during the cleanup period between
3:20 and 3:30 p.m. on August 18. Although admitting the card
playing, the General Counsel replies that the card playing de-
fense is a pretext because the same, or equivalent, conduct had
been engaged in by the same, and other, employees in the sheet
metal department, and elsewhere, but no other employees were
previously disciplined for such conduct. Alternatively, the Gen-
eral Counsel replies that, even if the card playing could be con-
sidered deliberate loafing, Braud, Bourgeois, and Zeringue
were treated disparately because other employees, at other
times, were no more than given warning notices for other types
of loafing that could be classified as “deliberate.” Ultimately, I
find and conclude that no prima facie case was presented for
Zeringue, and I further find and conclude that Respondent has
shown that it would have discharged Bourgeois and Braud (and
Zeringue) even absent their protected activities. I therefore
recommend dismissal of these 8(a)(3) allegations.
In the sheet metal Shop, Braud, Bourgeois, and Zeringue
worked under the supervision of Foreman Hector Navarro,
General Foreman Michael Torres, and Sheetmetal Department
Superintendent Allen Poleto. Other foremen (and stipulated
supervisors) in the sheet metal shop at the time of the dis-
AVONDALE INDUSTRIES

1323
charges were Willie Dufrene, Sal Gaspar, Clifford Autin, and
Eli Duhe.
Union Activity of Bourgeois, Braud, and Zeringue
Bourgeois, who had been employed by Respondent for 3
years at the time of his discharge, testified that during an April
employer campaign meeting that was conducted by Navarro:

Hector had a card that Avondale wanted us to bring to
the Union and get them to sign it guaranteeing we
wouldn’t go on strike to get a pay raise. . . .
Well, I was arguing with Hector. I told him I didn’t
think anybody would sign such a card guaranteeing that
they wouldn’t go on strike. . . .
[As the employees departed the meeting] Hector was
standing by the door of the engraving room handing out
the cards to the employees as they left. And [as] I ap-
proached him, he pulled back the card and said he wasn’t
even going to give me one.

Braud, who had been employed for 13 years at the time of
his discharge, testified that during the 2 or 3 weeks before the
June 25 election, through the date of his discharge, he main-
tained union stickers on his toolbox which was openly dis-
played at his workbench. Also, according to Braud, in early
June, when Navarro was in his work area:

Well, I had called him [Navarro] back by my bench to
ask about some blueprints on the job I was working on.
And then in the process, we were talking about that. After
that was over with, general conversation, then he men-
tioned, asked me how I felt about the Union, and I said,
“Right now if the vote was being taken today, I was lean-
ing toward the Union; I would have to vote yes.”
And then he said, “Well, why would you vote yes?”
I said, “Well, we haven’t had a raise in six years.”
And he said, “Well, if the management don’t have the
money to give you raises, they can’t give you raises,” and
[Navarro said] that what the Union can do is only go on
strike.
I said, “Well, if that is what it takes for us to get raises,
that is what it is going to have to take.” And then he just
turned around and walked off.

Braud further testified that later in the month of June, but ap-
parently before the June 25 Board election, he was in Navarro’s
office to use the telephone. According to Braud, Navarro
“asked if my views had changed on the Union.” Braud testified:
“And I told him no. I said, I would still vote for it.” Braud testi-
fied that Navarro did not reply.
Based on this testimony by Braud, and other testimony by
Zeringue as discussed below, paragraph 35(a) of the second
complaint alleges that Respondent, by Navarro, unlawfully
interrogated its employees.
Braud further testified that in “about early June, mid-June,”
when he and General Foreman Torres were alone in a working
area:

We were talking in general talk, and then we got on
the subject of the Union, and he [Torres] asked me how I
felt about the Union, what was my views on it.
And I told him, “Right now if the vote was being taken
I would vote for the Union.” And I said that this place
needed some change around here.
And he told me that, “Well, the Union is really not the
answer.”
I said, “Well, management don’t have any answers for
us, so why not let the Union give it a try, and work it out
that way.”

No allegation in the complaint was made on the basis of
Braud’s testimony about what Torres asked him; at trial the
General Counsel stated that the testimony was presented solely
for proving knowledge of Braud’s prounion sympathies.
Zeringue, who had been employed by Respondent for 28
years at the time of his discharge, was shown a “Union-Yes”
sticker by counsel for the General Counsel, and then he was
asked:

Q. [By Mr. Morgan]: Mr. Zeringue, I show you something
marked the General Counsel’s Exhibit 3 and ask you if you can
identify it.
A. It is a union sticker.
Q. Did you ever put it—place one of those stickers any-
where?
A. On my hardhat.
Q. Did you wear your hardhat at Avondale?
A. Right.

This is the entirety of the testimony about Zeringue’s alleged
union activities or expressions of prounion sympathies.
Zeringue further testified that 2 weeks before the June 25
Board election, when he and Navarro were in the work area:

He [Navarro] asked me how I felt about the Union, and
I told him I would rather not comment about it.
And he said, after that, that he wouldn’t vote for the
Union because if the Union got in and they couldn’t get
new contracts; if they couldn’t get new contracts, they
wouldn’t have money to give people raises.
And I didn’t have no comment to that, and he just
walked off.

In addition to the above-described alleged interrogations of
Braud by Navarro, the General Counsel contends that
Zeringue’s testimony is evidence of another violative interroga-
tion by Navarro as alleged in paragraph 35(a) of the second
complaint.
The Discharges of Bourgeois, Braud, and Zeringue—the Gen-
eral Counsel’s Evidence
As mentioned so often in this decision, each day at 3:20 p.m.
whistles blow at the plant signaling employees that it is time to
begin the process of cleaning their work areas. The factual
question presented in the case of Bourgeois, Braud, and
Zeringue is: When employees finish cleaning their work areas,
and they stay in those areas, what are they allowed to do?
Bourgeois testified that for about “three or four months” be-
fore August 18, he maintained a deck of playing cards at his
work station. Bourgeois testified that regularly, about 3:25
p.m., after all of the tools had been picked up and all necessary
cleaning of the work area had been done, four employees would
gather at his workbench and play hands of cards until the 3:30
p.m. whistle blew. The usual participants in the games were
Bourgeois, Joe Morehouse, Scott Nance, and Barry Cooper.
(None of these other three employees testified.) On August 18,
Nance and Cooper were absent from work, and Zeringue and
Braud took their places. According to Bourgeois, as he, Braud,
Zeringue, and Morehouse were playing cards:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1324
We played for a little bit, and then Mike Torres walked
down the center aisle and seen us playing cards, and he
started screaming at us. He screamed, “I can’t believe you
motherfuckers are playing cards. Put them up.” And he
started hollering for Hector [Navarro] then.

. . . .

I stood around by my toolbox waiting for the 3:30
whistle to blow.
As I was leaving to go to the timeclock, Hector Na-
varro stopped me and he said I had to go with him to his
office because he was going to write me up.
I told him I didn’t have time. I had to go catch my ride.
I would do it tomorrow.

Bourgeois was asked what the other shop employees were do-
ing when they were initially approached by Torres, and Bour-
geois testified: “Some of them were sitting around. Some of
them were standing around, and some of them were reading
newspapers or magazines, and nobody was working at that time
of the day.”
Braud testified about the events of August 18:

About 3:27, 3:28, right after we got about one or two
hands of cards, and Mike Torres walked up. And he
looked at us. I happened to look up and see him standing
there, and then he said, “I can’t believe you stupid ass
holes are actually doing this.” And then he started calling
for [Foremen] Willie Dufrene, Sal Gaspar, and Hector
Navarro. And then he turned around—excuse my lan-
guage. He said, “I can’t believe you stupid mother-fuckers
are actually doing this.”
And then when he said that, it stunned me. I just put
my cards down on the table and just stood there in dismay.
. . .
By that time, my cards were already down on the table,
and we done stopped playing cards. . . .

Braud was asked what the other shop employees were doing
when they were initially approached by Torres, and Braud testi-
fied: “They were watching us playing cards and some of
them—one of the guys was sitting in a chair, reading a maga-
zine, and a couple of the other guys that were off on the other
side of the alleyway was just standing around talking.”
Zeringue testified consistently with Bourgeois and Braud.
Although Zeringue’s testimony did not include any attempt to
repeat Torres’ curse words, Torres, himself, admits to using
some curse words, and “yelling,” as described below.
On August 19, at the start of the shift, the four cardplayers
were called to the office of Superintendent Poleto. As the three
alleged discriminatees and Torres agree, Torres told them that
they were discharged for “playing cards” the day before. The
complaint does not allege that the discharge of Morehouse vio-
lated Section 8(a)(3). There is no evidence or contention that
Morehouse held any prounion sympathies, and there is no evi-
dence that a charge was ever filed on his behalf.
Braud, Bourgeois, and Zeringue testified that the card games
that occurred between 3:20 and 3:30 p.m. were conducted
without any attempt to hide the activity and that Bourgeois’
workbench was within 25 unobstructed feet of Navarro’s of-
fice; they testified that Navarro would often stand in his door-
way while the card playing was going on before him. They also
testified that Bourgeois’ workbench was at the intersection of
major and minor aisle ways, and that Torres often walked
through the area, easily in position to see the card games.
No employee testified that Torres or Navarro did or said any-
thing to acknowledge that the card games were being con-
ducted. Braud, however, testified that Foremen Dufrene and
Gaspar had “three or four times” stood and watched the games.
Zeringue testified that, at some point, Dufrene, “watched the
game in the afternoon.” Bourgeois testified that once Dufrene
“walked up and seen us” playing cards; Bourgeois further testi-
fied that once,”probably about a month before” the discharges,
Gaspar walked within sight of the afternoon game.
Adeline Plaisance is a retiree who worked under the supervi-
sion of Navarro at the time of the events in question. (I have
previously credited her testimony (vol. 51) that in April or May
1994 she was threatened with unspecified reprisals for wearing
prounion insignia by Sheet Metal Shop Foreman Autin .) Plai-
sance testified that, before August 18, between 3:20 and 3:30
p.m. “Well, we were supposed to pick up our tools, and after
we got through with that, we could go to the bathroom or do
whatever we wanted to do, read the paper, sit down, stand up,
talk to the others.”
Plaisance denied that the employees did any work after they
finished cleaning their work areas. Plaisance further testified
that she witnessed Bourgeois’ end-of-shift card game being
regularly conducted for 2 months before the August 18 dis-
charges. Plaisance also testified that Foreman Dufrene would
stand by the cardplayers “[j]ust watching them.” Plaisance fur-
ther testified that, at the end of the workdays, Navarro regularly
stood by his office door in clear view of the card playing. Plai-
sance admitted that she could not tell what Navarro was look-
ing at, “but he looked and watched us all the time,” and she did
see Navarro looking in the direction of the cardplayers at times.
Plaisance testified that she was present on the day of the dis-
charges; she testified that, between 3:20 and 3:30 p.m. that day,
employees in the work areas adjacent to Bourgeois’ bench,
were “[j]ust standing around, waiting for the whistle to blow,
talking to each other. Some of them were reading newspapers
or whatever.”
Plaisance further testified that each day, as 3:30 p.m. ap-
proached, employees who worked in the back of the sheet metal
shop would come to her work area and wait for the final whistle
to blow; then they would rush to the timeclock which was in
the middle of the shop. Also according to Plaisance, each day
employees who worked in the front of the shop would gather
around the timeclock in order to be among the first to punch
out.
Steven Marque (vol. 47), who had been employed by Re-
spondent in the sheet metal department for 15 years at time of
trial, testified that he was present when Bourgeois, Braud, and
Zeringue were playing cards on August 18. At the time, accord-
ing to Marque, he was 6 to 8 feet away from the cardplayers
and: “I was sitting down in my home-made chair,” not working.
Marque testified that one or two employees “might have been
cleaning the area at the time.” Marque further testified that he
had seen the game being conducted daily between 3:20 and
3:30 p.m., at Bourgeois’ work station, “[f]or years.” (Of course,
Bourgeois, himself, testified that the game had been conducted
only for 3 or 4 months, and Plaisance testified that she had seen
it for only 2 months.) Also, Marque testified that he had seen
Dufrene “on several occasions” watch the games at Bourgeois’
workbench.
AVONDALE INDUSTRIES

1325
Michael James Boudreaux (vol. 46), a 9-year mechanic who
works in the sheet metal shop,381 testified that until Zeringue,
Bourgeois, Braud, and Morehouse were discharged on August
19, Sheet Metal Shop Foreman Gaspar kept a running card
game going in the back of the sheet metal shop; Gaspar’s game
was set up 5 minutes before the noon whistle, and it usually
concluded 5 minutes after the 12:30 p.m. whistle blew. Em-
ployees under Foremen Gaspar and Duhe participated in the
games. Boudreaux further testified that on the morning of Au-
gust 19, shortly after Bourgeois, Braud, and Zeringue were
discharged, Autin and other supervisors382 in the sheet metal
shop held meetings with employees and announced that the
employees were to stay busy until 3:30 p.m.. The employees
followed the instruction for about a week, but, as Boudreaux
further testified: “It lasted about a week and then everybody
went back to doing what they did before. . . . Everybody was
standing around doing nothing again, reading the paper, stand-
ing by the clock, timeclock, waiting for the 3:30 whistle to
blow.” Respondent did not call Autin to testify, and this testi-
mony is undenied.
Specifically in regard to practices in the sheet metal shop be-
tween 3:20 and 3:30 p.m. before August 18, Boudreaux further
testified that, before the discharges of Morehouse, Bourgeois,
Braud, and Zeringue, when the 3:20 p.m. whistle blew, em-
ployees would be “[g]oing to the restroom, cleaning up, sitting
down reading the papers, newspapers” and employees could go
to the restroom “[a]nytime they wanted.” Boudreaux testified
that two or three times a week, between 3:20 and 3:30 p.m.,
Autin and Sheet Metal Department Superintendent Poleto saw
him reading newspapers, but he received no discipline for the
practice.383 Poleto testified, but he did not deny this testimony
by Boudreaux; as Autin did not testify, Boudreaux’s testimony
is undenied.
Current employee Lenny Gueho (vol. 42) testified that the
inside sheet metal shop’s day-ending routine is: “Well, when
the horn blows at 3:20 you clean up your area if it needs to be
cleaned up or pick up your tools, turn in your tools to the tool
room, wash up, and stuff.” Gueho testified that this usually
takes about 5 minutes; after that the employees go to the rest-
room if they wish, or they stand around in the work area and do
nothing more than talk. Gueho testified that the inside sheet
metal shop employees are occasionally told to stay busy, and
they were told such on August 19; Gueho further testified,
however, that the order was essentially ignored thereafter by
the employees. Gueho was not asked if he had ever seen
Zeringue, Braud, and Boudreaux play cards before they were
discharged. On cross-examination, he acknowledged that he
had never played cards between 3:20 and 3:30 p.m.
The Discharges of Bourgeois, Braud, and Zeringue—
Respondent’s Evidence
Navarro (vol. 129) denied interrogating any employees, and
he denied that Braud told him that he was going to vote for the
Union in the June 25 Board election. Navarro further denied

381 In the disposition of the case of alleged discriminatee Leroy
Clark, supra, I disposed of Respondent’s motion to strike all of
Boudreaux’s testimony.
382 This would not include Navarro who began a vacation on August
19.
383 At one point, Boudreaux referred to his reading time as “Between
12:20 and 12:30”; however, Boudreaux corrected himself and, also
from the context, it was clear that he meant between 3:20 and 3:30 p.m.
seeing prounion insignia that may have been worn by Zeringue
or prounion insignia that may have been on Braud’s toolbox.
Navarro denied knowledge of any prounion sympathies by
Bourgeois, Braud, or Zeringue, and he denied discussing a
“union guarantee card” with Bourgeois.
Navarro testified that before August 18 he had seen employ-
ees play cards at their work stations, but only during lunch or
before or after work. Navarro testified that at regular safety
meetings he tells employees that they must be working between
3:20 and 3:30 p.m. Navarro testified that he did not witness any
employees playing cards on August 18; Torres came to his
office late in the day and told him of the event, as Torres de-
scribes below.
On cross-examination, Navarro was asked and he testified:

Q. And during that period between 3:20 and 3:30, after
they have cleaned their area and picked up their tools,
sometimes they sit and wait for the whistle. Correct?
A. Some do, some don’t.
Q. And sometimes during that period, 3:20 to 3:30,
employees go to the bathroom?
A. Right. To wash their hands and come back to . . .
their work area.

. . . .

Q. And sometimes between 3:20 and 3:30, employees
gather together and talk?
A. Some do, some don’t.

. . . .

Q. Between 3:20 and 3:30 p.m., sir, on every time that
you have been outside of your office during that period of
time that you have observed at least one or more employ-
ees not working during that period of time?
A. Yes. I have observed some.

Navarro started a vacation on August 19 and was not present
for the discharges. Navarro testified that, when he returned
from vacation, Torres told him that the four employees had
been discharged because “[t]hey caught them over there play-
ing cards.”
Torres (vol. 118) denied knowledge of any prounion sympa-
thies of Bourgeois, Braud, or Zeringue at the time of the dis-
charges. Torres specifically denied having any conversations
with Braud about the Union. Torres testified that on August 18,
just after the 3:20 p.m. whistle blew, as he was walking in a
main aisle of the sheet metal shop, he noticed “a large group”
gathered around a work bench. As he approached the bench,
according to Torres:

There were three guys on the outside standing up; I think a
few of them had tools in their hands. . . . As I continued walk-
ing on towards the crowd, I got closer and the three guys dis-
persed, leaving four people [Morehouse, Bourgeois, Braud,
and Zeringue] exposed sitting down playing cards.

Torres knew two of the three employees who had been watch-
ing the card game and who “dispersed”; these two were
Dominick Saladino and Rolondo Cabailero. Torres testified that
someone told him later that the third employee who had been
watching the card playing was Michael Cain, but Torres had
not recognized Cain at the time. (Torres further testified that an
eighth employee was in the immediate area of the bench, but he
was doing required cleaning.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1326
Torres acknowledged that when he approached the cardplay-
ers, he “blew up” and said, “I can’t believe you fucking ass-
holes. . . . You could lose your job on account of this, you know
that?” Torres testified that he was “mad.”384 He went to find
Gaspar and Navarro, and when he did so, according to Torres,
“I said, ‘Write up all these people for loafing.’” Navarro asked
if the warning notices could not wait until the following morn-
ing because “it is late; everybody is getting ready to leave.”
Torres agreed.
Torres testified that he had never before seen shop employ-
ees playing cards between 3:20 and 3:30 p.m. Torres further
testified that he had, himself, been manually working in the
shop (building a machine) during the preceding 2 weeks; regu-
larly during that period he had walked through the same aisle
between 3:20 and 3:30 p.m., and he specifically denied ever
having seen anyone playing cards in the area of the benches.
Torres testified that early on the morning of August 19, “I
was still burning up, I couldn’t believe these guys, first-class
mechanics doing what they was doing.” He decided to dis-
charge the four cardplayers, rather than issue them warning
notices. He prepared ASI-22 (discharge) forms for the employ-
ees; in the space for explanation for action, Torres wrote “Play-
ing Cards.” Torres then called the four employees into Poleto’s
office. According to Torres:

They all sat down. I said, “You all know what you are here
for.” And they all said yes. And I said, “You broke a company
policy, and I am terminating you for this.” And they all
looked at me, and then I said, “You have to sign this; as far as
you are concerned, at this time you are unemployed at Avon-
dale. It [each ASI-22 (discharge) form] is for loafing on the
job, and of course, you know what you were doing, you were
playing cards. And they all got up, and I am pretty sure all
four of them signed the sheets.

(This is the only case of record in which alleged discriminatees
were asked to sign their own ASI-22 forms.)
Further on direct examination Torres was asked and he testi-
fied:

Q. MR. TORRES, why did you decide or make the deci-
sion to terminate the four individuals? . . .
THE WITNESS: Usually when I am walking down the
aisle, if someone is not doing what they are supposed to
do, they scatter, you know, they have respect. When I
walked down the aisle that particular day, three people
took off, these four guys just challenged me, it looked like.
They just sat there like [they were saying] “So what?” I
couldn’t believe it, I just couldn’t believe it.
Q. BY MR. CUPP: What are employees supposed to be
doing between 3:20 and 3:30 in the Sheet Metal Shop?
A. Tidying up, cleaning up, returning tools, closing
their toolbox, they usually put their shoes on, take their
work clothes off, their work shirts, prepare to leave.

Torres testified that he ordered warning notices to be issued
to Saladino and Cabailaro. Listing 3:26 p.m. on August 18 as
the time of the offenses, general offense-4 is checked and
quoted: “Wasting time, loitering or leaving the working place
without permission.” Torres testified that he did not issue a
warning notice to Cain (the third onlooker) because: “It was

384 The Tr., vol. 118, p. 28,839, L. 9, is corrected to change “made”
to “mad.”
just a word of mouth I got from another employee that he was
the third person [who had been watching the card game].”
On cross-examination Torres identified some notes that he
had made shortly after the discharges. Torres was asked and he
testified:

Q. You say in your note in the last paragraph that you
were coming down the aisle and noticed seven men loaf-
ing on work time. Is that correct?
A. Yes, sir.
Q. Why didn’t you treat all seven of the men that were
loafing in the same fashion?
A. Because three of them just dispersed.
Q. Other than that, is there any other reason that you
didn’t treat them all in the same fashion?
A. No other reason.

Torres testified, however, that he would have discharged the
four cardplayers, even if they had begun to disperse when they
saw him, “because this was serious.” As noted, on direct ex-
amination Torres testified that, when he first found the card-
players, he went to Navarro and Gaspar and told them: “Write
up all these people for loafing.” Also, Navarro asked to wait
until the next day to issue the warning notices, and Torres
agreed. On cross-examination, however, Torres testified that he
never considered writing warning notices to the four cardplay-
ers because: “These guys just was trying to take advantage of
me, you know, no respect whatsoever.” As also noted, Torres
testified on direct examination that he decided to discharge the
four cardplayers because they did not “scatter” and show “re-
spect” when he approached. On cross-examination, however,
Torres acknowledged that the cardplayers did not see him until
he “yelled.” (Torres changed this testimony after a late objec-
tion from Respondent’s counsel, but I do not credit that
change.)
Torres acknowledged that when employees are through
cleaning their work areas between 3:20 and 3:30 p.m., they are
free to go and wash their hands, and some employees could
have been in the restroom when the card playing was going on.
Torres further acknowledged that Navarro or Gaspar could
have seen the card playing of August 18 if they had stepped out
of their offices. Torres admitted that he was “focused” on the
cardplayers and the employees standing around them; he did
not notice what other employees in the area were doing. That is,
Torres did not dispute the testimony of the General Counsel’s
witnesses that other employees were standing (or sitting)
around, doing nothing, when he approached the cardplayers.
Discharges of Bourgeois, Braud, and Zeringue—Conclusions
Navarro denied the testimony by Braud and Zeringue that
Navarro interrogated them; however, I found Braud and
Zeringue credible, and I do credit their testimony. I find and
conclude that Respondent, in violation of Section 8(a)(1), by
Navarro, in June 1993, interrogated its employees about their
union membership, activities, or desires.
I credit the testimony of Bourgeois that he spoke up in favor
of the Union in an employer campaign meeting that was con-
ducted by Navarro. What Bourgeois said to Navarro could not,
in the abstract, be considered a forceful prounion statement, but
it was enough for Navarro to recognize Bourgeois as being one
who did not want, or would not accept, Respondent’s campaign
material (the guarantee card). I have further credited the testi-
mony of Braud that he twice told Navarro, in response to
AVONDALE INDUSTRIES

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unlawful interrogations, that he intended to vote for the Union
at the Board election. I further credit Braud’s testimony that he
openly displayed a prounion sticker on his toolbox while he
was working, and I further credit his testimony that he told
Torres that he would vote for the Union because “this place
needed some change around here.” I therefore find that Re-
spondent’s supervisors had knowledge of the prounion sympa-
thies of both Braud and Bourgeois at the time of their dis-
charges. The element of animus, especially toward those em-
ployees who displayed prounion insignia, is established
throughout this decision. Therefore, the General Counsel has
presented prima facie cases that the discharges of Braud and
Bourgeois were unlawfully motivated, and the burden shifts to
Respondent to demonstrate by a preponderance of the evidence
that it would have taken the same actions against Braud and
Bourgeois even in the absence of their known protected activi-
ties. Respondent’s defenses must therefore be examined.
Zeringue, however, appears not to have been a prounion em-
ployee. The entirety of Zeringue’s testimony about wearing
prounion insignia was that he could identify the “Union-Yes”
sticker, that he (at some undisclosed time for an undisclosed
period) placed one on his hardhat, and that he wore his hardhat
at work (as all production employees are required to do). No-
where in this testimony is there evidence that Zeringue placed
the “Union-Yes” sticker on the hardhat before he was dis-
charged. Assuming that Zeringue put the sticker on his hardhat
before his discharge, there is no testimony about how long he
maintained it there; for all that the record shows, Zeringue
could have had a change of heart, and he could have taken the
sticker off his hardhat immediately after he had put it on. Other
alleged discriminatees who testified that they wore prounion
insignia on their hardhats further testified that they maintained
the stickers there until they were discharged, or at least for a
significant amount of time; this was simply not so with
Zeringue. Moreover, neither Braud nor Bourgeois testified that
they saw Zeringue wear prounion insignia in the shop (or any-
where else). Finally, sheet metal shop employees Gueho, Mar-
que, Boudreaux, and Plaisance testified (as described above),
but they were not asked if they ever saw Zeringue wearing
prounion insignia. In sum, there is no probative evidence that
Zeringue wore prounion insignia while he was employed by
Respondent, and if Zeringue’s testimony had been true, the
General Counsel could easily have presented corroborating
evidence. I draw an adverse inference against the General
Counsel for failing to present corroboration for Zeringue’s
(ambiguous) testimony about his display of prounion insig-
nia.385 I do not credit Zeringue’s testimony to the extent that it
was intended to convey the impression that he wore prounion
insignia while working.386 Zeringue responded evasively to

385 In other cases, the General Counsel had witnesses corroborate
testimony by the alleged discriminatees about their expressions of
prounion sympathies. For example, former employee Donald McGee
(vol. 58) did not know the name of alleged discriminatee Octave
Rouege, but the General Counsel took the effort to have McGee de-
scribe Rouege and testify to Rouege’s wearing of prounion insignia.
When I asked the General Counsel to explain the relevance of his ques-
tions to McGee, he replied, “I guess also—so there is no adverse infer-
ence.” (Unlike Zeringue, Rouege had given unambiguous testimony
about his wearing prounion insignia.)
386 For possible purposes of review, I here state that I credit the tes-
timony of Torres and Navarro that they did not see prounion insignia
that Zeringue may have worn.
Navarro’s interrogation; therefore, if Zeringue ever held any
prounion sympathies, there is no evidence that any of Respon-
dent’s supervisors knew of it. Therefore, the General Counsel
has not presented a prima facie case that Zeringue was dis-
charged because of his prounion sympathies, and I would rec-
ommend dismissal of the allegations relating to Zeringue’s
discharge on that basis, alone. (As discussed below, the General
Counsel does not contend that nonunion employee Zeringue
was discharged as part of a plan of Respondent’s supervisors to
discharge prounion employees Braud and Bourgeois.)
There is much evidence that Braud, Bourgeois, Zeringue,
and Morehouse were treated disparately. Boudreaux testified
that, before the discharges, Foreman Gaspar kept a running card
game going in the back of the shop, and Gaspar conducted the
game a few minutes before and after the lunchbreaks; i.e., on
working time. Employees of both Gaspar and Duhe participated
in the games, according to Boudreaux. Neither Gaspar nor
Duhe was called by Respondent to deny this testimony which I
found credible. There is no meaningful distinction between this
conduct and the conduct for which Bourgeois and Braud were
discharged. There is even undenied, credible, testimony by
Plaisance and Marque that Supervisor Dufrene sometimes
watched the running card game that Bourgeois conducted. The
only possible reason that Gaspar, Duhe, and Dufrene were not
called to testify by Respondent is that the testimonies of
Boudreaux, Marque, and Plaisance were true, as I so find. Em-
ployees in addition to the alleged discriminatees credibly testi-
fied that the employees do nothing after they have cleaned up
for the day. Plaisance credibly testified that the practice was:
“[W]e could go to the bathroom or do whatever we wanted to
do, read the paper, sit down, stand up, talk to the others.” Over
Torres, I further credit Plaisance’s testimony that employees in
the back of the shop would leave their areas in order to get into
positions to more quickly punch out when the 3:30 p.m. whistle
blew. Boudreaux testified that, before the discharges, he would
regularly stand around doing nothing except read a newspaper,
between 3:20 and 3:30 p.m.; Boudreaux further testified that he
was regularly seen doing this by Autin (whom Respondent did
not call to testify) and Poleto (who testified, but he did not deny
this). I credit this undenied testimony. Boudreaux further was
credible in his testimony that, after Autin told the employees to
work until 3:30 p.m., the employees did so for a while, then
things went back to: “Everybody was standing around doing
nothing again, reading the paper, standing by the clock, time-
clock, waiting for the 3:30 whistle to blow.” Further, Gueho
was credible in his testimony that employees sat around doing
nothing between 3:20 and 3:30 p.m., before and after the dis-
charges. Finally, Marque credibly testified that when Torres
approached the cardplayers, he was sitting in his homemade
chair only 6 to 8 feet away, doing nothing, and he was not dis-
ciplined. Although Navarro first said that it was “very seldom”
that he sees employees not working between 3:20 and 3:30
p.m., he admitted that some employees “sit and wait for the
whistle,” and some “gather together and talk.” Navarro finally
admitted that every time that he comes out of his office be-
tween 3:20 and 3:30 p.m., he sees some employees not work-
ing. In summary, the preponderance of the evidence is that the
sheet metal shop employees were permitted to do whatever they
wanted to do between 3:20 and 3:30 p.m., including reading
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1328
newspapers387 or simply doing nothing, as long as their work
areas had been cleaned. Respondent makes no contention that
the cardplayers had failed to clean their work areas on August
18.
There is even specific credible evidence that before Torres
saw Braud, Bourgeois, Zeringue, and Morehouse employees
were allowed to play cards during working time, at least at
certain periods of the day. I credit the testimonies of Marque,
Plaisance, Bourgeois, Braud, and Zeringue that Bourgeois’
running card game had been conducted at least for months (al-
though Marque made a flippant exaggeration that it had been
conducted “for years”). No witness of the General Counsel
testified that either Torres or Navarro did anything to indicate
that they had seen the card game, and there is no probative
evidence that Torres had ever seen a card game before August
18. There is, however, abundant evidence that Navarro often
stood before his office at the end of the day, and Torres admit-
ted that had Navarro been standing before his office on August
18, he would have seen the card game. I find that Navarro knew
of the running card game that had been conducted for at least 2
months before the discharges. Obviously, Navarro did nothing
about it. The four cardplayers, therefore, were not engaging in
conduct that had theretofore been prohibited; in fact, it had
been tacitly permitted by their supervisor, Navarro.
Further on the issue of disparate treatment: Respondent con-
tends that Bourgeois, Braud, and Zeringue were discharged for
deliberately loafing. Of course, the conduct of the three onlook-
ers was equally deliberate, but two of them (Saladino and Ca-
bailaro) were excused with no more than a warning for “wast-
ing time,” a general offense under the Avondale Employees’
Guide, and one of them (Cain) was not punished at all. (That
Cain was not recognized immediately by Torres is no distinc-
tion; Torres had ways of finding out his employees’ names,
and, in Cain’s case, he did.) The only putative distinction that
Torres could advance between the cardplayers and the onlook-
ers was that the latter “dispersed” when he approached. To
explain why that made a difference, Torres claimed that the
cardplayers were paying him “no respect.” Of course, because
the employees had previously been permitted to play in that
card game between 3:20 and 3:30 p.m., and other employees
were permitted to play in Gaspar’s card game, during working
time, the alleged discriminatees had no reason to believe that
they needed to rise and show such “respect” to Torres. Even if
the employees had known that they needed to show such re-
spect to Torres by rising when they saw him approach, Torres
admitted that they had not seen him before he began “yelling.”
Finally on the issue of disparate treatment: the General
Counsel further adduced evidence that similar time-wasting
activities were punished with no more than general offense
warning notices. For example, a significant number of employ-
ees who disappeared from their jobs, or simply did not do
cleaning work between 3:20 and 3:30 p.m., were given general
offense warning notices, and sometimes “final” warning no-
tices, but they were not discharged.388

387 Note that alleged discriminatee Leroy Clark was discharged in the
electrical department for the stated reason that he had been reading a
newspaper on a break.
388 One such example is found in the immediately preceding case of
alleged discriminatee Donald Mason who was issued a general offense-
4 warning notice for sitting on a bucket, rather than cleaning, between
3:20 and 3:30 p.m.
In summary, it is clear that Braud, Bourgeois, Zeringue, and
Morehouse were treated disparately. Nevertheless, they were all
treated alike, and the General Counsel does not contend that the
nonunion employees, Morehouse and Zeringue, were dis-
charged as part of some plan of Respondent to rid itself of
prounion employees Braud and Bourgeois. Indeed, the General
Counsel essentially ignores the discharge of Morehouse, except
to note, as have I, that no charge was filed on his behalf. More-
house could have been an alleged discriminatee, even though
no charge was filed on Morehouse’s behalf.389 I find that the
General Counsel’s failure to allege, or prove, that nonunion
employees Morehouse and Zeringue were discharged in order
to rid Respondent of prounion employees Braud and Bourgeois
is fatal to the contention that Braud and Bourgeois were dis-
charged unlawfully. Certainly, the General Counsel concedes
that the discharge of Morehouse was lawful by not alleging that
Morehouse was unlawfully discharged when the General Coun-
sel could have made that contention, even in the absence of a
charge being filed on Morehouse’s behalf. Moreover, even if
there were some theory under which the General Counsel’s
allegations for Braud and Bourgeois remained viable after the
General Counsel declined to issue a complaint on behalf of
Morehouse, the facts are against the General Counsel.
Although there is much evidence of disparate treatment in
the discharges of Braud and Bourgeois, evidence of disparate
treatment does not create a conclusive inference of unlawful
motivation. In this decision I have, several times, found such
inference to be appropriately drawn when there is a prima facie
case and no credible evidence of countervailing considerations
has been presented by Respondent. In this case, however, there
is the significant, even determining, countervailing considera-
tion that two nonunion employees were treated at the same time
with the same treatment for the same conduct as were the two
prounion employees. This immediate, even-handed treatment of
prounion and nonunion employees defeats the General Coun-
sel’s propounded inference that the prounion employees were
punished unlawfully. That is, even given the evidence of dispa-
rate treatment that exists in this case, Respondent has shown
that it would have discharged Braud and Bourgeois even absent
their protected activities, just as it discharged nonunion em-
ployees Zeringue and Morehouse.
Therefore, as well as recommending the dismissal of the al-
legation that Zeringue was discharged unlawfully, I shall rec-
ommend dismissal of the allegations that Braud and Bourgeois
were discharged in violation of Section 8(a)(3).
7. Employees terminated as assumed to have quit
a. Charles Giles
Charles Giles (vols. 3, 158) was a preventive maintenance
coordinator in the ships’ tests and trials department until he was
discharged on August 3, 1993. Before he was discharged, Giles
was transferred from an office that was in a building to a room
that was on a ship. The first complaint, at paragraphs 26 and 27
respectively, alleges that by transferring and discharging Giles
Respondent violated Section 8(a)(3). The complaint alleges that
Giles’ transfer was to a more onerous position, and the General
Counsel contends that Respondent transferred and discharged
Giles because of his known union activities and expressions of
sympathy which included his taking a leading role in the con-
duct of a June 19 union meeting and his serving as an observer

389 See, for example, Control Services, 315 NLRB 431 (1994).
AVONDALE INDUSTRIES

1329
at the June 25 Board election. The complaint further alleges
that, in violation of Section 8(a)(1), Giles was interrogated, his
grievances were solicited, and he was given the impression that
his union activities had been under surveillance. Respondent
denies that the alleged interrogation, impression of surveillance,
or solicitation of grievances occurred. Respondent further an-
swers that Giles’ work station was changed because (1) all
preventive maintenance coordinators were moved to ships, (2) a
superintendent of another department had indicated that he
wanted to use Giles’ office space, and (3) Giles was moved on
June 21 because he was found on that date engaging in talking
about the Bible, and not working, during working time. Re-
spondent further answers that Giles was terminated solely be-
cause he had not appeared for work, and he had failed to con-
tact Respondent, over an extended period of time. The General
Counsel replies that all of Respondent’s defenses are pretexts.
Ultimately, I find and conclude that Giles was unlawfully as-
signed a more onerous job position (transferred), but that he
was not unlawfully discharged.
The employees in Respondent’s ships’ tests and trials de-
partment are generally classified as operators, and the depart-
ment was usually referred to by the witnesses as the “operators
department.” The operators department coordinates various
functions that involve different departments. Giles was hired by
Respondent in January 1987. Giles had had congenital polio,
and he always walked with something of a limp, but he was
hired without limitations. During his entire tenure of employ-
ment, Giles reported directly to Operators Department Superin-
tendent Jeffrey Boudreaux; Boudreaux reported to Vice Presi-
dent Ken Genter. For the first 2 years of his employment, Giles
was a test coordinator. A test coordinator maintains documents
relating to tests of equipment that had been placed on a ship.
During his last 3 years of employment Giles was a preventive
maintenance coordinator. Boudreaux described the job of a
preventive maintenance coordinator as:

Preventative maintenance is maintenance performed
on equipment before it is running to prevent it from tear-
ing up or being destroyed. The Navy requires us to have
machinery history documenting that we did observe and
do maintenance on the equipment while it was down or
while it was running. It comes at different time cycles; dif-
ferent equipment had different things.
Giles’ job was to take this schedule, go aboard the
ship, give it to those people who were supposed to do the
maintenance, make sure all of the equipment was done at
that time, take the paperwork after they sign it and initial it
and stamped and said they did it—and you assume that
they did or saw that they did—take the paperwork back to
Preventative Maintenance [Department] supervisor, Mr.
[Michael] Bobbitt.390 And it was entered into a history.
And upon completion of a ship all of these records were
then given to the Navy to be entered into their machinery
history for the ship.

Giles worked in Boudreaux’s outer office in a building at wet
dock-3 until June 1992 when he was assigned an office in a
building at wet dock-1. wet dock-1 was about a mile from wet
dock-3. As a tester, then as a preventive maintenance coordina-

390 There is an entire preventive maintenance department; Giles
worked in coordination with that department, but he was not an em-
ployee of it.
tor, Giles regularly went from his office to, and through, the
ships. For longer excursions, he rode a bicycle about the plant
areas.
Alleged Interrogation of Giles by Carr—the
General Counsel’s Case
Al Carr was a general foreman over instrumentation during
the preelection period. Giles testified that on March 15, Carr
conducted an employer campaign meeting in Carr’s office.
Giles flatly denied that he could remember anything that had
been said in Carr’s meeting.391 Giles testified that after the
meeting he returned to his office where he received a telephone
call from Carr. According to Giles:

Well, Mr. Al Carr simply requested me to write a
statement about my position as far as the Union was con-
cerned. And I questioned him. But he said, “No, all I
wanted was a statement.”

. . . .

I said, “You want a written statement to that effect?”
He said, Yes. . . . And I said, “Fine.”

Based on this testimony by Giles, paragraph 8(a) of the first
complaint alleges that Respondent, by Carr, interrogated its
employees.
Giles testified that after Carr’s call, he called Boudreaux’s
clerk, Beverly Chaisson. According to Giles:

I . . . asked of her did she know anything about writing
a letter—a statement to the effect of my position and our
position with the Union. And she in turn said, “Well, they
want is just a—you know, just how-you-feel-about-the-
Union statement.”

Giles identified a letter that he then composed and dated March
16, to wit:

To whom it may concern:
From Charles Giles, Jr., Operators Dept.
Re: Per your request concerning meeting about union.

I really appreciate the information received from our
supervisors on 3/15/93. The information was clear and
concise. I personally will not be voting for a union.

Giles triple-underlined “will not” and signed the letter. He then
sent the letter to Carr.
Alleged Interrogation of Giles by Carr—Respondent’s
Evidence
As noted above, Giles flatly denied that he could remember
what Carr had talked about during the employer campaign
meeting of March 15. In his direct examination, however,
Boudreaux (vol. 108) testified that Carr had told him that he
had talked to the employees and: “asked if they had any prob-
lems or any questions they would like answered, please write it
on a piece of paper and give it up to him.” Based on
Boudreaux’s testimony of what Carr had told him, the General
Counsel moved to amend the first complaint to include, as
paragraph 8(b), an allegation that Carr had solicited employees’
grievances in violation of Section 8(a)(1).

391 Respondent presented testimony about what Carr said during the
meeting, and, on the basis of that testimony, the General Counsel
moved to amend the complaint to allege a solicitation of grievances, as
discussed below.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1330
Carr (vol. 143) testified that the March 15 employer cam-
paign meeting was attended by about eight employees. In that
meeting, Carr testified, he told the employees that he had no
use for any union. Further according to Carr:

This was only a two or three, maybe five, minute
meeting at the most. I then asked them as an after-
thought—that was basically the [end of the] meeting, but
as an afterthought—because the whole crowd was kind of
down, [I] couldn’t get any feedback; they didn’t want to
talk—as an afterthought I says, “Listen, if there is any-
thing that you all can submit that would help to improve
morale in here, if you will submit it, I will submit it.” I
said, “Now, I don’t want to hear anything about pay raises;
I don’t want to hear anything about money; and I won’t
make any promises.” I said, “I will submit it.” That was
basically the end of the meeting.

When asked on cross-examination if he told the employees
what he meant by “morale,” Carr responded: “I did not say
what I meant about morale. They knew it.” Carr was further
asked and he testified:

Q. I am talking about in 1993, March of 1993, you said
that the employees understood what you meant by the term
“morale issues.” What is it that was meant by that term?
A. Things that we were doing at that time within our
department. We have crawfish boils once a year. . . . We
have fishing tournaments. We have golf tournaments.
Company morale things; get the people together.
Q. Those things were already going on in the yard?
A. Yes. I was looking [for?] anything else that we
could do in that area.

After Carr gave this testimony the General Counsel offered a
letter dated February 28, 1994, to the Region from Respon-
dent’s counsel. In that letter, in which counsel responded to the
charges that had been filed on behalf of Giles, counsel states:

At a meeting with employees which was held some-
time in March, Mr. Carr asked the employees to write
down any questions that they had that they would like up-
per management to address. Specifically, Mr. Carr asked if
they had any problems they were unhappy about or any
company policies they were dissatisfied with, such as em-
ployee benefits, health insurance, and the like, that they
would like the Company to respond to. This was not an in-
terrogation of employees concerning their union sympa-
thies; it was simply an effort by the Company to determine
the employment-related concerns of the workforce.392

As discussed below, the General Counsel contends that this
letter is an admission by Respondent that Carr did, in fact, so-
licit grievances.
Carr further testified that, after the March 15 employer cam-
paign meeting, Giles approached him and told Carr that he
would have something for Carr. Also at this time, further ac-
cording to Carr, Giles showed him some kind of AFL–CIO card
and Giles told Carr that, “he understood where I was coming
from because he had been a member of a union before, and he
had no use for them either.”

392 This exhibit was properly marked as G.C. Exh. 630, although the
marking was incorrectly stated to be “634” at the time that the exhibit
was offered.
Carr further testified that, later in the afternoon, when he had
received nothing from Giles, as Giles had promised, he called
Giles and: “I said, Mr. Giles, you said you had something that
you wanted to give to me.” Carr testified that Giles replied,
“Yes, I will get it for you.” Carr testified that the next day, he
received in the interoffice mail Giles’ letter of March 16, as
quoted above. When he received the letter, he called Giles and
told Giles that this was not what he had asked for. Giles replied
that it was something that he wanted to “share” with Carr. Carr
flatly denied that he ever asked Giles for a written statement
about how he felt about the Union.
Chaisson (vol. 120) testified that Giles did call her and say
that the operators had had a meeting about the Union. Further
according to Chaisson, Giles told her that “Al Carr wanted a
statement from him, and he asked me what I thought he should
do. And I told him to do what he wanted . . . just make it short
and sweet, you know. Just go to the point. Whatever he wanted
to do, you know.” Chaisson was further asked on direct exami-
nation and she testified:

Q. [By Mr. Hymowitz]: Do you recall anything else
from that conversation that you said?
A. No. I don’t.
Q. Did you ever tell Mr. Giles during that conversation
that what they want is just a statement about how you feel
about the Union? . . . Did you ever tell him anything like
that?
A. No. No. I don’t remember.
Alleged Interrogation of Giles by Carr—Conclusions
If Giles was singled out for a written declaration of how he
felt about the Union, he was the only employee in this exten-
sive case who was. I did not believe Giles’ testimony as he
gave it, and I do not believe it now. I certainly do not believe
Giles’ testimony that he could remember nothing about what
Carr had said during the March 15 employer campaign meet-
ing. Giles gave that false testimony, I believe, to disguise the
fact that he had gotten the original idea for a letter to Carr dur-
ing the March 15 meeting, not afterwards. I credit Carr. I be-
lieve, and find, that Carr did ask for submissions of suggestions
of what might improve morale (and the legal ramifications of
that request will be discussed below). After the meeting Giles
told Carr that he, as well as Carr, had no use for unions; Giles
also told Carr that he would, indeed, have a submission pursu-
ant to Carr’s request. Giles then called Chaisson, Boudreaux’s
clerk. Giles testified that he called Chaisson to find out what
Carr wanted; Giles had testified, however, that Carr had “sim-
ply requested me to write a statement about my position as far
as the Union was concerned.” If Carr had made a simple re-
quest for a statement of how Giles felt about the Union, there
was nothing left for Chaisson to explain to Giles. I believe that,
when he got back to his office, Giles, on his own, decided to
ingratiate himself by telling Carr what he wanted to hear most.
Giles could not think of the best way to express it, so he called
Chaisson and asked her for ideas. Notwithstanding her denial
(followed by her disclaimer of memory), Chaisson agreed with
Giles that an antiunion statement would be a good thing to
submit, and told Giles to just keep it brief. The content of
Giles’ letter (with its palpable sycophancy) was not requested
by Carr. That is, Carr did not interrogate Giles. I shall therefore
recommend that this allegation of the complaint be dismissed.
Because Giles (falsely) disclaimed memory of what Carr
said in the March 15 employer campaign meeting, the only
AVONDALE INDUSTRIES

1331
testimony on the point is Carr’s. Carr told the employees that, if
any employee submitted to him a suggestion to improve mo-
rale, “I will submit it.” As counsel’s letter admitted, Carr was
telling the employees that he would submit their suggestions to
Respondent’s “upper management.” The issue before the
Board, therefore, is whether Carr’s March 15 statement to the
operators was a solicitation of grievances that, expressly or
implicitly, contained a promise of remedy.
Carr testified that he did not tell the employees what he
meant by “morale,” but he admitted that he meant such obvious
economic benefits as annual crawfish boils, fishing, and golf
tournaments. Carr further admitted that the employees knew
that he meant such things. Carr did not testify how he knew that
the employees knew what he meant; perhaps it was because of
other things that he had said at other times. At any rate, Carr
would not have admitted that the employees knew that he was
referring to such economic benefits as the annual crawfish
boils, fishing, and golf tournaments if it was not true. Carr fur-
ther admitted that he asked the employees what improvements
they wanted only after they failed to react to his presentation
against the organizational attempt that had begun just 2 weeks
before. That is, Carr admitted that, when the employees made
clear that they were not interested in whatever arguments he
was making, he asked them to tell him what he could do or say
that would impress them. Or, as Respondent stated in its Coun-
sel’s letter of February 28, 1994, “it was simply an effort by the
Company to determine the employment-related concerns of the
workforce.” This was a solicitation of grievances, and nothing
less.
Carr also told the employees that he would seek remedy for
their complaints of insufficient economic benefits, or griev-
ances. Carr did not make an express promise that requested
benefits would be granted, but he told the employees that he
would submit their requests to higher management. Carr’s hold-
ing out of the prospect of remedy was an implicit promise of
remedy.393 The coercive impact, moreover, was made clear by
the sequence that Carr described. Again, Carr testified that he
asked what would satisfy the employees, and promised to pass
their requests on to higher management, only after they failed
to respond to his presentation that the employees should not
accept the Union as their collective-bargaining representative.
The coercive impact could not have been missed by any rea-
sonable employee. I so find.
I therefore conclude that, in violation of Section 8(a)(1), Re-
spondent, by Carr, on March 15, 1993, solicited the grievances
of its employees and promised to remedy those grievances.
(1) Giles’ assignment of more onerous working conditions
Background
As noted above in the introductory section of this decision,
the Avondale Employees’ Guide states:

It is the employee’s responsibility to notify his super-
visor or department head’s office of the reason for his ab-
sence or tardiness on a daily basis. Failure to do so will re-
sult in either a written warning or discharge.

393 Gull, Inc., 279 NLRB 931 (1986). Carr’s fleeting reference to his
not making promises is to be distinguished from the facts of Uarco,
Inc., 216 NLRB 1 (1974), where the employer defeated the inference of
an implicit promise to remedy solicited grievances by repeatedly em-
phasizing no promises were being made.
The assigned reason for Giles’ discharge is that Giles was ab-
sent from June 29—28, and he failed to call in to his superin-
tendent’s office as required by the Avondale Employees’
Guide. Giles was transferred before he was discharged, and
Giles claims that he suffered an accident in Respondent’s park-
ing lot at some point before he was transferred. The General
Counsel contends that factors involved in the accident affect the
determinations about both his allegedly more onerous work
assignment and his discharge.
Respondent’s medical department (which is also sometimes
called the first aid department) utilizes a form entitled “Pro-
gress Report.” The progress report form consists of two col-
umns; one column is for dates, and the other is for running
medicalhistories of employees. According to a progress report
that Respondent introduced in evidence,394 on March 30, at
7:45 p.m., Giles called Respondent’s medical department and
reported that he had, on that date, fallen in Respondent’s park-
ing lot after work and hurt his right knee. Giles was advised to
come to the medical department on the next morning. (Giles,
and the other witnesses, disclaimed memory of the date of this
alleged accident. As well as Respondent’s progress report, a
memorandum from Giles’ personal physician, as discussed
below, recites that March 30 was the date of Giles’ parking lot
accident.)
On April 1, Giles did go to Respondent’s medical depart-
ment, as further shown by the progress report. Giles was given
a nonnarcotic pain killer and an antiinflammatory drug; the
medical department also issued to Giles a gate pass so that he
could leave the premises. While Giles was in the medical de-
partment on April 1, he signed and dated a space on the pro-
gress report that states:

I have been advised that I must call my superinten-
dent’s office each day that I do not report to work.

Giles testified that, further on April 1, he called Boudreaux and
reported the March 30 accident. According to Giles, Boudreaux
responded: “I have already heard about it; don’t worry about it;
take as much time as you need.” Giles testified that he missed
“three or four” days of work because of the March 30 accident,
but he called in to Boudreaux’s office only on April 1. Giles
further testified that no supervisor admonished him in any way
for not calling in during those days of absence.
Giles’ testimony that, after the parking lot accident, he went
“three or four” days without calling in was false. Giles could
have missed only one workday without calling in; that day was
Friday, April 2. The progress report recites that Giles was seen
in the medical department again on Monday, April 5, and he
was “[r]eturn[ed] to work with no limits.” Also on April 5, the
medical department issued to Giles a release that Giles was to
give to his superintendent. The release states that Giles was
then able to return to “regular duties” (as opposed to “limited
duties,” another alternative that could have been checked on the
form). And, ultimately, Giles also admitted that he actually
returned to work on April 5. Therefore, Giles missed only 2
days of work because of the March 30 accident, April 1 and 2,
and he acknowledged having called in on April 1. (Moreover,
as I find below, Boudreaux credibly testified that Giles did call
in on April 2 as well as April 1.)

394 See R. Exh. 705 which is a complete copy of the G.C. Exh. 15
(which has the entry for March 30 redacted).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1332
Assignment of More Onerous Work to Giles—the
General Counsel’s Evidence
Giles testified that from the parking lot accident of March 30
until about June 7, he came to work on crutches. Boudreaux
acknowledged that when Giles returned to work on April 5, he
made arrangements so that documents that Giles needed in his
work would be brought to him at his office at wet dock-1, and,
until June 21, Giles was not required to go on to ships to get the
papers.
Giles is an ordained minister. Giles testified that on Satur-
day, June 19, he gave the invocation and a 15-minute speech at
a union meeting that was attended by 400 employees. In the
speech, Giles urged the employees to select the Union as their
collective-bargaining representative.
Giles testified that, when he went to work on Monday, June
21, he was still walking with a “severe limp” as a result of the
parking lot accident of March 30.395 Giles testified that at 10
a.m. on June 21, he, Preventive Maintenance Department
Foreman Michael Bobbitt,396 and a safety department employee
(whose name Giles did not know) were sitting in Giles’ office
at wet dock-1 when Boudreaux walked in. According to Giles,
Boudreaux stated to him, in front of Bobbitt and the safety
department employee: “Henceforth, you will be working on a
ship; I want you out of this office today.” Giles testified that
Boudreaux indicated the room on the ship to which he was then
to go, “exactly . . . by number.” Giles testified that Boudreaux
then turned and left his office; after that, Bobbitt and the safety
department employee left his office. Giles testified that later he
called Boudreaux and asked for a meeting. Boudreaux came to
Giles’ office again, and, according to Giles:

When he walked in the office, this is what he said to
me: “Giles, I thought you said that you were not for the
Union; I understand you spoke at the meeting Saturday.”
I said, “I did the opening prayer at the meeting.” . . .
He said, “I understand you did more than that; I under-
stand you made statements against the Company.”

Based on this testimony by Giles, paragraphs 22(a) and (b) of
the first complaint allege that Respondent, by Boudreaux, inter-
rogated employees and created the impression of surveillance
of their union activities. Giles testified that, in addition to his
March 16 letter to Carr, he had previously told his supervisors
(orally) that he did not favor the Union’s organizational at-
tempt.
Giles testified that, after Boudreaux left his office (for the
second time) on June 21, he went to the room on the ship at wet
dock-3 that Boudreaux had designated. To get to the room,
Giles had to climb many stairs to get to the main deck of the
ship; then he had to descend many other stairs to get to the
specified room on a lower deck of the ship. Giles testified that:
“I was somewhat restricted in being able to go up and down
stairs at that particular time” because of the injury to his right
knee that he had received in the parking lot on March 30 and
because of a leg brace that he wore that day. (Giles did not
testify that climbing the stairs caused him any pain. Also, be-
cause Giles was seated when Boudreaux entered Giles’ office

395 As previously noted, Giles already had something of a limp from
congenital polio.
396 As Boudreaux testified in Respondent’s case, Michael Bobbitt is
a foreman and supervisor in the preventive maintenance department.
on June 21, there is no apparent way that Boudreaux would
have known that Giles was wearing a brace that day.)
Giles testified that the ship’s room to which he reported on
June 21 was empty; there was no desk, chair or telephone; there
was no air-conditioning and no other source of ventilation.
(Giles testified that his office on wet dock-1 had been air-
conditioned.) There were no file cabinets or files upon which he
could work, and he did no work on June 21. Giles testified that
General Foreman Robert Olmstead once came by the ship’s
office and looked in on him. On June 22, the second day of his
assignment to the ship at wet dock-3, Giles experienced the
same working conditions. Again, his files had not been trans-
ported to the ship, and he had no work to do.
On cross-examination Giles acknowledged that as a test co-
ordinator, the job he held for the first 2 years of his employ-
ment, he was required to go on ships about once or twice per
week, and he acknowledged that he was required to climb stairs
when he did so. Giles at first testified that, as a preventive
maintenance coordinator, he went about the yard visiting vari-
ous offices, but he denied ever having to climb to a second
floor of a building. When reminded of his oath, however, Giles
acknowledged that he did go to offices on the second floors of
buildings.
As discussed below, Giles did not report to work after June
22; there is, however, no allegation that the transfer to the ship
at wet dock-3 constituted a constructive discharge, as well as an
assignment of more onerous duties.
Giles’ Assignment of More Onerous Work to Giles—
Respondent’s Evidence
Boudreaux testified that, when Giles was classified as a test
coordinator, and he was stationed in Boudreaux’s outer office
at wet dock-3, Giles would go on ships as many as two or three
times a day. Boudreaux testified that a problem that he had with
Giles while Giles was working as a test coordinator was that:
“on occasions he would do what we call Christian counseling
during working times.” Boudreaux testified that he defined
Christian counseling as “talking religion and Bible to the peo-
ple.” When Giles was doing Christian counseling, according to
Boudreaux, neither Giles nor the person to whom Giles was
talking was working. Boudreaux testified that each time that he
found Giles doing Christian counseling he gave Giles a “verbal
warning,” and Giles would refrain for a while, but then Giles
would do it again. Boudreaux would then give Giles another
“verbal warning,” and the process would repeat itself. When
asked why he never issued a warning notice to Giles because of
this conduct, Boudreaux replied: “Verbal [oral] warning
seemed to be working for a period of time to keep him on track,
and it was—I don’t think talking about God or religion was
something to give a citation for as long as he continued to do
his job after I warned him.”
Further according to Boudreaux, when Giles became a pre-
ventive maintenance coordinator (and continuing until the park-
ing lot accident of March 30) he was required to go on ships
“almost every day.” Boudreaux also testified that, after Giles
became a preventive maintenance coordinator, he would find
Giles “every now and then” engaging in Christian counseling
during working time. Boudreaux would issue another “verbal”
warning; Giles would stop for a while; and then he would do it
again. Still, Boudreaux issued no warning notice to Giles over
the Christian counseling. At no point did Boudreaux testify that
his oral warnings to Giles contained any threat of future disci-
AVONDALE INDUSTRIES

1333
pline under Respondent’s progressive disciplinary system (i.e.,
warning notices or a discharge).
Boudreaux testified that in June 1992 his outer office was
remodeled and there was no room for Giles and his file cabinet.
(Boudreaux acknowledged that Giles’ jobs entailed a great deal
of paperwork.) Boudreaux testified that there was space avail-
able in the building at wet dock-1, so he moved Giles there.
There was also an operators department supervisor in the build-
ing, and there were ships at wet dock-1 that Giles had to work
with. Boudreaux testified that, before he moved Giles to a pri-
vate office at wet dock-1, he “informed him that [he was to
conduct] no Christian counseling because it [his office] was
kind of like a private cubbyhole.” Boudreaux testified that he
expected the supervisor (whom he did not name) at wet dock-1
to prevent Giles from future Christian counseling during work-
ing time.
Boudreaux testified that about February 1, 1993, the last ship
was finished at wet dock-1, “so we had to move the people
from there.” The supervisor and the mechanics who were head-
quartered there were moved to jobs at wet dock-3, and the only
operators department employee remaining at wet dock-1 was
Giles. Boudreaux testified that Giles asked him to be allowed to
remain at wet dock-1, and:

I told him that, yes, this could be arranged. We could
leave him there as long as there was no Christian counsel-
ing because now there was no supervisor there, and it
would [be] very tempting. And I told him no Christian
counseling in the office at that time, and I would leave him
there as long as I could because Bob Terry, the electrical
superintendent, was asking me what I was going to do
with that space. He now needed space to expand his opera-
tion up there. But I had no place to put Giles, so I told him
I would leave him there as long as I could. . . .
[I further told Giles:] Eventually when the ship [at wet
dock-3] would be completed, we would then put him
aboard the ship with the other coordinators, Mr. Don Rob-
bins and Sterling Landry.

Boudreaux testified that, in fact, Terry frequently asked him to
vacate the air-conditioned space at wet dock-1 that included
Giles’ office because the electrical department needed it for
testing of electrical equipment. (Terry testified, but he was not
asked to corroborate this testimony by Boudreaux.)
Boudreaux testified that, before completion of the LSD con-
tract that Giles was working on at wet dock-1, he had placed
other preventive maintenance coordinators on another ship (a
TAO), and much time was saved by mechanics not having to go
on shore to get memoranda. He desired the same efficiencies
with the ship then at wet dock-3, and before February he de-
cided that all preventive maintenance coordinators should be
located on ships, when office space was available.
Boudreaux testified that Giles called him on the day after his
parking lot accident (which telephone call would have been on
April 1, as I have found the facts to be). Giles stated that he was
going to his own physician because he had not signed up for
Respondent’s (contributory) insurance program. Giles told him
that he would call back when he got his physician’s opinion.
The next day (or April 2) Giles called again and said that he
would be out for approximately a week. Boudreaux testified
that he responded that Giles should call him in a week “and let
me know what the status of him would be.” Boudreaux testified
that, although the Avondale Employees’ Guide and the instruc-
tions from the medical department require absent employees to
call in each day, he requires employees to call in only weekly
when they let him know that they will be absent for extended
periods.
Boudreaux further testified that, although the medical de-
partment released Giles for regular duties when he returned
(earlier than expected) on April 5, Giles asked him if he could
be excused from going to the ship at wet dock-1, and excused
from any climbing, “because his leg was still bothering him.”
Boudreaux testified: “I told him I would leave him there [at wet
dock-1] as long as I could till his leg healed, as long as I could
hold the office work. But there would be no Christian counsel-
ing again in that office.” As previously noted, Boudreaux told
Giles that, until Giles’ leg healed from the March 30 parking lot
accident, Boudreaux would arrange it so that others could bring
Giles memoranda from the ships when he needed them.
Boudreaux further testified that Giles used crutches until about
4 weeks before June 21, then he stopped. During that 4 weeks,
Boudreaux saw Giles climbing stairs and riding a bicycle with-
out apparent difficulty.
Boudreaux testified that, before June 21, he had no knowl-
edge of any prounion sympathies that Giles may have held.
Boudreaux testified that Carr had showed him the March 16
letter that Giles had written, as quoted above; therefore, he
thought Giles opposed the Union. Boudreaux further testified
that on Friday, June 18, Giles came to him and:

He came into my office to see me, and he said, “Let
me share this with you. I am voting, preaching in my
church, praying in my church, that the Union election goes
union-free, that Avondale is union-free at the end of the
election.”

(This testimony was undenied, and it was credible.) Boudreaux
testified that on June 21 he was informed that the ballots of
clerk Chaisson and three coordinators, including Giles, would
be challenged at the Board election on June 25. He went to wet
dock-1 to tell this to Giles and further to tell Giles that he
should go and vote anyway. Giles’ office had no door. As he
approached the doorway, Boudreaux heard Giles, another em-
ployee whom Boudreaux could not identify, and Preventive
Maintenance Department Foreman Bobbitt talking “about the
Bible and religion in general.” (On cross-examination,
Boudreaux testified that he stood outside the door for about 45
seconds, and he heard Bobbitt and Giles exchanging views on a
religious point that he could not recall; the other employee said
nothing while Boudreaux was listening.) Boudreaux stepped
inside Giles’ office and asked Giles to step out into the pas-
sageway where he could talk to him privately. There, according
to Boudreaux:

I told Mr. Giles he was Christian counseling again, and
he knew he wasn’t supposed to do that. And I asked him
how his leg was. And he said his leg was fine. And I told
him being as he was Christian counseling again we would
then have to move him towards the ship, on board the ship
in an office space because he couldn’t be Christian coun-
seling. He said his leg was fine.
I then told him about the ballot that was supposed to be
put into an envelope when he voted on Friday as I was—
went up there originally to do. And he understood that.
And I told him he would be aboard the ship again with the
other coordinators, Don Robbins and Sterling. We would
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1334
open up an office aboard the ship, and we would install his
office at that time. . . .
Mr. Giles then informed me, he said, I would like to
share this with you. I attended a union meeting Saturday. I
opened invocation, and I talked for the Union against
Avondale.

Boudreaux testified that his feeling was one of “shock” because
of what Giles had told him on the previous workday about
Giles’ prayer that Respondent would remain union free, but he
only replied that Giles was within his rights. Boudreaux testi-
fied that this was the only conversation that he had with Giles
on June 21. Boudreaux flatly denied that he first mentioned the
Union, and he denied that he told Giles that he had heard that
Giles gave a speech, as well as said a prayer, at the June 19
union meeting.
When asked on direct examination why, on June 21, he de-
cided to reassign Giles from wet dock-1 to the ship at wet dock-
3, Boudreaux responded: “One, he said his leg was better; there
was no need for him being there; two, he was Christian coun-
seling again; and third, the electricians need the space to do
their work.” Boudreaux flatly denied that, before Giles told him
about it, he knew anything about Giles’ activities at the June 19
union meeting.
Boudreaux testified that, at the time that he transferred Giles
to the ship at wet dock-3, “There was two or three offices that
was released to me,” and he intended that Giles would use one
of those. Boudreaux testified that usually when ships’ offices
are released to him (or to the operators department) they are
fully equipped with desks, chairs and file cabinets, and they are
air-conditioned. Boudreaux did not, however, deny that the
room to which Giles was sent lacked all of these accommoda-
tions. Boudreaux did not testify that Giles did, or could have
done, any work after his transfer to the ship at wet dock-3.
Boudreaux testified that two other coordinators were assigned
to the ship at wet dock-3 at the same time that Giles was; these
were Supervisor Don Robbins and employee Sterling Landry.
Finally on direct examination, Boudreaux testified that, a few
days after the June 21 incident, he “chastised” Bobbitt for en-
gaging in Christian counseling “because he was a supervisor.”
On cross-examination, Boudreaux was asked how arrange-
ments were made so that Giles would have an office on the ship
at wet dock-3. Boudreaux testified “I went down to my office
and told my general foreman, Bob Olmstead, that Giles was to
have an office aboard the ship, to see to it and make sure that
the office was available for him. . . . I left it up to him
[Olmstead] to find a suitable office. . . . I told him to go put him
in an office—find the office open, the office up on the ship.”
Boudreaux was further asked on cross-examination and he
testified:

Q. And prior to June 21, 1993, there had been no
preparation to prepare or secure an office for him at wet
dock 3. Isn’t that true?
A. There was plans all along for an office aboard the
ship, sir, when it became ready and his leg was better.

Still further in the cross-examination, however, Boudreaux was
asked and he testified:

Q. Sir, you did not have an office for Mr. Giles on
board the LSD at the time that you decided to transfer him.
Isn’t that correct?
A. I had spaces available.
Q. But you didn’t have an office, did you, sir?
A. Not assigned to him. No.
Q. You didn’t even have an office assigned to you at
that point, to your craft. Isn’t that correct?
A. That is correct.

This testimony is to be contrasted with Boudreaux’s unequivo-
cal testimony on direct examination that “[t]here was two or
three offices that was released to me” on the ship, and he in-
tended that Giles would use one of those. Also to be contrasted
with Boudreaux’s testimony that Giles was transferred to an
“office” on the ship is Boudreaux’s testimony given in a depo-
sition in a collateral matter. As Boudreaux acknowledged, he
was there asked and he testified: “Question: So on June 22
when Mr. Giles, we know, was shown his office, was there
actually an office set up? Answer: No, it was being set up. Mr.
Giles was going to move in.”
Although Boudreaux testified on direct examination that he
had expected file cabinets to have been installed in the room to
which Giles was transferred, he further acknowledged that in
his deposition he was asked and he testified: “Question: Who
was expected to move Mr. Giles’s desk and cabinet—desk and
cabinet up to that [apparently meaning the ship at wet dock-3]?
Answer: My people.” Also, Boudreaux acknowledged that his
deposition contains: “Question: By furniture you mean desk
and file cabinets? Answer: Yes. His file cabinet was going to
go on the ship with him; we do take that with us.”
Finally on this point, Boudreaux was asked on cross-
examination, and he testified:

Q.[By Mr. Morgan]: Mr. Giles’s desk you said was
still up at wet dock 1?
A. Yes, sir.
Q. Do you still have an office at wet dock 1?
A. I reopened a part of what I had before. Yes, sir.

On cross-examination, Boudreaux further acknowledged that
Foreman Bobbitt was Giles’ “contact” in the preventive main-
tenance department and “it would not have been out of place”
for Bobbitt to have been in Giles’ office at wet dock-1 on July
21 when he (Boudreaux) went there. Boudreaux further ac-
knowledged that he has no problem with employees’ talking
about whatever they want, “as long as they don’t stop work-
ing.” Boudreaux testified that, during the 5 years that Giles
worked for him, he caught Giles Christian counseling “at least
four times a year,” or approximately 20 times before his dis-
charge.
Olmstead (vol. 120) corroborated Boudreaux that Giles did a
great deal of walking and climbing of stairs when he was a test
coordinator. Olmstead also testified that once, when Giles was
a test coordinator, Boudreaux asked him to speak to Giles about
his Christian counseling. Olmstead testified that he told Giles to
“do it on his own time,” but he did not testify that he threatened
Giles with discipline over the issue. Olmstead did not testify
that he ever saw Giles Christian counseling. In 1990, when
Giles was reclassified to preventive maintenance coordinator,397
Giles continued to do a great deal of walking in his work.
Olmstead also testified that in 1990 Boudreaux again asked him
to speak to Giles about Christian counseling, and he did so
(again without threatening discipline).

397 Contrary to Boudreaux’s testimony, Olmstead agreed with Giles
that Giles was a test coordinator for 2 years and a preventive mainte-
nance coordinator for 3.
AVONDALE INDUSTRIES

1335
Olmstead testified that the ship that was being worked on at
wet dock-1 when Giles was there was a repair job that finished
in February. When the repair job was finished the supervisor
and other operators, except Giles, were then moved to offices in
buildings at wet dock-3 (i.e., not a ship at wet dock-3).
Olmstead testified that Boudreaux then told him that he wanted
to move all operators on ships, as he had done successfully in
the TAO program. Olmstead testified that, again in late 1992,
Boudreaux reported again to him that Giles appeared to be
doing Christian counseling, and he again went to Giles and told
him not to do so (without any warning of discipline). As did
Boudreaux, Olmstead credibly testified that on Friday, June 18,
Giles visited his office and stated that “he was praying that the
Union would not win the election.”
Olmstead testified that he saw Boudreaux early on June 21
and:

He said, “I just came from wet dock 1. Giles is Chris-
tian counseling again. I want you to go up there and tell
him to get everything packed up, and I am going to go see
Metzger about getting the spot on the ship where he can
work out of.

(Michael Metzger was the ship’s superintendent, or overall
coordinator of crafts, for the ship at wet dock-3.) Olmstead
testified that he went to Giles and “I told him to go ahead and
start packing up all his files and everything so they could be
moved down to wet dock 3. . . . I told him that we were going
to get him a room on the vessel to go ahead and work out of on
wet dock 3; in fact, Jeff [Boudreaux] was working on that right
now.” Giles, according to Olmstead, just said, “Okay.”
Olmstead testified that the office to which Giles was as-
signed was on the second deck (i.e., the first level below the
main deck), not in the bottom of the ship as Giles described.
Olmstead flatly denied that the room had no furnishings; he
testified that it had several desks, chairs, and file cabinets, all of
which were part of the ship’s final equipment. Olmstead admit-
ted that there was no air-conditioning for, or telephone in, the
ship’s office to which Giles was assigned. Olmstead testified
that the air-conditioning was scheduled to be operational in
“about a week or so” and a telephone was scheduled to be in-
stalled in “about a week.” Olmstead denied that he saw Giles in
a room with no furnishings on June 21 and 22. Olmstead testi-
fied that the other coordinators, Landry and Robbins, were
moved from wet -dock-3 on to the ship “about a week or so”
after Giles was moved there. Landry and Robbins were delayed
because, as Olmstead testified, “The room that they were get-
ting into wasn’t completely put together yet.”
On cross-examination Olmstead testified that Boudreaux told
him what space it was on the ship that he had secured for Giles.
Olmstead did not know who told Giles which compartment to
go to. Olmstead acknowledged that when he went to the room
there were no chairs, but that was “no problem.” On redirect
examination Olmstead was not asked why the lack of a chair
was “no problem.” Olmstead acknowledged that Giles used a
telephone “frequently” in his work. On redirect examination,
Olmstead testified that a telephone was available to Giles in the
casualty control center, but he also acknowledged that the casu-
alty control center was “two decks up” from the room to which
Giles had been assigned.
Chaisson, the clerk in Boudreaux’s office, testified that, 8 or
9 months before Giles was moved from wet dock-1 to wet
dock-3 on June 21, Boudreaux told her that he intended to
move all coordinators to the ships because doing that during the
TAO program had worked out so well. Chaisson also testified
that after Giles’ March 30 parking lot fall, Giles went about the
plant on crutches; however, “a few weeks” before Giles was
moved from wet dock-1 to the ship at wet dock-3, she saw him
walking without crutches and saw him going around by bicycle.
Chaisson further testified that, about a month before Giles’
June 21 assignment to the ship at wet dock-3, she asked how
his leg was, and “[Giles] told me he was blessed, and that God
healed him.” Chaisson also testified (on redirect examination)
that, after Giles’ parking lot accident on March 30, but before
Giles’ transfer to the ship at wet dock-3, Boudreaux told her,
“[t]hat if he caught him Christian counseling again, he was
going to move him to the LSD.”
Assignment of More Onerous Work to Giles—Conclusions
In deciding whether the General Counsel has presented a
prima facie case that Giles’ June 21 transfer was unlawful, the
first issue to be addressed is whether Respondent’s supervision
had knowledge of Giles’ union activities before the decision to
transfer him was made. Boudreaux testified that he had planned
to move Giles to wet dock-3 for a considerable, if indefinite,
time before June 21. Boudreaux further testified that he decided
to move Giles on the very day of June 21 only because he heard
Giles Christian counseling while he stood outside Giles’ door
on that date. Boudreaux further testified that he gained knowl-
edge of Giles’ participation in the June 19 union meeting only
after he called Giles out of his office and announced his deci-
sion. On the basis of this testimony by Boudreaux, and certain
corroboration by Olmstead and Chaisson, Respondent argues
the General Counsel has not presented a prima facie case that
Giles was unlawfully transferred.
For a prima facie case of unlawful discrimination, direct
proof of knowledge is not required. If an employer has general
knowledge of union activities, knowledge may be inferred from
the totality of the circumstances including: (1) the timing of the
allegedly discriminatory action, (2) any evidence of disparate
treatment, and (3) any contrived nature of the reason of the
employer’s actions. See Montgomery Ward & Co., 316 NLRB
1248 (1995), and cases cited therein.
In Giles’ case, the timing was immediate; the transfer fol-
lowed Giles’ union activities on the first workday following his
union activities (which, in turn, had immediately followed
Giles’ assurances to both Boudreaux and Olmstead that he was
praying that the Union would be defeated in the June 25 Board
election). Disparate treatment is also clear; before his participa-
tion in the June 19 union meeting, Giles was allowed to be on
light duty, even though, according to Respondent’s evidence,
his leg had been healed for 2 weeks or more. Finally,
Boudreaux, Olmstead, and Chaisson credibly testified that
Boudreaux had some indefinite plan for moving all coordina-
tors to the ships, but the reason stated for moving Giles pre-
cisely on June 21 is a pure contrivance. Simply stated, the room
to which Giles was assigned was not ready for Giles, or anyone
else, to work in. As well as having no air-conditioning, it had
no desks or chairs, and Giles’ papers had not been moved there.
Olmstead admitted that the other coordinators were not moved
to the ship until at least a week after Giles because: “The room
that they were getting into wasn’t completely put together yet.”
Giles, however, was moved well before an office on the ship
was “completely put together” for him. The ship’s room to
which Giles was assigned did not even have a telephone, even
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1336
though Olmstead admitted that, in his job, Giles used a tele-
phone “frequently.” The room was at least a week short of get-
ting a telephone (or air-conditioning), but Giles was moved
anyway. As well as being further evidence of disparate treat-
ment, the precipitous movement of Giles to a nonfunctional
office shows the spurious, contrived, nature of Respondent’s
actions. I therefore find from the totality of the circumstances
that Boudreaux knew of Giles’ June 19 union activities before
he decided to move Giles to the room on the ship on June 21.
Animus toward such protected activities as Giles’ is established
throughout this decision. Accordingly, I conclude that the Gen-
eral Counsel has established a prima facie case that Giles was
unlawfully transferred to the ship at wet dock-3 on June 21, and
the burden shifts to Respondent to demonstrate by a preponder-
ance of the evidence that it would have taken the same actions
against Giles even in the absence of his known protected activi-
ties. Respondent’s defenses must therefore be examined.
On March 16, Giles sent Carr an unsolicited letter comple-
menting Carr on his “clear and concise” presentation, which
Giles “really did appreciate,” and declaring that he would not
vote for the Union in any forthcoming election. On March 30,
Giles had an accident in Respondent’s parking lot, and he was
placed on light duty; Giles was not thereafter required to go on
ships, and papers that he needed were brought to him. About a
month before June 21, Giles told Chaisson that his leg was
healed, and, during the next several weeks, Boudreaux and
Olmstead observed Giles walking normally (for him). Never-
theless, Giles was continued on light duty through Friday, June
18, when he declared to both Boudreaux and Olmstead that he
was praying that the Union would not win the June 25 Board
election. Then, on June 21, Boudreaux went to Giles’ air-
conditioned, fully furnished, fully equipped, office and told him
that he would have to move to an office aboard a ship. The
room to which Giles was assigned, it turned out, was not air-
conditioned, and it was simply nonfunctional as an office.
Boudreaux testified that, after he told Giles that he was to be
moved, Giles told him that he had given a prayer and made a
speech at the June 19 union meeting. Giles, however, testified
that Boudreaux mentioned Giles’ activity at the union meeting
before he did. The conflicts between Giles and Boudreaux,
however, arise even before that point. Boudreaux testified that
he approached Giles’ wet dock-1 office with the intention only
of informing Giles that his vote would be challenged; when he
got to the doorway, he heard Christian counseling going on;
then he called Giles outside and told Giles that he was to move
to wet dock-3. Giles, however, testified that Boudreaux walked
into his office and, in the presence of Supervisor Bobbitt, told
Giles to move to wet dock-3, and then abruptly walked out. If
Boudreaux’s approach to Giles’ office had occurred as
Boudreaux testified, and if Boudreaux later “chastised” Super-
visor Bobbitt as Boudreaux testified, Bobbitt would have been
called to so testify. Respondent did not call Bobbitt, and it of-
fers no reason for not doing so. I draw an adverse inference
against Respondent for its failure to call Bobbitt, and I credit
Giles.398
I further believe Giles’ testimony about what was said when
Boudreaux returned to Giles’ office. Boudreaux stated that he

398 On its reply brief, Respondent contends that, in deciding whether
a prima facie case exists, the Board may draw no adverse inferences, no
matter what Respondent does, or fails to do. This argument is made
without citation of any authority, except for a portion of an administra-
tive law judge’s decision that the Board refused to adopt.
had thought that Giles opposed the Union, but he had heard that
Giles had spoken at the June 19 union meeting. When Giles
attempted to minimize his activity by stating that he had only
given a prayer, Boudreaux retorted: “I understand you did more
than that; I understand you made statements against the Com-
pany.” Boudreaux had already announced to Giles that he was
being transferred to wet dock-3; Boudreaux’s immediately
returning with remarks that he had thought Giles was opposed
to the Union was an admission that Giles’ reassignment was
caused by that activity. Additionally, Boudreaux’s remarks
were admissions that Respondent was making note of the par-
ticularities of the “degree of the employee’s union involve-
ment.” See Electro-Voice, Inc., 320 NLRB 1094 (1996), as
quoted above. Therefore, I find and conclude that, in violation
of Section 8(a)(1), Respondent, by Boudreaux, on June 21,
coercively created an impression of surveillance of an em-
ployee’s protected activities. Finally, by introducing his coer-
cive remarks with a statement that he had thought that Giles
opposed the Union, Boudreaux was sounding out Giles about
his then-feelings about the Union. This also, I further find and
conclude, was an interrogation of an employee in violation of
Section 8(a)(1).
Respondent asserts three reasons for the transfer: (1) Bou-
dreaux had intended to move all coordinators aboard ships, (2)
Electrical department Superintendent Terry wanted the space
that Giles had been using at wet dock-1, and (3) Boudreaux had
intended to move Giles from wet dock-1 the next time he
caught Giles Christian counseling. I agree with the General
Counsel that the multiplicity of reasons for the transfer, alone,
is an indication of pretext. Moreover, the defenses are sepa-
rately nonavailing:
(1) I reject the defense that Giles’ transfer on June 21 was
the product of a firm decision that was made before Bou-
dreaux’s knowledge of Giles’ union activity of June 19.
Olmstead and Chaisson testified that Boudreaux had told them
that he planned to move all coordinators on board ships at some
point; nevertheless, even if such an idea existed, Boudreaux had
no predetermined plan to start the relocations precisely on June
21. Nothing had happened at wet dock-1 (or wet dock-3) that
would have required the transfer of Giles on June 21; there was
no business necessity for the move on that date. That is, the
plan existed only as a theory in Boudreaux’s head, but
Boudreaux did nothing about it until after he learned of Giles’
participation in the June 19 union meeting, as I have found.
Then Giles was moved to a shipboard room that was strictly
nonfunctional as an office.
Moreover, it is clear that the decision to move Giles was
made in haste, rather than in a process of deliberate business
planning. Boudreaux and Olmstead testified that the room to
which Giles was sent was “supposed” to have the amenities of
an office, but it simply did not. Specifically in regard to a desk
and file cabinet, Boudreaux testified that the ship’s room to
which Giles was assigned was “supposed” to have them already
installed, but Boudreaux acknowledged in his deposition that
“my people” were supposed to move the file cabinet and desk
that Giles had been using in the office at wet dock-1. At another
point Boudreaux acknowledged that his deposition stated: “His
file cabinet was going to go on the ship with him; we do take
that with us.” In direct conflict with this testimony by
Boudreaux, Olmstead testified that there were permanent desks
and file cabinets for the room when Giles got there. Olmstead
admitted that there was no chair, but he testified that absence of
AVONDALE INDUSTRIES

1337
a chair was “no problem.” How the absence of a chair pre-
sented “no problem,” however, was left unexplained on redirect
examination. Giles, I find, was sent to an unfurnished room, not
an office. (Not only was Giles’ room on the ship not an office,
Boudreaux acknowledged that his craft had not been assigned
any office space on the ship by June 21.) Therefore, even grant-
ing that Boudreaux had some generalized plan to move coordi-
nators such as Giles on to ships, he certainly had no plan to do
so before offices were ready for them.
(2) I reject the defense that Giles’ transfer was the product of
a need for his wet dock-1 office space by the electrical depart-
ment. Respondent made no attempt to corroborate Boudreaux’s
testimony that Terry had desired the office space at wet dock-1
that had been occupied by Giles. Even if Terry had expressed
interest in the space, there is no evidence that he was prepared
to assume it on June 21; moreover, Boudreaux acknowledged
on cross-examination that the operators department still uses
the office space at wet dock-1.
(3) I reject the defense that Giles’ transfer was the result of
his Christian counseling. Boudreaux defined Christian counsel-
ing as “talking religion and Bible to the people” on working
time. Giles denied that he engaged in “Christian counseling” on
working time, but he did not deny “talking religion and Bible to
the people.” Specifically, Giles was called in rebuttal, but he
did not deny that, when Boudreaux approached his office at wet
dock-1, he, Bobbitt and the safety department employee had
been discussing “Bible and religion in general,” as Boudreaux
testified. I credit Boudreaux that he heard Giles, the safety de-
partment employee, and Bobbitt discussing the Bible. Never-
theless, I do not believe the testimony of Boudreaux (or the
corroboration by Chaisson) that Boudreaux had previously
decided to move Giles to a ship the next time he caught him
Christian counseling; nor do I believe that he did so, even in
part, for that reason. Boudreaux testified that in June 1992 he
started warning Giles that he would be moved to a ship if he
continued Christian counseling. This testimony appeared to be
nothing but testimony that was tailored for the occasion. More-
over, Boudreaux testified that Giles continued to do Christian
counseling, but he still did not move Giles until after the June
19 union meeting. This factor, alone, convinces me that the
warning was not given at all. Also, Giles credibly denied in
rebuttal that he was ever warned about talking about anything
on the job. Finally, when Boudreaux approached Giles’ office,
Giles was not talking to himself, and Giles was not just discuss-
ing the Bible with another employee. Supervisor Bobbitt was
there and, according to Boudreaux, Bobbitt participated in the
Bible discussion. Presumably, the supervisor would not have
allowed the Bible discussion to be conducted if there was any
work that either of the employees could have been doing. As-
suming, however, that all three men were consuming working
time for the purpose of Bible discussions, the presence of, and
the participation of, Supervisor Bobbitt lent the element of
condonation to Giles’ conduct.
Another reason that I reject the proposition that Giles’ Bible
talking precipitated his transfer on June 21 is that there are
conflicts between Boudreaux and Olmstead that demonstrate
that the specific room to which Giles was transferred had been
selected even before Boudreaux approached Giles’ office on
wet dock-1. Boudreaux and Olmstead squarely contradicted
each other about who made the arrangements for the room to
which Giles was sent. Boudreaux testified that he left the ar-
rangements to Olmstead; Olmstead testified that Boudreaux
made the arrangements. (Also, Olmstead testified that he told
Giles: “that we were going to get him a room on the vessel to
go ahead and work out of on wet dock-3; in fact, Jeff
[Boudreaux] was working on that right now.”) Giles could not
have known that Boudreaux and Olmstead would conflict on
this point. It is clear to me, and I find, that, when Boudreaux
walked into Giles’ office, he told Giles “exactly . . . by num-
ber,” what room on the ship that Giles was to go to, as Giles
testified. Another reason for crediting Giles on this point is
Olmstead’s inability on cross-examination to explain who had
given the specific room assignment to Giles, even though he
had testified on direct examination that it was he who told Giles
“to start packing up all his files.” Finally, Bobbitt was there; if
Boudreaux had not told Giles exactly what room to go to, as
Giles testified, Respondent would have called Bobbitt to testify.
That is, Boudreaux had decided to move Giles on June 21 even
before he got to Giles’ doorway and heard the Bible talk (or
“Christian counseling”).
The final issue on Giles’ transfer of June 21 is whether, as al-
leged, it was a transfer to a more onerous position. I agree with
Respondent that Giles’s leg had healed from any possible dam-
age from the March 30 accident, and he could climb stairs ade-
quately, as he had done before. Nevertheless, other factors
compel the conclusion that the conditions to which Giles was
subjected at wet dock-3 were more onerous than those under
which he worked at wet dock-1. Although Giles physically
could have gone about the ship and gotten the papers that he
needed, the fact remains that he was not required to do so be-
fore June 21. Therefore, the job after June 21 was physically
more onerous than it had been before. But more importantly,
after the transfer Giles was deprived of the work that he was
hired to do, and he was dispatched to sit in a room by himself
(if he could somehow secure a chair from somewhere else).
Moreover, because of the lack of his files and the lack of the
usual office amenities, there was no possibility that Giles could
do any work. Boudreaux testified that Giles had been an intelli-
gent, excellent employee. The situation into which Giles was
placed would have been a humiliating situation for any em-
ployee, especially one who had been such a good employee. I
find that the transfer of Giles was a transfer to more onerous
conditions.
In summary, the General Counsel has presented a prima fa-
cie case that on June 21 Giles was assigned more onerous work
because of his union activities, and Respondent has failed to
demonstrate that it would have so assigned Giles even in the
absence of those known union activities. I therefore conclude
that, by transferring Giles to a more onerous job position on
June 21, Respondent violated Section 8(a)(3).
(2) Giles’ termination as assumed to have quit
Giles testified that on June 23 he called in to Boudreaux and
told him that he could not come to work. According to Giles: “I
informed him that my leg had—was swollen and that I was
experiencing pain—severe pain in it and that I would not be in
that day.” Boudreaux replied that there would be “No prob-
lem.” Giles was selected to be an observer for the Union at the
June 25 Board election. As an observer, Giles was excused
from work on June 24 to attend an instructional session that
was conducted by the Regional Office. Giles testified that he
called Boudreaux’s office on June 24 and spoke to Chaisson.
Giles testified that he asked Chaisson to relay a message to
Boudreaux that he would not be in that day, and that “my leg
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1338
was still swollen and that I was experiencing pain.” On Friday,
June 25, Giles did serve as an election observer (sitting, as
Giles described it, with his right leg elevated).
Giles further testified that on Monday, June 28, he called
Boudreaux and: “I informed him that I would not be in, that I
was going to make an appointment with a doctor as soon as
possible. And he told me okay.” Giles did not testify that he
told Boudreaux why he was going to miss that day’s work, and
Giles did not testify that he told Boudreaux that he would be
out for any period of time after June 28.
Giles acknowledged that did not call in to Boudreaux’s de-
partment again through the date of his discharge on August 3.
On July 7, according to Giles, Chaisson called him at home and
told him that Boudreaux wished to speak to him. Further ac-
cording to Giles:

Mr. Boudreaux came on the phone, and he said, “What
happened, Giles; I haven’t heard from you; Have you quit
your job?”
And I responded to him, “No.”
He then stated to me, “Well, I have your termination
papers on [Vice President] Ken Genter’s desk. We want to
know what you are going to do. Do you want your job?”
I then informed him that, “I want my job; yes, I want
my job, and I plan to come back to work.” . . .
He gave me further instructions. He said, “If you are
still having problems with your leg, call Medicaland ask
for Mr. Sevino, and he will give you further instructions.”
And that was the end of the conversation.

(Respondent employs no one named Sevino; David Sansoni is
Respondent’s manager of medical services.) Giles testified that
he went to Respondent’s first aid department on Friday, July 8,
where he told the attendants there that he was scheduled to have
surgery on July 20. Giles was given two forms; one was to get
the physicians’ diagnosis of his condition, and one was to re-
port the result of the scheduled July 20 surgery. (The medical
department’s progress report that was offered by the General
Counsel does not reflect a visit by Giles on July 8; the report’s
entry for April 1, however, recites that Giles was then given the
described forms. I do not believe Giles’ testimony that he went
to the medical department on July 8.)
On July 12, Giles’ personal physician signed a “disability
certificate” stating that Giles was unable to work because of the
condition of his right knee; the certificate (which was part of a
form created by the private physician, not by Respondent) fur-
ther stated that Giles was scheduled for arthroscopic surgery on
July 20. Giles testified that he brought the disability certificate
to a clerk in Respondent’s medical department on July 13. The
medical department’s entry on the July 13 progress report is:

[Patient] came in with enclosed certificate of disabil-
ity. He also stated that he is not actually working. Patient
was given 2 long forms.
1st to be brought back with the information concerning
patient’s inability to do his regular work.
2nd to be brought back after his arthroscopic surgery
(7/20/93).
Patient also stated that he is on his way to get a second
opinion.

(That is, according to the medical department entries, Giles was
given sets of these forms on two dates, April 1 and July 13; I
believe that that is what happened; Giles simply did not return
the first set.) Giles testified that he took the first company form
to his personal physician that day, July 13. Boilerplate on the
first company form states: “For intelligent assignment of work
on [sic] your release of the above-named employee, the Com-
pany Physician requests the following data.” Giles’ physician
dated the form as July 13, and he wrote that (1) the accident
occurred on “3/30/93,” (2) the diagnoses was “Internal de-
rangement [of] right knee,” (3) the “Treatment Period” was
“6/29/93 & 7/12/93,” (4) laser arthroscopic surgery was sched-
uled for “7/20/93,” and (5) the date of Giles’ final release to
return to work was “undetermined.” On rebuttal, Giles testified
that he returned this form to Respondent’s medical department
on the same day that he received it, July 13. Giles acknowl-
edged that the arthroscopic surgery was never performed. Giles
testified that he did not have the surgery because of something
that his insurance company (not Respondent, or Respondent’s
medical department, or his own doctor) told him. Giles did not
testify that he ever informed the medical department that the
surgery had been canceled. Giles acknowledged that he also did
not call the operators department again.
On August 3, Respondent filed with the Louisiana Depart-
ment of Labor a notice that it would contest any unemployment
compensation claim by Giles. The notice concluded that Giles
had been discharged as: “Assumed quit—failure to notify su-
pervisor of reason for absences.” Giles testified that his receipt
of a copy of this notice in the mail was his first notice that he
had been discharged, a point that is not in dispute. Giles ac-
knowledged that, after July 13, he “never did” call in his ab-
sences to his superintendent’s department. Giles was not asked
why he did not call in between June 28 and August 3.
On cross-examination. Giles was shown the 1990 edition of
the Avondale Employees’ Guide. At first, Giles testified falsely
by denying ever having seen it. Then Giles was shown a receipt
for the booklet that he had signed and dated on September 13,
1990. Giles first testified falsely that: “I have never seen this
document with my signature on it, dated 9/13/90. I didn’t sign
this document dated 9/13/90.” Then Giles admitted that the
signature on the receipt “appears to be my signature.” Then
Giles testified that “I don’t recall” receiving a 1990 edition of
the Avondale Employees’ Guide. Giles was then shown the
section of the Avondale Employees’ Guide that is entitled “Re-
porting Absences and Tardiness,” which, as quoted above,
states that employees are required to call their departments
daily during absences. Giles then was asked and he testified:

Q. BY MR. HYMOWITZ: Were you aware of that policy
of Avondale, that you were supposed to notify your de-
partment head’s office—
A. Yes, I was.
Q.—once every day while you were absent. Is that cor-
rect? You were aware? Is that true?
A. Yes, I was.

As noted, Giles testified on direct examination that he did call
in on June 28. Giles specifically denied that, in the telephone
conversation with Boudreaux on July 7, he was told that he
should call in. On redirect examination, Giles was not asked
why he did not call in when he was absent from June 29
through August 3.
Giles’ Discharge—Respondent’s Evidence
Boudreaux flatly denied Giles’ testimony that Boudreaux
called him on June 23 to report his absence of that date.
AVONDALE INDUSTRIES

1339
Boudreaux also flatly denied Giles’ testimony that Giles had
called him on June 28. Boudreaux testified that, as of July 6,
Giles had failed to call in for 6 consecutive workdays; to wit:
June 28, 29, and 30 and July 1, 2, and 6 (Monday, July 5 being
a holiday in 1993). During that time he had instructed Chaisson
to try to reach Giles at his home. Boudreaux testified that Cha-
isson reported to him that she had done so “numerous” times,
but all she got was an answering machine and she left messages
for Giles to call her. Chaisson testified that she called Giles
twice during this period; she reached only an answering ma-
chine; she left a message that Giles was to call her, but she
received no return call from Giles.
Further on direct examination, Boudreaux testified that on
July 6 he decided to discharge Giles; Boudreaux was asked and
he testified:

Q. And on what basis? Why?
A. He hadn’t reported in three consecutive days, and
we started counting.
Q. And was there any work rule at Avondale concern-
ing an assumed quit at that time?
A. If you had three days where you didn’t call in, you
could assume quit after three days and terminate him.

As previously noted, the Avondale Employees’ Guide states
(before the progressive disciplinary system is set out) that fail-
ure to report absences on a daily basis “will result in either a
written warning notice or discharge.” Also, major offense-1 of
the Avondale Employees’ Guide, for which either a warning
notice or discharge is the stated penalty, is: “Unexcused ab-
sences of three (3) consecutive working days.”
Boudreaux testified that on July 6, he instructed Chaisson to
create an ASI-22 (discharge) form for Giles. In the space for
explanation for action, Boudreaux, in consultation with Olm-
stead, caused Chaisson to type:

Charles Giles has missed over three consecutive work-
ing days without being excused. Due to his lack of com-
municative response in this matter, it can only be con-
cluded [that] he has quit. His termination will be based on
Major offense Number One in the Employee’s Guide.
Last day worked: 6–22–93. Last excused abs. 6–28–
93.
He has not called First Aid or the Insurance Dept.
Note: (First Aid has not heard from him since [sic]
three months.)

Approvals spaces are signed by Olmstead, Boudreaux, and
Vice Presidents Genter and Simpson. Genter’s signature is
undated; the others are dated July 6.
Boudreaux further testified that on July 7 Giles called him
(contrary to Giles’ testimony that Boudreaux called him).
Boudreaux testified that, when Chaisson put the call through to
his office, Olmstead was with him and could hear his side of
the conversation. According to Boudreaux:

I talked to Mr. Giles, and I asked him where was he at,
what was he trying to do, did he want to quit because I had
already made up termination papers for him on an as-
sumed quit.
He told me, no, he didn’t want to quit, that he had hurt
his leg two weeks before, and he was going to a doctor.
He then told me he didn’t—he never told the supervi-
sor or First Aid, he never reported it, but he was using his
insurance, his wife’s insurance. He didn’t have Avondale
insurance.
I told him it made no difference, he still had to call
First Aid and the Insurance [Department] people, that if he
wanted to keep his job he had to call me at least once a
week and advise me and keep me up to date on his status.

Boudreaux denied that, during this telephone call, he told Giles
to go to the medical department and speak to any individual.
Boudreaux testified that, after this telephone call with Giles, he
stopped the processing of the ASI-22 form, and it did not reach
the human resources department for final termination. When
asked why he did so, Boudreaux replied, “Because Mr. Giles—
I wanted to give him another chance to keep his job. He was a
good employee, and I did not want to lose him.”
Chaisson also corroborated Boudreaux’s testimony about
what he told Giles on July 7. Chaisson testified that Giles called
on that date; she put the call through to Boudreaux; when
Boudreaux came out of his office immediately after the tele-
phone call, Boudreaux told her that he had told Giles “that he
wanted him to call him once a week. And he wanted me to let
him know when he called.” Further according to Chaisson’s
testimony, she at that time wrote on the back of the ASI-22
form that had been created: “Was told on July 7 to call in once
a wk. As per Jeff Boudreaux.” (The emphasis, as always, is
original.)
Boudreaux testified, and it is undisputed, that Giles did not
call Boudreaux’s office again. Boudreaux testified that he in-
structed Chaisson to try to telephone Giles’ home “[t]wo or
three times a week” between July 7 and 27; Chaisson reported
that she had gotten no answer and had left a message on the
machine. Boudreaux testified that during the July 7—27 period,
he called Respondent’s insurance department twice; he was told
that Giles had been sent a registered letter, but he had not re-
sponded. (Giles was shown such a letter on cross-examination,
but he denied receiving it.) On the day before he decided to
discharge Giles, apparently July 27, Boudreaux called someone
in the medical department and was told that Giles had been
there and had been given “paperwork” to have completed, but
he had not returned it. Boudreaux testified that on July 27 or 28
he called Manager of Employment Julie Bolden, the immediate
subordinate of Vice President Griffin in Respondent’s human
resources department. After conferring with Bolden, Boudreaux
decided to discharge Giles because, as Boudreaux testified:
“After all we tried to do to get in touch with him, and every-
thing was done, he refused to call or let us know his status, so
we just assumed he quit.” Boudreaux testified that all Giles had
needed to do to keep his job was to call him once a week.
Boudreaux testified that Giles was not penalized in any way for
his absences through July 7.
On cross-examination by the Charging Party, Boudreaux ac-
knowledged that, if an employee calls in and states a legitimate
reason for being absent, he is coded “05” on his department’s
MCRs. On June 28, Giles was carried on the MCR of Operators
Department Foreman David Schlauderhoff. Schlauderhoff
coded Giles “05” (excused absence). Although he denied that
Giles called him on June 28, Boudreaux acknowledged that
foremen, such as Schlauderhoff, sometimes are in the outer
office and take absent employees’ calls. Boudreaux was also
shown again the (rescinded) July 6 ASI-22 form for Giles, and
Boudreaux was referred specifically to the notation: “Last ex-
cused abs. 06–28–93.” Boudreaux acknowledged that notation
was on the July 6 ASI-22 form at the time that he signed it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1340
Boudreaux nevertheless, insisted that Giles had not called in on
June 28, but he admitted that he could not explain why Giles
was coded “05” on that date. Respondent did not call
Schlauderhoff to testify. Boudreaux acknowledged that he did
not ask Schlauderhoff (or anyone else) why Giles had been
coded “05” on June 28.
Olmstead testified that he was in Boudreaux’s office on July
7 when Boudreaux spoke to Giles. Olmstead testified consis-
tently with Boudreaux about what he heard Boudreaux tell
Giles.
Giles’ Discharge—Credibility Resolutions and Conclusions
Even without the existence of a written, categorical work
rule, the position of an employee who simply disappears is not
a sympathetic one. Moreover, in this case, Giles (finally) ac-
knowledged that he had received a copy of the Avondale Em-
ployees’ Guide in 1990, and although he acknowledged that the
Avondale Employees’ Guide required him to call in on each
day of absence, and although he acknowledged his signature of
April 1 on a medical department record that told him that he
must call his superintendent’s office on each day of absence,
Giles admitted that he did not call in to Boudreaux’s office
from at least June 28 through July 28 (when the decision to
discharge him was made). The General Counsel did not ask
Giles why he failed to call in over that long period.399 On brief,
the General Counsel states:

For the exact same [sic] reasons the General Counsel
states in the arguments regarding [alleged discriminatee]
Aubrey May, the testimony elicited from both witnesses of
Respondent and the General Counsel establish that once
Giles was out of work through the Company’s First Aid
Department, pursuant to the practice maintained by Avon-
dale, he had no duty to continue to call in either daily or
weekly.

The evidence upon which the General Counsel relies in May’s
case does not support the proposition advanced. In May’s case,
the General Counsel proved, at most, that four employees who
had disabilities that were confirmed by either the medical de-
partment, or the individual departments, or both, were excused
from calling in for various periods of time that were reasonable
under the circumstances of each case. This evidence, however,
does not prove that, somehow, Giles was treated disparately.
(Indeed, the General Counsel does not contend that Giles was
treated disparately.) Moreover, Giles was not “out of work
through the Company’s first aid department,” in the sense that
the General Counsel contends. On June 13, Giles presented the
first aid department with the fait accompli that he was not com-
ing to work at least until July 20 because he was going to have
surgery on that date. Giles did not ask the medical department
personnel to examine him,400 and the medical department per-
sonnel, in no way, agreed that Giles was unable to come to
work. (At most, the medical department was documenting only
a claim of inability to work.)

399 Also, the General Counsel asked Giles if his wife had been in
town to receive telephone messages, but the General Counsel did not
ask Giles if he was in town after July 13.
400 Giles’ conduct is to be contrasted with that of alleged discrimina-
tee Glenda Dennis who sought, and obtained, treatment from the medi-
cal department some 3 months after her parking lot injury, as discussed
infra.
Assuming, however, that Giles was “out of work through the
Company’s first aid department,” before July 20, after that date
he was assuming that status under false pretenses. On July 13,
in his last contact with the first aid department, Giles stated (in
writing) that he was to have surgery on July 20. Giles did not
have the surgery, and he did not inform the medical depart-
ment, or the operators department, that the surgery had been
canceled. Indeed, the surgery was never performed. Giles,
however, was content to indefinitely leave the medical depart-
ment, and the operators department, under the false impression
that he had had the surgery and was presumably recuperating
from it.401 Under the General Counsel’s theory of the case,
Giles could have continued to withhold the information that his
surgery had been canceled, and could have refused to come to
work, forever. No business could allow an employee to do that.
The reasonableness of Respondent’s rule is not an issue, but it
is obvious why Respondent, in the Avondale Employees’ Guide
and on the medical department forms, places an affirmative
duty on the employees to call in to their superintendents. The
departments depend on employees to come to work. No one
could seriously argue that they need to be updated regularly on
an employee’s status to avoid just the sort of situation that was
created when Giles canceled his surgery.402
Because of this obvious need of any supervisor to know the
status of his employees who claim to be unable to work, and
because of the corroboration by Olmstead and Chaisson, and
because of the better credibility of Boudreaux on the point, I
discredit Giles and I find that on July 7 Boudreaux told Giles to
call in to the operators department each week that Giles might
be out because of his claimed physical condition. Although
department superintendents such as Boudreaux may require
fewer calls than the daily calls that are required by the Avon-
dale Employees’ Guide and the medical department forms,
there is no evidence that any superintendent allows employees
to go indefinitely without calling in when they are disabled for
prolonged periods. I do not believe that Giles’ superintendent
did. Even if Boudreaux told Giles nothing about calling in,
however, Giles did not testify that he had any reason to disre-
gard the imperatives of the Avondale Employees’ Guide and
the medical department form and simply stop calling in indefi-
nitely. That is, Giles did not testify that he did not call in be-
cause he was “out of work through the Company’s first aid
department” (or because of his claimed intumescence of his
knee, or because of any other reason).
Finally, I agree with Respondent on brief that, had it wished
to discharge Giles, it would have done so at its first opportu-
nity. Although I would find that Giles did call in on June 28,
Giles did not testify that he then told Boudreaux that he would
be out for an extended period of time. He certainly did not then
tell Boudreaux that he was “out of work through the Com-
pany’s first aid department.” According to his own testimony,
Giles only told Boudreaux on June 28: “that I would not be in,

401 This certainly explains the fact that “08” (personal illness) was
coded on the MCRs that were created after July 7. Moreover, employ-
ees are not excused from call in requirements simply because of how
supervisors code MCRs.
402 On brief, the General Counsel finds fault with Respondent’s tes-
timony about the attempts of Boudreaux and Olmstead to secure infor-
mation by calling the Insurance and medical departments, as well as
Giles’ home. The problems that the General Counsel points out make
Respondent’s affirmative call-in requirements appear all the more
reasonable.
AVONDALE INDUSTRIES

1341
that I was going to make an appointment with a doctor as soon
as possible.” Giles did not tell Boudreaux that he would be
absent for any period of time other than that required to make
an appointment with “a doctor.” Giles had not been to the first
aid department, and not even the General Counsel argues that,
as of June 28, Giles was “out of work through the Company’s
first aid department.” As even Giles admits, he did not call in
for the next 6 workdays (June 29 and 30, July 1, 2, 6, and, ac-
cording to his testimony, July 7). Nevertheless, on July 7,
Boudreaux rescinded the first ASI-22 discharge form that he
created. Although some of Respondent’s testimony regarding
the handling of that paperwork is clearly inaccurate, the fact
remains that Respondent rescinded the July 6 decision to dis-
charge Giles when it clearly had a legitimate reason to dis-
charge him, even under the General Counsel’s theory of the
case.
For all of the above reasons, I find that Respondent has dem-
onstrated that it would have discharged Giles, even absent his
known prounion sympathies. I shall therefore recommend dis-
missal of the allegations that Respondent discharged Giles in
violation of Section 8(a)(3).
b. Aubrey May’s termination as assumed to have quit
Aubrey May (vol. 7) was employed as a welder-fitter in the
electrical until he was discharged on May 10, 1993. The first
complaint, at paragraph 27, alleges that by discharging May
Respondent violated Section 8(a)(3). The General Counsel
contends that Respondent discharged May because of his
known union activities and expressions of sympathy which
included his wearing prounion insignia and his distributing at
least one union handbill in a supervisor’s presence; the General
Counsel also contends that Respondent’s supervisors knew of
May’s prounion sympathies because he responded affirmatively
to a violative interrogation. Respondent denies that the interro-
gation occurred. Respondent further answers that its supervi-
sors had no knowledge of any prounion sympathies that May
might have held at any relevant time. Respondent further an-
swers that May was discharged solely because May simply
disappeared from the job without calling in to his superinten-
dent’s office, as required by Respondent’s established work
rules. The General Counsel replies that the defense for May’s
discharge is a pretext because May was absent only because of
an on-the-job injury, as Respondent’s supervisors knew. Alter-
natively, the General Counsel replies that May was treated
disparately because other employees who were sick or injured
failed to call in, but they were not discharged. Ultimately, I find
and conclude that May’s discharge was lawful.
May’s immediate supervisor was Foreman Glenn Murray.
May testified that, sometime during the month of March,
Murray saw him pass a union handbill to another employee.
May did not describe any sign of recognition that Murray may
have displayed, and Murray credibly denied seeing May pass a
union handbill to another employee. May testified that he
placed a union sticker on the bumper of his car, but there is no
evidence that any supervisor saw it. May further testified that
he wore a union pin on his shirt for 2 days during March.
Murray did not deny seeing May wearing a union pin.
May testified that, before work on March 22, he met in
Murray’s office with Murray and employees Keith Falgout,
Russell Ockman, and Richard Scheckschneider. According to
May:

Richard was talking about he wouldn’t know if the Un-
ion would be good or not. He was undecided about it. And
Russell Ockman, he just told me that he was just totally
against the Union.
And so that is when my foreman [Murray] asked me—
he come out and he said, “Mississippi [May’s nickname],
did you sign a union card?”
And I told him, “Yes, and I would sign another one.”
Then [Murray] turned around and he asked Keith Fal-
goust, did he sign a union card, and Keith told him “yes.”
And then [Murray] started giving out . . . the work as-
signments.

Falgoust (vol. 8), a current employee, was also called by the
General Counsel; he fully corroborated May’s testimony about
Murray’s questions, but Falgoust testified that when he re-
sponded to Murray: “I told him it is none of his business.”
Based on this testimony by May and Falgoust, paragraph 9 of
the first complaint alleges that Respondent, by Murray, unlaw-
fully interrogated its employees.
May’s Discharge
May testified that on April 14, a Wednesday, he was injured
on the job about one-half hour before the quitting time of 3:30
p.m. May testified that he had lifted too much weight; he felt a
muscle pull, and then “I felt my back snap.” May finished the
job he was working on and went to Murray’s office where he
found Murray and Ockman. May was asked and he testified:

Q. Did you say what you hurt? Did you say what part
of your body you hurt?
A. I just told him I believed I had hurt my back.403
That is the part I told him.
Q. What was his response?
A. Nothing. . . . He was doing his paperwork. He got
up and left.

(Ockman did not testify.) May testified that he was close to
Murray, and there was no reason that Murray would not have
heard him, but he described no action by Murray that would
indicate that Murray had, in fact, heard him. May further testi-
fied: “It was time to go home, and I went home.”
May did not report for work, or call in to work, on April 15;
he testified that on that date, he went to the VA hospital for
treatment. On April 16, when May reported for work, Murray
was absent. May testified that Ockman was then serving as
“acting foreman,” but there was no corroboration for May’s
testimony on that point; moreover, Respondent adequately
demonstrated that only other salaried supervisors may substi-
tute when a foreman is absent. At any rate, May gave to Ock-
man a note on a VA prescription form that is captioned: “To be
filled in VA pharmacies Only.” In the space where prescrip-
tions are to be written, the note only indicated a future ap-
pointment. The note stated: “Excuse Aubrey May from work
4/26/93 to see me.” The note is dated “4/15/93.” In a space for
“Signature and Title of Physician or Dentist,” there is entered
“B. Combs.” Although the signature is not followed by a title,
or “M.D.,” May testified that Combs was, in fact, a “medical
doctor.” The note did not say anything about May’s being in-
jured, or even being symptomatic of having suffered an injury.
Ockman gave the note back to May and told May to give it to

403 The Tr., vol. 7, p. 1067, L. 25, is corrected to change “tack” to
“back.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1342
Murray on the next workday, Monday, April 19. May worked
the entire day of April 16 without complaint to any supervisor
and without going to the medical department.
May did not go to work, and he did not call in to the electri-
cal department office, from April 19 through April 22; he testi-
fied that he stayed at home on those days, in bed, because of his
back pain. On Friday, April 23 , May also did not call in to the
electrical department office, but he did go to Respondent’s
medical department. May did not see a company doctor on
April 23. May did see a medical department attendant, but the
attendant did not examine May. The attendant did listen to
May’s account about an April 14 work-related injury, and the
attendant took May’s badge. (As previously noted, taking an
employee’s badge is a procedure that prevents an employee
from working because the badges are also electronic cards by
which the employees punch in and punch out.) On a “Report of
Accident” form, the attendant wrote: “Advised [May] to call
Monday at 12 noon to see if [May’s report of an accident has
been] verified.” It is undisputed that May did not call the medi-
cal department on the following Monday, April 26. May also
did not go to Respondent’s medical department again.
May acknowledged that, when he went to the medical de-
partment on April 23, he signed and dated a form that states: “I
have been advised that I must call my superintendent’s office
each day that I do not report to work.” May, however, denied
that he read the statement before he signed it.
May continued to fail to call in to the electrical department
through May 10. On May 13, Respondent filed with the Louisi-
ana Department of Labor a notice that it would contest any
unemployment compensation claim by May. The notice stated
that May had been terminated as: “Assumed quit—failure to
notify supervisor of reason for absences.” May testified that
receipt of a copy of this notice was his first information that he
had been discharged.
May was not asked why he did not call in during his ab-
sences.
On cross-examination May acknowledged having received
the 1990 edition of the Avondale Employees’ Guide, but he
denied having read it. When asked if he knew of the Avondale
Employees’ Guide’s requirement that absent employees call in
to their superintendents’ offices each day, May replied, “Not
really. No, sir.” May further acknowledged that on October 28,
1992, he signed a form stating: “This is to acknowledge that I
have received an Avondale Telephone Number Card with my
superintendent’s name, foreman’s name and telephone number
on it. I also understand the call-in procedure for my depart-
ment.” May further acknowledged that on April 23, when he
went to the medical department, he did not also call his superin-
tendent’s department and notify any persons there of the reason
for his absences.
May’s Discharge—Respondent’s Evidence
Murray testified that he attended an instructional session that
was conducted by Respondent. Murray was asked and he testi-
fied:

Q. And what were some of the things that you were
told in those meetings?
A. Like not to threaten them, couldn’t make no prom-
ise, couldn’t spy on them, stuff like that.
Q. And did you follow those rules?
A. Yes, I did.

Murray did not, however, testify that he was told at the instruc-
tional session not to interrogate employees. Murray did deny
that he interrogated May. Further, Murray denied that May told
him that he supported the Union. Murray did not, however,
deny that he saw May wearing a union button, and he did not
deny knowing, somehow, that May favored the Union. Also,
although Murray denied interrogating May, he did not deny
interrogating Falgoust.
On May 10, Murray composed a warning notice for May.
Murray marked the box for “Other” major offense under the
Avondale Employees’ Guide. In the space for the “Date and
Time of the Offense,” Murray entered May 5, 6, 7, and 10. In
the space for “Reason for Warning,” Murray entered “Assume
Quit.” Murray sent the warning notice to the office of Electrical
department Superintendent Terry.
(Murray testified that he “terminated” May. When asked
what he meant by that, Murray testified: “All I did was write a
citation saying I put so many dates on it and I wrote, ‘assumed
quit,” because he still never came back to work.” When called
by the General Counsel pursuant to Federal Rules of Evidence
611(c), Murray also testified (vol. 41): “I just write, ‘Assumed
quit,’ and send it to the main Electrical office. And they go over
it and then decide what to do.” That is, Murray was actually
testifying that he recommended the discharge of May when he
completed a warning notice and sent it to the electrical depart-
ment office.)
Murray testified that he did not recommend May for dis-
charge before May 10 because: “He was a good worker and I
was trying to give him the benefit of the doubt. You know,
maybe he might have came back.” Murray, however, flatly
denied that anyone told him before May 10 that May had been
hurt on the job.
In defense of May’s discharge, Murray testified on direct ex-
amination that employees are required to call in each day that
they are absent. If an employee does not call in, “then you get
an unexcused absence,” according to Murray. If an employee
does “get an unexcused absence” from his supervisor, he is
coded “06” on the supervisor’s MCR for that day. Despite the
plain implication of Murray’s testimony that he had treated
May’s absences as unexcused, and had coded May as “06,
“Murray did not do so, as discussed below.
Murray further testified on direct examination that it was
several weeks after May was discharged that Falgoust told him
that May claimed that he had hurt his back. Again, Murray
denied any knowledge of the accident before that point.
On cross-examination, Murray acknowledged that it was ac-
tually 15 workdays, or three weeks, that May did not call in
before he recommended May’s discharge. Murray further ac-
knowledged that, during May’s absences, he did not call
Terry’s office to find out if May had called in, and no one from
Terry’s office called him about May. Murray was further asked
and he testified:

Q. Did you ask anybody in the crew if they had heard
from Aubrey May?
A. No.
Q. Now, you said today that you knew Mr. Keith Fal-
goust was his good friend. . . . Did you ask Mr. Falgoust
where Aubrey May was?
A. No, because he wasn’t saying nothing.

AVONDALE INDUSTRIES

1343
Almost immediately, however, Murray again testified that it
was weeks after the discharge that Falgoust told him that May
had been injured. Then he was asked and he testified:

Q. And do you remember how the conversation came
up, that Aubrey May had hurt his back?
A. No. I always asked—you know, I was asking where
he was at, you know, and nobody knew nothing.
Q. So you were asking Falgoust where May was?
A. Yes.
Q. What he was doing?
A. Yes. Why—you know.
Q. Why he hadn’t shown up for work.
A. Right.
Q. And that is when he [Falgoust] told you that he
[May] had hurt his back?
A. No. He had told me—he didn’t tell me nothing for
the first couple of times. You know, like the first couple of
days [that May was consecutively absent]. And then way
after that, he comes there and he said that he hurt his back.

Still later in the cross-examination Murray testified that he
returned to work from vacation on Monday, April 19. (Again,
April 19 was also the first day that May failed to appear after
working a full day on Friday, April 16.) Murray was asked and
he testified:

Q. [From April 19 until] the date that you wrote up the
discharge slip for Mr. May, [on May 10], how many times
did you ask Mr. Falgoust where Mr. May was?
A. Maybe once or twice.
Q. When was the first time that you asked him?
A. Maybe two days after he didn’t show up, like the
Wednesday or something like that.
Q. And what did Falgoust tell you?
A. He don’t know.
Q. And when was the second time?
A. Two days after that.
Q. So twice, then, in that first week.
A. Yes.
Q. And what did Falgoust tell you the second time?
A. He don’t know.
Q. And you never asked Falgoust again. Right?
A. Yes. I never asked him again.

Further on cross-examination, Murray denied that Ockman was
even a leadman. Murray testified that Foreman Calvin Lewis,
not Ockman, substituted for him on April 16, the day that May
claims to have tendered a doctor’s note to Ockman.
Further on cross-examination, Murray testified that employ-
ees who were injured on the job are supposed to go to the
medical department. Murray further acknowledged that his
pretrial affidavit states: “If an employee is going to be out of
work for any period of time as a result of an injury, then the
First Aid office contacts the main Electrical office and advises
them of the absence. In this situation, the employee is not re-
quired to call in to his supervisor every day.” Murray, however,
testified that his affidavit was incorrect and that absent employ-
ees are required to call in each day.
Terry (vol. 90) testified that if an absent employee fails to
contact the electrical department office for “three or more”
days, he is terminated as “assumed quit.” If, however, an em-
ployee is certified as absent because of a workers’ compensa-
tion injury, he is not considered then to be an electrical depart-
ment employee, and he is not required to call in to the electrical
department office. Terry testified that employees are not ex-
cused from the daily call-in requirement unless the medical
department had agreed that they cannot work because of a job-
related injury.
Terry further testified that, when he received the May 10
warning notice that Murray composed for May, “I gave it to my
main office clerks and told them to validate the date and time of
the offenses, and if everything checked out and it was proper,
that they were to go ahead and prepare the ASI Form 22 for my
signature and the supervisor’s signature, which in effect termi-
nated the person as an assumed quit.” Terry testified that the
response that he received from his clerks was an ASI-22 (dis-
charge) form for May. Terry signed the form on May 10, thus
effectuating the discharge of May on that date. Terry denied
any knowledge of any prounion sympathies that May might
have held before the discharge.
May’s Discharge—the General Counsel’s Rebuttal Evidence
As noted, Murray testified that he did not know of May’s
complaint of a back injury until weeks after the discharge.
Murray also testified that he considered all of May’s absences
to have been unexcused because May never called in during the
days of his absences. As rebuttal, the General Counsel intro-
duced MCRs that Murray signed during May’s absences. On
April 15, Murray coded May’s absence as “05” (excused) on
his MCR. (As noted, May worked the full day on April 16.) For
the five workdays from Monday, April 19 through Tuesday,
April 27, Murray also coded May’s absences as “05.” On April
28, Murray coded May’s absence as “08” (personal illness); on
April 29 Murray entered no code on his MCR for May’s ab-
sence of that date. On the six workdays from Friday, April 30
through Friday, May 7, Murray also coded May’s absences as
“08.” It was not until May 10, the day that Murray recom-
mended May’s discharge, that Murray coded an absence by
May as “06” (unexcused). Respondent did not recall Murray to
explain the obvious inconsistency with his testimony that he
had considered all of May’s absences to have been unexcused.
As evidence of disparate treatment of May, the General
Counsel relies on the testimony of five witnesses: (1) May,
himself, testified that, in 1989 or 1990, he was injured on the
job. May testified: “I went straightaway to First Aid, and Dr.
Mabey [Respondent’s in-house physician] cleaned out the
wound, cut it and cleaned it out and everything, put a dressing
on it, wrapped it up with a band-aid, and sent me home on
crutches.” The medical department personnel took his
badge/timecard and sent him home; May was absent for 6
weeks, and never called in. When he healed, he came back to
work by reporting to the medical department; after seeing that
he was well, the medical department personnel returned his
badge/timecard, and May went back to work without incident.
(2) Current employee Raymond Olivera (vol. 7), a pipefitter,
testified that he injured his foot on the job; he went to the medi-
cal department where he was examined by Respondent’s doctor
who pronounced the foot to be broken and placed it in a cast.
For 3 months, Olivera reported to the medical department for
therapy, and he did not go to work. Only occasionally would he
call his foreman. Olivera was not disciplined when he returned
for work because he had not called in daily. (3) Alleged dis-
criminatee Chad Durocher (vol. 9) testified that, in 1992, he
broke his foot while he was not at work. Durocher did call the
electrical department office and reported the incident and that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1344
he would be out for 6 weeks. The clerk told him to go to the
medical department. Durocher went to the medical department
and presented his “doctor’s papers.” The medical department
personnel took his badge and told him to report back to the
medical department when he was released by his personal phy-
sician. Durocher did so; the medical department personnel re-
turned his badge and he went back to work. Aside from his
initial call, Durocher did not contact the electrical department
during his 6 weeks’ absence. (4) Respondent’s witnesses Har-
old Blanchard (vol. 73) is a mechanic in the steel control de-
partment. Blanchard testified on cross-examination that, at
some unspecified date, he had hand surgery. Blanchard testified
that he was out for “two or three weeks” without calling in to
his department every day. Blanchard was not asked how many
days that he did call in. Blanchard further testified that he went
to the medical department before and after his surgery and he
was not disciplined. (5) Finally as evidence of disparate treat-
ment of May, the General Counsel relies on the testimony by
alleged discriminatee Giles that he did not call in when he was
absent immediately after an accident on March 30. I have,
however, discredited that testimony by Giles, above.
May’s Discharge—Credibility Resolutions and Conclusions
May and Falgoust each testified that Murray asked them if
they had signed a union authorization card. Murray denied that
he interrogated May, but he did not deny interrogating Fal-
goust. The interrogation of Falgoust alone, was violative.
(Murray testified that he attended one instructional session that
was held by Respondent, but he did not testify that he was told
there not to interrogate employees.) I believe, and find, that
Murray interrogated both May and Falgoust by asking them if
they signed union authorization cards. I conclude that Respon-
dent, in violation of Section 8(a)(1), by Murray, on March 22,
1993, interrogated its employees about their union membership,
activities or desires.
As well as obtaining information from his unlawful interro-
gation of May, Murray was apprized of May’s prounion sympa-
thies by May’s wearing a union button, something that Murray
did not deny seeing. Also, although he denied that May told
him that he was a union supporter, Murray did not deny that he
knew, somehow, that May favored the selection of the Union as
the employees’ collective-bargaining representative. In cases
where Respondent was apparently confident of denials, it asked
supervisors who were involved in discharges for such denials.
(For example, Respondent asked Terry if he knew, or sus-
pected, that May favored the Union.) I find that Murray, the
supervisor who recommended May’s discharge, knew of May’s
prounion sympathies. Respondent’s animus toward employees
who favored the Union has been established throughout this
decision. Moreover, Murray individually interrogated May.
Therefore, I conclude that the General Counsel has presented a
prima facie case that May’s discharge was unlawfully moti-
vated, and the burden shifts to Respondent to demonstrate by a
preponderance of the evidence that it would have taken the
same actions against May even in the absence of his known
protected activities. Respondent’s defenses must therefore be
examined.
It is first to be noted that there is no probative evidence that
May actually hurt his back in any way on April 14. May did
testify that he hurt his back on the job on April 14, but his fol-
lowing conduct is inconsistent with that testimony. May testi-
fied that after his 1989 or 1990 on-the-job injury, “I went
straightaway to First Aid.” May was then treated by Respon-
dent’s in-house physician; therefore, May assuredly knew on
April 14 that help was immediately available in Respondent’s
medical department. May, however, did not seek treatment at
Respondent’s medical department on April 14, or anytime
thereafter. (May did not testify that, when he went to the medi-
cal department on April 23, he asked to be examined or
treated.) May’s knowing refusal to seek (free) treatment from
Respondent’s medical department arouses the first suspicion of
his claim of job-related injury. Also, May testified that he was
hurting enough to stay away from work on April 15, but he did
not go to the medical department on April 16; instead he
worked a full day without making complaint to any supervisor
in the electrical department. (Murray was absent on April 16,
but he assuredly had a substitute, and other supervisors were
also assuredly there.) Also on April 16, May made no com-
plaint to the medical department, something that obvious logic,
and his own history, would have compelled him to do if he had
actually been injured. How May could have been hurting so bad
on April 15, but could work a full day on April 16 (without
complaint to supervision or to the medical department) went
unexplained. May further testified that by Monday, April 19, he
suffered some sort of delayed reaction that kept him in pain,
and kept him from working through at least May 10 (when
Murray recommended May’s discharge). May did not, how-
ever, testify that his pain prevented his going to the medical
department, as well as the VA hospital, when the professed
delayed reaction started. May’s conduct, therefore, was not
consistent with his testimony that he was in so much pain that
he was prevented from working.
May also produced no documentation to corroborate his tes-
timony that he was injured on April 14. Alleged discriminatee
Giles, at least, produced two documents from a doctor stating
that something debilitating had happened to Giles. May, how-
ever, produced nothing but an April 15 request that he be ex-
cused from work on May 26.404 Back injury claims are notori-
ously easy to make. I am unwilling to accept May’s bare state-
ment that he injured his back on the job without at least some
documentary corroboration by an examining physician. In
summary, because of May’s conduct that was inconsistent with
his claim, and because of the lack of medicalcorroboration for
his claim, I do not believe, and do not credit, May’s self-
serving testimony that he suffered a debilitating back injury on
the job on April 14.
However, unless Murray knew that May was at least com-
plaining of some physical condition that prevented him from
working, there is no explanation for Murray’s recording May’s
absences from April 15 through May 7 as either “05” or “08.”
May testified that he told Murray that he had hurt himself on
April 14, but that Murray gave no glimmer of recognition. I
credit Murray’s testimony that he did not hear May state that he
had been injured, but it is nevertheless apparent that Murray
found out about May’s complaint by the next day. Again,
Murray would not have coded May’s April 15 absence as “05”
unless he did know of May’s claim. Murray testified that he did
not know of May’s claim until several weeks after May’s dis-
charge. Murray squarely contradicted himself on cross-

404 Also, the document that May produced is, on its face, entirely
suspicious. Medical doctors, in the experience of this trier of fact, are
diligent in placing “M.D.” after their names. The document that May
produced is signed “B. Combs.” May testified that Combs was a
“medical doctor,” but I do not believe it.
AVONDALE INDUSTRIES

1345
examination, however, by testifying that he did, and did not,
ask others on the job about the whereabouts of May. Murray
rendered himself incredible in the process. Moreover, in rebut-
tal Falgoust (vol. 158) credibly testified that “within a week”
after May was first absent, Murray asked Falgoust where May
was. Falgoust testified that he told Murray, “I guess he is still
out with his back injury.” Whether he did hear May on April
14, or whether he heard immediately from Falgoust or someone
else, it is clear by the records that he, himself, created that
Murray knew immediately that May was complaining of a
physical condition that prevented him from working.
The General Counsel contends that if Respondent’s employ-
ees are “out through First Aid” they have no duty call in, ever.
May did not testify that he did not call in because he thought he
was a beneficiary of such a policy. (Indeed, May gave no rea-
son for not calling in.) Assuming, however, that there was such
a policy, I would not find, absent the clearest evidence, that just
stopping by the medical department and reporting some symp-
toms, and then leaving without examination or treatment, estab-
lishes that an employee is “out through First Aid.” This is all
that May did. Moreover, May did not bother to stop by the
medical department until April 23, at which point he had
missed 5 consecutive workdays without calling in to the electri-
cal department as he knew he was required to do. (I reject
May’s self-serving testimony that he did not know of the call-in
requirement of the Avondale Employees’ Guide.) Moreover, on
April 23, May was given a written, categorical, instruction that
his stopping by the medical department was not sufficient; he
needed to call in to his superintendent’s office daily, at least as
far as the medical department was concerned. (I reject May’s
self-serving testimony that he did not read the document that he
signed on May 23.) From this instruction by the medical de-
partment, if nothing more, May knew that he needed to make
some contact with the electrical department. If the electrical
department supervisors wished to impose less than a daily call-
in requirement, it was up to them, not the medical department,
or May.
The General Counsel’s proffered evidence of disparate
treatment is unconvincing. May might not have called in after
his on-the-job injury in 1990, but he then went directly to the
medical department, and was examined and treated at that time.
The practice was for the medical department to notify the de-
partments when such happened. Conversely, in 1993, the elec-
trical department did not know where May was, or that he was
claiming to have suffered an on-the-job injury. Moreover, ex-
cept for the single case of Durocher, the General Counsel’s
purported examples of disparate treatment reflect that the em-
ployees were, or would have been, examined by the medical
department personnel; certainly the examples do not rule out
that possibility. Moreover, Durocher would have presented
himself to the medical department while wearing a cast, palpa-
ble evidence of actual injury. Also, Durocher presented the
medica department with his “doctor’s papers”; May, however,
did no such thing. (At most, May presented his department with
an appointment card from “B. Combs,” whoever he was.) Fi-
nally, the General Counsel relies on certain warning notices as
evidence of disparate treatment of May. This documentary
evidence (not previously discussed) is unpersuasive. May failed
to call in for many more days than all of the employees who
were issued the warning notices. That Murray listed only May’s
last 4 days of absences in his recommendation to Terry hardly
provides a shield for May’s derelictions.
Murray heard immediately from other employees that May
was complaining of a back injury. There is, however, no evi-
dence that Murray had heard that May was claiming that his
injury happened on the job. Murray had no duty to check with
the medical department under any circumstance, but he clearly
had no duty to check with the medical department when neither
May, nor anyone else, had told him that May was claiming that
his injury had occurred on the job. The reasonableness of Re-
spondent’s requirement that employees notify their departments
is not an issue. The requirement clearly exists, and there is no
probative evidence of disparate treatment. Like the case of
alleged discriminatee Giles, however, the circumstances of
May’s case demonstrate the reasonableness of Respondent’s
rule. As I have stated, I believe that May’s claim was spurious.
Of course, I could be wrong about that, but if May had timely
called in, the electrical department’s personnel undoubtedly
would have told May to go to the medical department, just as
the department’s personnel told alleged discriminatee Durocher
to go to the medical department when he called in and claimed
(truthfully) that he had suffered an injury. If May had followed
that assured instruction to go to the medical department, his
claim could have been timely examined and possibly verified,
one way or the other.
The General Counsel points to the fact that, until May 10,
Murray coded May’s absences as “05” or “08” on his MCRs.
The General Counsel argues that, because May’s individual
days of absences were excused, May was thereby excused in-
definitely from calling in to his department. In the first place,
however, May did not know how his absences were being re-
corded while he was not reporting for work. May could not
have been relying on the MCRs’ coding as an excuse for not
calling in, and he did not testify that he was. (Again, May did
not give any reason for not calling in.) More importantly, the
General Counsel’s position in this regard is an argument that
there is no such thing as an abuse of sick leave. Employees do,
in fact, abuse sick leave. Individual days of absence, even a
great number of them, may be excused, but there necessarily
comes a point that a supervisor must say, “enough is enough.”
Employers could not operate otherwise. It would not have been
unreasonable for Murray, and Terry, to have reached that point
on May 10.
Finally, the admission in Murray’s affidavit that employees
who are “out through First Aid” are not required to call in
“every day” is not an admission that employees may fail to call
in for more than 3 days even if they had not called in once.405
May, however, never called in. Specifically, May failed to call
in on May 5, 6, 7, and 10 and Murray then made his recom-
mendation to Terry. May had missed many days before May 10
without calling in, but, again, enough is enough.
For all of the above reasons, I find and conclude that Re-
spondent has shown that it would have discharged May even
absent his known union activities, and I shall recommend that
the allegations based on May’s discharge be dismissed.
c. Ronald Johnson’s termination as assumed to have quit
Ronald Johnson (vol. 8) was an outside sheet metal me-
chanic until he was discharged on July 27, 1993. The second
complaint, at paragraph 106, alleges that Johnson was dis-
charged in violation of Section 8(a)(3). The General Counsel

405 Even the injured Durocher called the electrical departmentoffice
once.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1346
contends that Respondent discharged Johnson because of his
known union activities and expressions of sympathy which
included his wearing prounion insignia. The General Counsel
further alleges that Johnson was threatened in violation of Sec-
tion 8(a)(1). Respondent denies that the threat occurred. Re-
spondent further answers that its supervisors had no knowledge
of any prounion sympathies that Johnson may have held before
his discharge. Respondent also answers that, as a sheet metal
mechanic, Johnson was required to possess certain personally
owned tools; Johnson did not secure even half of the required
tools, and, after a July 19 tool check, Johnson was suspended
and ordered not to come back until he secured a full comple-
ment of the tools; by July 27, Johnson had not returned, and he
had not called in to explain his absences; Johnson was therefore
terminated as assumedly having quit his employment. The
General Counsel replies that the defense asserted is a pretext
because, before the Union’s organizational attempt began, em-
ployees such as Johnson were allowed to borrow tools. Ulti-
mately, I find and conclude that Johnson’s discharge was law-
ful.
Johnson was hired in 1990 as a helper in the sheet metal de-
partment. On May 3, after some training classes that are de-
scribed below, he was promoted to sheet metal mechanic and
received a substantial pay increase. Johnson’s foreman was
Jesse Caston; his general foreman was Arthur Schloegel. John-
son testified that, after he was promoted from helper to me-
chanic, he began wearing union stickers on his hardhat and his
shirt “every day.” Johnson testified that Caston spoke against
the organizational attempt in meetings that Caston would con-
duct weekly with his crew of about 16 sheet metal mechanics.
According to Johnson:

Jessie used to tell us mostly about why he opposed the
Union, and he used to tell us like, “If the Union get in here
that they are just going to close the yard down.” And he
had mouths to feed and his—he used to say his wife
worked part-time at K-Mart, and that the Union just was .
. . there to collect dues . . . .
[In the Caston meetings] I used to ask him what made
him think that the Union was going to fold, that the yard
was going to close down. And he said that it always hap-
pened. . . .
[Caston] used . . . to say that, “Avondale don’t have
enough money to pay nobody; Avondale is broke.” . . .
And he said, “If the Union get in here, we are not go-
ing to be able to transfer you nowhere, and no other de-
partment.” Like, if the Union come there, we all got to
work in Sheet Metal Department. And he said, “If that
happens, we have to lay you off.”
[Caston] used to say, “If the Union come here, all they
going to do is padlock the gates, and then you will have
nowhere to work, because . . . Louisiana is not a union
state.”
And Bayou Steel had a strike during that time, and he
[Caston] used to bring in these pamphlets, usually the pa-
pers or the newspaper, and tell us we are going to be just
like Bayou Steel; we are going to be out there on the gate
striking, and all [that] Avondale [is] going to do is hire
new people. . . .
[H]e used to say, “If you are not happy here, why don’t
you go get a job somewhere else? Why make it hard for
other people?”

Johnson further testified that Caston would say such things at
“[t]he majority” of weekly meetings that Caston conducted late
in the campaign before the June 25 Board election. Based on
this testimony by Johnson, paragraph 11 of the second com-
plaint alleges that “about March 18 and 23,” Respondent, by
Caston, “(a) informed its employees that it would be futile for
them to select the Union as their bargaining representative; and
(b) threatened its employees with plant closure if they selected
the Union as their bargaining representative.”
Johnson’s Discharge
As mentioned in the case of Dwight Ballard, supra, sheet
metal mechanics are issued, from time to time, “tool lists.” On
direct examination, Johnson was shown a document that he
identified by stating: “That is a list of the tools that we had to
have to work with.”
Johnson and Leonard Mutz, a fellow helper, began some
training classes on December 15, 1992. The classes were con-
ducted by Caston. Johnson acknowledged that during the
course, Caston told him and Mutz that they were required to
purchase their own hand tools. Johnson finished the classes,
and passed an examination, on February 19. (Mutz passed the
test a few weeks before.) Caston issued to Johnson and Mutz
sets of “loaner” tools to use during a 2-month “probation pe-
riod,” as Johnson called it. Johnson and Mutz asked if they
could buy their own tools from the Company through a payroll
deduction procedure. Caston told them that he “would check”
and get back with them. Caston told Johnson and Mutz that the
tools would cost $300. On May 25, Caston retrieved the loaner
tools from Mutz and Johnson. Johnson then asked Caston again
if a payroll-deduction procedure was available for the purchase
of tools, and Caston again told Johnson that he would check.
Thereafter, according to Johnson, he and Mutz borrowed tools
that they did not own from Leadman Clarence Brooks.
Johnson testified that “about two weeks before” the June 25
Board election, Caston told his crew that there would be a tool
check on July 19, and all sheet metal mechanics must have all
of the tools on the tool list. Caston did not tell them, however,
what would happen if they did not have all of their tools. John-
son testified that, during the 3 years that he had been in the
sheet metal department, there never before had been a tool
check.
Johnson further testified that early on July 19, “Mr. Brooks
came and got his tools.” Johnson and Mutz, together, were
subsequently called to the office of General Foreman
Schloegel. Caston was there to assist Schloegel in the tool
checks. According to Johnson:

Well, they started checking our tools, and he already
knew I didn’t have all my tools. But when they checked
mine, Mr. Schloegel, he mentioned to me, “Well, we are
going to send you home. . . . When you get all your tools,
just call Jessie’s office back, and he will put you back to
work.”

Mutz also did not have all of his tools, and he was also sus-
pended by Schloegel. Johnson further testified that, before he
left the premises on July 19, he told Caston that he would not
be able to buy the tools because, while on suspension, he would
not be earning any money. Caston replied that the matter was
“out of his hands,” according to Johnson.
Johnson testified that he had purchased all of the tools on the
tool list by July 27. On that date, he called Caston’s office, as
AVONDALE INDUSTRIES

1347
Schloegel had instructed. Johnson did not reach Caston, but he
did talk to Brooks. Brooks told Johnson that he (Johnson) had
been discharged just that morning. Johnson tried twice to reach
Schloegel by telephone, but he was told that Schloegel was
unavailable. On cross-examination, however, Johnson ac-
knowledged that his pretrial affidavit recites that it was “about
two and a half weeks after I was sent out” (or suspended) be-
fore he called in to report that he had acquired all of the tools.
Johnson testified that the affidavit was in error, even though,
obviously, the affidavit was taken much closer in time to the
events in question.
Johnson’s Discharge—Respondent’s Evidence
Mutz (vol. 121) testified that during the training course, he
and Johnson were given copies of the tool list and told that they
must acquire their own tools. After he and Johnson finished the
training course, they were given boxes of loaner tools by Cas-
ton and told again: “You need to acquire your own tools.” Mutz
purchased the tools “piece by piece.” When he and Johnson
returned their loaner tools to Caston, they were again told to
acquire all of the tools on the tool list. On the day of the tool
check, Mutz was missing a set of wrenches. Schloegel told him:
“You don’t have your proper tools. . . .[G]o home and get your
tools and come back to work.” Mutz testified that he left the
premises and returned the next workday with the wrenches, and
he went back to work without further incident.
Caston (vol. 116) identified a letter to the training course’s
participants. The letter, dated December 15, 1992, told the em-
ployees that, in addition to the course, they would be required
to have “2 months of job experience” before they would be
upgraded to mechanics. Caston testified that he told the sheet
metal department employees that, as well as the ability to read
blueprints (which was the principal subject of the course), they
must have a full set of tools before they would be upgraded
from helpers to mechanics. On February 19, Johnson finished
the course and took an examination. After passing the examina-
tion, Johnson was issued the set of loaner tools (in a loaned
toolbox) by Caston. Caston told Johnson that they could be
used by him during the 2 month’s “training period,” but John-
son then must return them. Caston then “suggested” to Johnson
that he start purchasing his own tools.
After the 2-month period ended, and after Johnson and Mutz
were upgraded to sheet metal mechanics on May 3, Caston and
Schloegel still did not ask them to return the loaner tools. Cas-
ton testified, “[W]e figured we were going to let them use the
boxes as long as possible.” On May 25, Schloegel told Caston
to collect the loaner tools from Mutz and Johnson “so they
could be turned back in to the sheet metal shop,” according to
Caston. Caston collected the loaner tools and told Mutz and
Johnson to get their own tools. Mutz asked if he could buy the
loaner tools; Caston told Mutz that the loaner tools were not for
sale, but all the tools could be purchased at the Company’s
safety store. Johnson did not ask how he could buy the tools,
according to Caston. At the time, Johnson did have some other
tools with which he could work; Johnson had borrowed those
from another employee. Caston allowed Johnson to continue to
borrow tools.
Caston testified that during June the sheet metal department
supervisors discussed at their meetings that too many employ-
ees were borrowing tools. At a supervisors’ meeting of June 29
(which was the first Tuesday following the Friday, June 25,
Board election) Schloegel announced that there would be a tool
check on the following Tuesday, July 6. Caston testified that he
prevailed upon Schloegel to delay the tool check for two pay
periods to “give them a chance to buy the tools that they need
without putting a strain on their budget, their home budgets.”
Within 2 days, further according to Caston, he held a safety
meeting for his crew that including Johnson. He announced a
tool check for July 13 and, “I told them that Arthur Schloegel
said that . . . with this tool check, anybody not having their
tools would be sent home [i.e., suspended] to get their tools.”
Before July 13 arrived, Caston and the other foremen again
prevailed on Schloegel, and the employees were given an addi-
tional pay period to secure full complements of tools. The final
date for the tool check was set at July 19. In the meantime,
further according to Caston, he again told his crew, “an em-
ployee not having his tools would be sent home to get tools or
until his tools are replaced, until he brought his tools, and it
wasn’t something they should take lightly.”
On Monday, July 19, Schloegel met with each of the four
supervisors under him; the supervisors were to bring their em-
ployees to him, and the employees were to bring their tools. As
well as Mutz and Johnson, employee Earl Barnett was found to
be without a full complement of tools. Barnett, as well as John-
son and Mutz, was told that he would have to leave until he
acquired all of the tools. Barnett left and returned 4 days’ later
with all the tools, and he was put back to work. (Barnett had
accumulated vacation time, and he was allowed to use that for
the 4 days.)
Johnson did not reappear at work, with or without his tools.
On Thursday, July 22, Caston attempted to call Johnson at his
home, but there was no answer. Caston called Johnson’s mother
(who was also an employee) and asked her to ask Johnson to
call him. Later on July 22, Johnson did call Caston. According
to Caston:

[H]e asked me what was up, and I told him that he was
in the process of getting ready to lose his job because of
his consecutive absentees [sic]. . . .
He said that he didn’t have his tools yet, and he didn’t
have the money to get them.
So I told him that he is going to have to do something.
So I suggested to him that he would come to work Friday
morning without the tools, and I was going to have to send
him back home because he didn’t have the tools, but it
wouldn’t count as an absentee, to try to break up that con-
secutiveness [i.e., Johnson’s series of consecutive ab-
sences] that he was undergoing. . . .
He said he would see what he could do.

Caston testified that he suggested this to Johnson in order to
“[t]ry and keep him from being terminated.”
Johnson did not report to work on Friday, July 23, as Caston
had suggested. On Tuesday, July 27, further according to Cas-
ton, Caston conferred with Schloegel, and they agreed that
Johnson had voluntarily quit because he had failed to appear for
work for 6 consecutive workdays (and Johnson’s only call-in
was when Caston had called him). Johnson’s discharge papers
were then prepared. Later the same day, further according to
Caston, Johnson called and said that he “heard” that he was
being terminated. Caston responded that he and Schloegel had
“assumed him quit.” Caston further testified that he asked
Johnson if he had acquired his tools; Johnson testified that he
had not because “he was still having financial problems.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1348
Finally on direct examination, Caston testified that, at em-
ployer campaign meetings, he did tell employees that wages
were even lower for other jobs that were available in the area.
Caston, however, denied that he told the employees that Re-
spondent would be “closed down” or would “padlock the
gates,” as Johnson had testified. Caston did not deny Johnson’s
testimony that he told employees that they would not be able to
transfer between jobs, and would be laid off, if the Union was
selected as their collective-bargaining representative. Caston
further did not deny Johnson’s testimony that he told his crew
that, if the Union was selected, the employees would have to
strike, “just like Bayou Steel,” and that Respondent would “hire
new people” to replace them.
Johnson’s Discharge—Credibility Resolutions
and Conclusions
Schloegel (vol. 134) and Caston denied that Johnson wore
prounion insignia on his hardhat and shirt, but I found Johnson
credible on the point. I find that, because of Johnson’s open
display of prounion insignia, Respondent’s supervisors who
had worked around him had knowledge of Johnson’s prounion
sympathies at the time that he was suspended and discharged.
Animus toward Respondent’s employees who favored the Un-
ion, and especially those who wore prounion insignia, is estab-
lished throughout this decision. Therefore, I conclude that the
General Counsel has established a prima facie case that John-
son was unlawfully discharged, and the burden shifts to Re-
spondent to demonstrate by a preponderance of the evidence
that it would have taken the same actions against Johnson even
in the absence of his known protected activities. Respondent’s
defenses must therefore be examined.
Caston was a far more credible witness than Johnson in re-
spect to the facts surrounding the discharge. Johnson was espe-
cially incredible in his testimony that he just happened to se-
cure all of the tools by July 27 and it was on that day that he
called in and found out that he had been discharged. As well as
being too convenient for belief, Johnson squarely conflicted
with his affidavit that stated that it was a full 2-1/2 weeks after
his suspension of July 19 that he acquired all of the tools. I
believe, and credit, Caston’s testimony that on July 27 Johnson
admitted that he still did not have all of the tools.
In the training that was conducted by Caston, Johnson was
told that, upon becoming a mechanic, he would be required to
own the tools on the tool list. (Requirements of personally
owned tools is, of course, common in the construction indus-
try.) Johnson accepted the pay increase that came with being
promoted to a sheet metal mechanic’s position, but Johnson did
not purchase the tools that mechanics were required to own. It
is evident that Johnson decided to unilaterally establish as a
term and condition of his employment as a mechanic the right
to borrow tools forever. There is no valid argument that Re-
spondent should have allowed him to do so. Moreover, before
the tool check, Caston told Johnson that he would be suspended
if he did not have the tools. Johnson, however, did nothing
about it except complain that he could not afford them. Mutz,
on the other hand, purchased the tools one at a time (except for
one set of wrenches). Except self-serving arguments that I do
not accept, there is no argument that Johnson could not have
done the same thing. (That Caston did not tell Johnson exactly
how to purchase tools through payroll deductions is no answer
for the General Counsel; if Johnson had wanted to purchase the
tools through the safety store, through deductions or otherwise,
he could have gone there and gotten the process started.)
The General Counsel argues that Johnson was treated dispar-
ately because Johnson was suspended for not having his per-
sonally owned tools but many other employees were issued
warning notices for the same offense. The General Counsel did
not show, however, that those other employees were only is-
sued warning notices; suspensions were entirely possible in all
cases that the General Counsel offers as comparisons to the
treatment of Johnson. Moreover, there is no indication that the
other employees had received categorical warnings such as
those that Johnson had received before he was suspended. Even
if there were some evidence of disparate treatment for the sus-
pension, however, Johnson was not discharged for not having
his tools. Johnson was discharged for not coming to work on 6
successive workdays and presumably quitting his employment.
The General Counsel further argues that Johnson was treated
disparately because, before the Board election, he was allowed
to use Respondent’s loaner tools or borrow tools from other
employees. Departmentwide tool checks had not been con-
ducted before the Board election, and the fact that this one was
announced during the week following the election does raise a
suspicion that the tool check was an act of recrimination against
the employees for the support that they had given to the Union
in the Board election. Nevertheless, the requirement of person-
ally owned tools previously existed, and the great deal of notice
that Respondent gave to all of the sheet metal mechanics to
comply with the requirement negates any inference of recrimi-
nation. That is, Respondent gave the sheet metal mechanic
three pay periods to secure the tools; if recrimination were Re-
spondent’s objective, it would not have afforded the sheet metal
mechanic such a great opportunity to pass the July 19 tool
check.406 Also, “loaner” tools were just that; they were loaned;
Respondent had not given the tools to Johnson, and Johnson
knew it. Respondent did allow Johnson to borrow from other
employees for a while, but, again, there is no legitimate argu-
ment that Respondent should have allowed such borrowing to
go on forever. (Any such argument would be an argument that
Respondent should simply furnish all hand tools to all mechan-
ics.) Therefore, even accepting all of Johnson’s testimony, and
further assuming that the suspension was alleged as a separate
violation of Section 8(a)(3), I would not find a violation in
Respondent’s actions in that regard.
Finally, if Johnson could not have afforded the tools, he still
could have reported to work on July 23, as Caston suggested to
Johnson on July 22. Instead, Johnson continued to refuse to
come to work. After he had done that for 6 consecutive work-
days, his supervisors decided to terminate him as an employee
who had voluntarily quit. The General Counsel does not con-
tend that any other employee was permitted to refuse to report
for work for as many as 6 workdays without being discharged. I
therefore find that Respondent has shown that it would have
discharged Johnson even absent his protected activities, and I
conclude that Respondent did not violate Section 8(a)(3) by
discharging Johnson.
Finally, Caston credibly denied that he told the employees
that Respondent would be “closed down” or would “padlock

406 This situation is to be contrasted, of course, from those of dis-
criminatees Ballard and Valentine who were initially given a period of
time to secure the tools (which period included a payday) by their
foremen, but Schloegel then cut that period short.
AVONDALE INDUSTRIES

1349
the gates” if the employees selected the Union as their collec-
tive-bargaining representative. I shall therefore recommend
dismissal of that allegation of the complaint. Caston, however,
did not deny Johnson’s testimony that he told employees that,
in slack periods, they would not be able to transfer between
departments, and would be laid off, if the Union was selected.
Caston further did not deny Johnson’s testimony that Caston
told his crew that, if the Union was selected, the employees
would have to strike, “just like Bayou Steel,” and that Respon-
dent would “hire new people” to replace them. At minimum,
these remarks were threats to the employees that their efforts to
achieve collective bargaining would be futile, as further al-
leged. I therefore conclude that, in violation of Section 8(a)(1),
Respondent, by Caston, in the spring of 1993, warned its em-
ployees that their efforts to secure collective bargaining would
be futile.
8. Employees discharged for various other reasons
a. Ramona Edwards’ discharge for theft
Ramona Edwards (vols. 17, 148, 159) was a clerk in the ma-
chinery department office until she was discharged on June 28,
1993. The second complaint, at paragraph 87, alleges that by
discharging Edwards Respondent violated Section 8(a)(3). The
General Counsel contends that Respondent discharged Edwards
because of her known union activities and expressions of sym-
pathy which included her making a prounion comment to the
superintendent of the machinery department during November
1992 and, after the Union’s handbilling began in March 1993,
wearing prounion insignia and making favorable comments
about the organizational effort at an employer campaign meet-
ing. The General Counsel further alleges that, in violation of
Section 8(a)(1), Edwards was threatened several times and
interrogated once. Respondent denies that the threats and inter-
rogation occurred. Respondent further answers that its supervi-
sors had no knowledge of any prounion sympathies that Ed-
wards may have held before her discharge. Respondent further
answers that Edwards was discharged solely because its super-
visors knew, or reasonably believed, that Edwards had commit-
ted an act of theft. Respondent specifically contends that Ed-
wards orally, and in writing, confessed to the theft. The General
Counsel replies that the theft defense is a pretext because Ed-
wards did not commit the theft and that Respondent had no
reason to believe that she did. The General Counsel further
replies that Edwards made no oral confession of theft; the Gen-
eral Counsel concedes that Edwards signed a written confession
of theft, but the General Counsel contends that Edwards could
not have read the confession because Edwards is illiterate. Ul-
timately, I find and conclude that Edwards engaged in no
prounion activities but, assuming that a prima facie case has
been presented, Respondent has shown that it would have dis-
charged Edwards even absent any prounion sympathies that she
might have held. I therefore recommend dismissal of the allega-
tions made on behalf of Edwards.
Edwards’ testimony as a witness for the General Counsel’s
case in chief consumes 184 pages of the transcript; probably
half of those pages (I have not actually counted) were con-
sumed in the General Counsel’s attempt to establish, and Re-
spondent’s attempt to refute, the proposition that Edwards is
illiterate, even though she has a high school diploma and even
though she had been employed as a clerk. Edwards’ testimony
as Respondent’s adverse witness consumed another 28 pages,
all on the same topic. I allowed Respondent to make every
conceivable inquiry of Edwards about how she managed to go
through life, much less serve as a clerical employee, without
the ability to read. I further afforded great latitude to counsel
for the General Counsel and counsel for Charging Party in redi-
rect examination. The exercise was necessarily humiliating to
Edwards, but she withstood it well. Every avenue of attack was
answered by Edwards, many times in anguished explanations. I
shall not detail those attacks and responses; it suffices to say
that I credit Edwards’ explanations. Respondent further called
other witnesses to testify that Edwards had done things that
would indicate that she could, in fact, read. To the extent that
testimony was credible, it was probative of nothing; the re-
mainder of the testimony offered by Respondent was not credi-
ble when compared with the testimony of Edwards on the point.
I find that, except for the ability to read and write her own
name, and the ability to recognize some numbers and individual
letters,407 Edwards could not have possibly read a confession of
theft that she signed on June 24. (For the reasons stated below,
however, I do find that the confession was read to Edwards, and
she knew its import.)
At the time of her discharge, Edwards worked in the office
of Jake Kaul, superintendent of the machinery department.
Kaul succeeded Ken Genter as the departmental superintendent
in April 1993 when Genter became a vice president. As noted
in the Wright Line discussion that introduced the 8(a)(3) section
of this decision, Edwards testified that in November 1992 she
told Genter that the employees needed the Union and Genter
replied that she could be discharged for saying that. As I stated
in that discussion, that testimony was undenied, I found it
credible, and I consider it strong evidence of Respondent’s
animus toward those employees who would exert their Section
7 rights to organize and bargain collectively. The General
Counsel argues that the statement is further evidence that Re-
spondent would have at least suspected that Edwards main-
tained prounion sympathies.
Edwards testified that from about April until the date of her
discharge, she wore union pins at work and talked in favor of
the Union to other employees. At the time of the events in ques-
tion, the machine shop had two foremen, Nicola Betanoff and
Steve Truxillo. Edwards testified that in late April or early
May, when she was in the machinery department office with
Truxillo:

Steve Truxillo walked in the office, and he asked me,
“What you doing, girl?”
And I replied, “Nothing.” As I answered him, I began
to turn and straighten up from behind my desk.
I had a union pin on the right top-hand side of my
shoulder, and he grabbed it. I said, “Ouch; you stuck me.”
He say, “Don’t you know this is grounds for automatic
dismissal; don’t you know this is grounds for dismissal.”
I said, “No, I did not.”
He said, “Your union activities are getting to be a bit
too much; when are you going to leave off.” He took my
pin, and he bent it. He threw it on the floor. He smushed it
with his heel of his boot and threw it in the trash can.

Based on this testimony by Edwards, paragraph 15 of the sec-
ond complaint alleges that Respondent, by Truxillo, “threatened

407 For example, Supervisor Wirley Parks has a simple last name;
however, a notation that Edwards once made, with deliberation appar-
ent, is spelled “PRAK.” Anyone with a minimal concepts of phonetics
would not have spelled the name that way.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1350
its employees with discharge if they continued to wear union
insignia.”
Edwards further testified that, about the first part of May,
Truxillo conducted an employer campaign meeting and:

Mr. Steve Truxillo sit down, and he said that if . . . the
Union would get in, that the workers would lose their jobs
. . . the Union would let the workers go out on strike.
Avondale would not be able to compete, and then the peo-
ple would lose their jobs. “If you vote for the Union, you
lose. Do I have to spell it out for you? . . .”
I raised my hand. He said, “Okay, Ramona; what do
you want to say?”
I said, “Well, Avondale haven’t done anything for us;
we have given them a try; why not give the Union a try.”
And he said, “Well, Ramona, if the Union come in,
you will be out of here in a second.”
And I told him, “Well, that is just a chance I have to
take. . . .”

Based on this testimony by Edwards, paragraph 18 of the sec-
ond complaint alleges that Respondent, by Truxillo, “threatened
its employees with discharge and plant closure if they selected
the Union as their bargaining representative.” Edwards further
testified that, immediately after Truxillo’s meeting, she met in
an office with Truxillo, Betanoff and employee Chester Con-
stant. According to Edwards:

Steve [Truxillo] told Nick [Betanoff], “Do you know
what this ass hole, excuse my French—referring to me—
said in the meeting. She was talking up for the Union.”
And Nick Betanoff said, “Ramona, I thought you were
my friend. Next time they have a meeting, you do what
you do best, sit down and look pretty, with your mouth
shut.”

The General Counsel argues this remark by Betanoff demon-
strates specific animus against the union activities of Edwards.
Edwards further testified that in the latter part of May she
was in the machinery department office when employee Ches-
ter Constant asked to read a handbill that she had in her posses-
sion.408 Further according to Edwards:

And at the time [Constant] was reading it, Mr. Betan-
off came in. And [Betanoff] asked [Constant], where did
he get the literature he was reading. And [Constant] said,
“I got it from Ramona.”
So [Betanoff] looked at it, and he said, “Ramona, do
you believe this stuff.”
And I told him, “Half of it; half of it, I don’t know.
. . .”
[Betanoff] said, “Do you know what happened if the
Union came in?”
I said, “No, sir, but you don’t either.”
And he said, “If the Union came in, you would be out
of a job in a minute.”
And I said, “Well, that is just the chance I have to
take.”
And that is when I told him, “Rosie Parks and Martin
Luther King, if they hadn’t stood for our rights, we

408 Edwards testified that she took the handbills at the gate, but that
she did not know what they said until she took them home for her fam-
ily to read to her.
wouldn’t have any; and . . . regardless to what you state, I
am voting for the Union.”
And he said, “Ramona, you are dumber than what I
thought.”
And I said, “Well, if you say so, but I am still voting
for the Union.”

Based on this testimony by Edwards, paragraph 37 of the sec-
ond complaint alleges that Respondent, by Betanoff, “threat-
ened its employees with discharge if they selected the Union as
their bargaining representative.” the General Counsel further
contends that the exchange with Betanoff is additional specific
evidence that Respondent knew that Edwards intended to vote
for the Union in the June 25 Board election.
Edwards further testified that in late May or early June, she
was approached by Kaul and:

[w]ell, he basically asked me, did I post anything or pinned
anything over the timeclock. And I said, “No, sir.” And he
said, “Well, never mind; don’t worry about it.”

Edwards testified that Kaul left the area and:

Mr. Steve Truxillo came over to my desk, and he told
me, “You know you did it; just admit it; you know you did
it.”
And I asked him, “Did what?”
And that is when [employee] Dennis Rapp came, and
he say, “Yes, we both know you did it too.”
And Steve said, “Yes, I know you did it, because I
took a union pin from you; that is how we know you did it;
just admit that you put that over the timeclock.”
And I told them, “I don’t know what you are talking
about.”
And he said, “Yes, we both know that you put that un-
ion stuff up there; why don’t you just admit it and get it
over with.”

Based on this testimony by Edwards, paragraph 34 of the sec-
ond complaint alleges that Respondent, by Kaul, “interrogated
its employees about their union membership, activities and
sympathies.”
Discharge of Edwards
Respondent’s machinery department office is located near
gate 11, an interior gate that is used for pedestrian traffic only.
There is a guard’s shack at gate 11. Immediately outside the
gate is a parking area. In the parking area, close to the guard’s
shack, is a building in which cleaning supplies are stored (the
porter’s shack). Edwards regularly parked just outside the gate,
and she did so on June 24, the day before the Board election.
Edwards testified that her automobile has controls in the pas-
senger compartment with which the trunk can be unlocked; she
further testified that those controls can be reached by someone
standing outside the automobile when the driver’s side window
is open. Edwards further testified that she usually left her auto-
mobile’s windows open on warm days when it appeared that
there would be no rain. For at least part of the day on June 24,
she left her automobile windows open. The General Counsel
contends that, during that day, someone opened Edwards’ trunk
and “planted” stolen cleaning items in it. (The items included
garbage bags, cleanser, polish, and the like.)
Edwards testified that she moved from one house to another
in August. On June 24, in preparation for that move, she took
some un-flattened cardboard boxes from one of Respondent’s
AVONDALE INDUSTRIES

1351
dumpsters and dragged the boxes, some inside others, to gate
11. There a guard, whom she could not name, carefully in-
spected each box. (Other than discarded items such as the
boxes, Respondent’s guards are required to check items that
employees carry out of the gates against property passes or
other paperwork.) According to Edwards:

And he told me, “You can’t get them in there [her
automobile] like that.”
I said, “Well, do you know a better way”
He said, “Yes, if you will flatten them.”
And I said, “Well, I don’t know how to do that.”
He said, “Well, let me show you.” So he came to the
car; he took a pocket knife out of his pocket. He slit the
boxes, and then he flattened them.
I opened the back seat for him, and he put the boxes on
the back seat, and he shut the door, and I told him, I said,
“Thank you very much.”

Edwards testified that neither she nor the guard opened her
trunk.
Edwards testified that, during the afternoon of June 24, she
received a telephone call from Respondent’s assistant director
of security, Sam Capaci. Edwards testified that Capaci “asked
me, could I come to my car; he was at Gate 11, because he had
received a phone call saying that I had put something in the
trunk of my car.” Further according to Edwards:

I went outside to Gate 11, and I met him, and he [Ca-
paci] told me, “Ramona, I have received a phone call, say-
ing that you put something in the trunk of your car.”
I said, “No, sir. I put something in the back seat but not
in the trunk.”
He said, “Well, can you open the car?”
I said, “Well, sure.”And I went over to the driver’s
side, and I popped the lock. When I went over to the
driver’s side and popped the lock, I went on the back seat,
and I pulled the boxes off that I had, and I showed him. I
said, “This is all I have.”
So after I showed him that, he said, “Well, open the
trunk.” So I shut the back door; I went back on the front. I
popped the lock for the trunk to open, and he pulled out
my box with my car stuff, windshield wiper stuff and oil
and stuff. . . .
Then they [sic] had another box [that Capaci] pulled
that was behind it, and he showed it to me. . . . I saw a
clear-looking garbage bag; looked like some cleanser,
some kind of paper, and cleaning stuff . . .
I said, “I have never seen that box, and I didn’t put it in
there.”
So he asked me to get in his truck, and he brought the
box and put the box in his truck, and we drove around to
Gate 5 to his office and went upstairs in his office.

(As mentioned in other cases, Respondent’s security depart-
ment offices are located at a building at gate 5.) Edwards testi-
fied that in the security department office she again told Capaci
that she had not taken the materials and that she had no idea
how they had gotten into her automobile’s trunk. Further ac-
cording to Edwards:

While we were in his office, he asked me, did I have
anyone—did I know of anyone that had a vendetta against
me, and I said, “Not that I can think of.”
[Capaci] said, “Well, Ramona, I believe that you didn’t
do this; you are a good worker, and I have been working
with you a long time, and we have never had any prob-
lems. And I am just trying to help you. Are you sure you
don’t know of anyone that would do this.”
I said, “No, sir.”
He called the security guard, and the guy came in the
office, and he asked the guy, did I bring anything to my
car. The guy said, “Just some boxes,” which he had flat-
tened for me and put in the car for me. [Capaci] said,
“That is all?”
[The guard] said, “That is all she put. She didn’t have
anything else; everything she came out with, he had
checked prior, before it was in the car, which was the flat
boxes.” . . .
So [Capaci] asked [the guard], “Are you sure she
didn’t have anything else?”
He said, “No; just those boxes that I flattened for her
and put them on the back seat.”
[Capaci] said, “Okay.” So [the guard] left out.
Mr. Capaci . . . said, “Ramona, I don’t know how this
is going to go for you, he said, but I will see what all I can
do.”
So after that, I said, “Well, can I vote tomorrow.”
He said, “Yes, you can vote. Just come in to my office
if I am here, and I will give you your badge. And if I am
not here, see Maureen or Marc,” which is [i.e., which em-
ployees are] in Security at Gate 5, “and they will give you
your badge in order for you to vote.”
I said, “Yes, because it is important for me to vote.”
He said, “Yes, it is important for the Union not to get
in.”
And I told him, “I am sorry, but I am for the Union. I
think it is best for them to get in.”
And he said, “That is not going to help your job any.”
I said, “Well, I still think it is important, because
Avondale isn’t doing anything for us.”
And he said, “Well, I am sorry you feel that way; that
is not going to help your job any.” And [Capaci said,]
“Give me a call tomorrow.”

At some point during the time that she was in Capaci’s office
on June 24, Edwards signed what Respondent contends is a
written confession that she stole the items that Capaci found in
the trunk of her automobile. On direct examination, Edwards
was handed the document in question, General Counsel’s Ex-
hibit 103, and she was asked and she testified:

Q. Do you recall when you were with Mr. Capaci, Mr.
Capaci writing anything?
A. Yes, ma’am.
Q. Does this look similar to what Mr. Capaci was writ-
ing?
A. I don’t know. All I know is when he was writing, I
asked him what he was writing, and he told me he was just
writing something that was normal formality. And I said,
“Because I can’t read.” And he said, “Well, there is noth-
ing for you to worry about.” So I don’t know what he was
writing. I just know he was writing.
Q. Prior to signing the General Counsel’s 103, what
did you know about what it said?
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1352
A. I didn’t know. He told me to sign a paper that he
gave me. And when I asked him, what was it, he told me
“It is nothing for you to worry about.”
I said, “Well, I can’t read, so I don’t know what it is.”
He said, “Well, it is not an admission of guilt. It is just
a normal formality for me to help you get your job back.
Don’t worry about it; just go on and sign it.”
And I said, “Okay.”

Edwards then placed her signature at the bottom of the exhibit.
Edwards flatly denied that Capaci read the exhibit to her be-
fore she signed it. She did not, on the other hand, testify that
she asked Capaci what the document said or what the “normal
formality” was. The statement is 1-1/2 pages long. It is intro-
duced with some boilerplate that indicates that the statement is
made voluntarily. The remainder of the statement is in a ques-
tion-and-answer format; it concludes with:

Q. Did anything unusual happen while you were at
work on 6/24/93?
A. Yes. At about 1:00 p.m. I walked out of the porter
shop which is located in the parking lot area outside of
Gate 11 with a box of house cleaning supplies & placed
the box inside my vehicle which was parked in the engi-
neering parking lot. The box contained plastic bags, two
cans of air freshener, two cans of furniture polish, two
cans of Comet cleanser, three bottles of toilet bowl
cleaner, two bottles of Ajax cleaner, & three cans of carpet
cleanser. I know that I stole this property from Avondale
and that theft is against company policy and that I could be
terminated.
Q. Who gave you the property?
A. The employee who drives the porter truck. His
name is Marc Boudreaux, Clock #5522.
Q. Have you stolen any other property from Avondale?
A. No.
Q. Do you have anything to add or to delete from this
statement?
A. No. I told the truth.

Edwards admitted signing some document while in Capaci’s
office, and she acknowledged her signature on the exhibit. Ed-
wards denied, however, that she knew what she was signing,
again, because she is illiterate. Edwards further denied receiv-
ing the cleaning materials outside Respondent’s gate, or any-
where else.
The next day, Edwards appeared at the plant, was cleared
through the security department, and went to vote at the Board
election. According to the hearing officer’s report in the repre-
sentation case, Edwards’ vote was challenged by the Union; the
basis of the Union’s challenge was that Edwards was an office
clerical employee, not a production or maintenance employee.
Although Edwards testified that Capaci told her to “give me
a call tomorrow,” which would have been June 25, she did not
testify that she did so. Edwards may have thought that Capaci
meant the next workday, Monday, June 28, but she did not
testify that she called Capaci then, either. In fact, Edwards did
not testify at what point, if ever, she was told that she had been
discharged. (As will be seen, Capaci testified that Edwards
called him on June 28; he asked her to come to the premises;
she did so; and it was then that he told Edwards that she was
discharged for theft.)
An indicator of Edwards’ credibility appeared in her testi-
mony about how many trips she made from the machinery de-
partment office to her automobile on June 24. On direct exami-
nation Edwards testified that, before Capaci called her and
asked her to meet him at gate 11, she had made one trip from
the machinery department office to her automobile. On cross-
examination, however, Edwards testified that she had made two
trips to her automobile before the call from Capaci. The direct
examination on the point was:

Q. The afternoon that you put the boxes in your car,
the afternoon that they alleged that you stole the cleaning
stuff, how many times did you go to your car that day?
A. I went when I put the empty boxes—you know, to
go put the empty boxes in, and I went when Mr. Capaci
called me. So two times.
Q. Did you make any trips other than those two trips?
A. I went when I let the windows down, you know,
which was the same time that I put the boxes in.409
Q. So you let the windows down, you went out with
Mr. Capaci, and you went home that day. Other than those
three trips, did you make any other trips to your car that
day?
A. No.

The cross-examination of Edwards, however, included:

Q. And you testified that you made—well, again, what
were the three trips that you made?
A. One was to let the windows down, to decrease the
heat. The second one was when the guard put the boxes in
the car for me. The third one was when I met Mr. Capaci.
Q. And which of those three trips did you bring the
boxes?
A. The second one.
Q. And that was when you went out to let your win-
dows down. Is that correct?
A. No, sir. I let the windows down first. I made three
trips. The first one was to let the windows down. The sec-
ond one is when I brought the boxes, and the guard put
them in the car. The third one was when Mr. Capaci called
me and asked me to meet him at the car.

After Edwards essentially repeated the last answer during fur-
ther cross-examination, she was asked and she testified:

Q. What time of the morning did you go over—or
what time did you go and put your windows down on your
car?
A. It was after lunch.
Q. Was anybody with you during that time?
A. No, sir.
Q. Did you see the guard at his gate during that time?
A. Yes, sir. He was there.
Q. What time of day did you go put the boxes in your
car?
A. Right before 1:00 o’clock.
Q. How much time was there between you going out to
roll your windows down and bringing the boxes to your
car?
A. About maybe 20, 25 minutes.
Q. And what time, if you can recall, did Mr. Capaci
call you?

409 As previously noted, Edwards testified that on warm days that did
not threaten rain, she made midday trips to her auto to open the win-
dows.
AVONDALE INDUSTRIES

1353
A. He called between 1:00 and 1:30, looked like.

That is, Edwards testified twice on direct examination that she
made only one trip to her automobile before Capaci’s June 24
telephone call; she testified that on that one trip, she both low-
ered her windows and placed the boxes in her automobile. On
cross-examination, however, Edwards testified three times that
she made two trips to her automobile before Capaci’s telephone
call; she testified that she made one trip to lower the windows
and she made the other trip to places the boxes in the automo-
bile. Moreover, on cross-examination Edwards gave testimony
of the approximate times of each of the two trips that she made
to her automobile before Capaci called her.
Edwards’ Discharge—Respondent’s Evidence
As noted, Edwards placed employee Chester Constant at two
of her confrontations with her supervisors; the first was with
Truxillo and Betanoff, and the second was with Betanoff but
not Truxillo. At the first, Truxillo supposedly spoke to Betanoff
and he referred to Edwards as an “ass hole,” and Truxillo told
Betanoff that Edwards “was talking up for the Union” at the
employer campaign meeting that Truxillo had just completed.
At the second confrontation, Constant supposedly told Betanoff
that he had gotten a union handbill from Edwards and Betanoff
told Edwards: “If the Union came in, you would be out of a job
in a minute.” Respondent called Constant as its witness. Con-
stant (vol. 148) testified that he saw Edwards “[a]bout every
day” during the first 6 months of 1993, and he never saw her
wearing a union pin. Constant further testified that during that
period he never heard Edwards speak favorably about the Un-
ion; she never told Constant that she was a union supporter; and
Constant never heard her tell anyone else that she was a union
supporter. Constant further denied that he was present when
Truxillo told Betanoff that Edwards had been speaking for the
Union and that Edwards was an “ass hole,” or that Betanoff
ever told Edwards that she would be out of a job in a minute if
the Union was selected by the employees. Constant further
denied that he was present when Betanoff told Edwards to keep
quiet at the employer campaign meetings and just “look pretty.”
Finally, Constant denied that he ever got any handbills from
Edwards.
Truxillo (vol. 70) testified that he conducted employer cam-
paign meetings only for the approximately 15 shop employees
who regularly signed his MCR, and Edwards was not one of
those employees. Truxillo further testified that he saw Edwards
every day during the preelection period, and he never saw her
wearing prounion insignia. Truxillo specifically denied tearing
a pin from Edwards’ blouse, and he specifically denied telling
Edwards that wearing a union pin was grounds for discharge.
Truxillo further denied telling employees that they would lose
their jobs if the Union was selected by them as their collective-
bargaining representative, and he denied telling Edwards that
she would be out of her job “in a second” if the Union was
selected. Truxillo further denied accusing Edwards of placing a
union handbill above the timeclock.
Betanoff (vol. 68) testified that he was the supervisor of Ed-
wards and that she was on his daily MCR. Betanoff denied that
at any of the employer campaign meetings that he conducted
Edwards said anything, and he denied that he and Edwards ever
discussed the Union. Betanoff denied that Edwards ever wore
prounion insignia or otherwise showed support for the Union.
Betanoff specifically denied that Edwards told him that she
planned to vote for the Union, and he denied that he told Ed-
wards that, if the Union was selected as the collective-
bargaining representative, she would lose her job.
Betanoff further testified that during the morning of June 25,
Edwards called him and:

[Edwards said:] I am not coming to work.
And then I asked her what happened, and she told me
about that they were going to look at her case Monday.
She won’t come to work, and they won’t look at her case
until Monday.
I asked her the question, “What happened.”
She told me that Security caught her having in her car,
in her possession, in her trunk, some cleaning substances.
I asked her a question, “What for? What you were do-
ing with them.”
She said, “Well, I was planning to clean my apart-
ment.”

(As noted, Edwards testified that she was moving from one
house to another; she has never lived in an apartment.) On
cross-examination Betanoff further acknowledged that in a
pretrial affidavit he stated that: “Edwards admitted to me that
she took the cleaning supplies in order to clean her new apart-
ment.”
Capaci (vol. 66) testified on direct examination that he knew
Edwards, and he saw her at work on a daily basis, but he denied
ever seeing her wearing any prounion insignia. Capaci testified
that shortly after noon on June 24 dispatcher and supervisor,
Ralph Luli told him that he had received an anonymous tele-
phone report that Edwards had placed some cleaning supplies
in the trunk of her automobile. Capaci testified that he called
Edwards and, without telling her why, asked her to meet him
outside the machinery department office. Edwards agreed. Ac-
cording to Capaci:

Ramona met me outside the machine shop in the open
area, and I told her that we had received an anonymous
phone call in reference to a theft, that the caller had stated
that she had taken some cleaning supplies and placed them
in her vehicle. . . .
She became upset and said that she was concerned
about what her father [who was then employed by Re-
spondent] would think, that he was a minister in the
church, and that she was concerned about losing her job.
And at that time I said, “Ramona, you know, did you
take any cleaning supplies?”
And she said, “Let me clear the air at this time. Yes, I
did.”
I said, “That is a violation of company policy. You
could be terminated for that.” . . . And I said, “Where are
the supplies right now?”
She said, “They are in my car.”
I asked her if she would voluntarily retrieve the sup-
plies. She said she would and give them back to me, and
we walked on over to her car.

Further according to Capaci, when he and Edwards got to her
automobile, Edwards opened a rear door and showed him a
single empty box that was on the back seat; Edwards told Ca-
paci that she had gotten the empty box from “the supply shack”
(apparently, the porter’s shack). Then Edwards opened the
trunk (with a key); in it was a box similar to the one on the back
seat. In the box, according to Capaci were, “plastic bags,
cleanser, cleaning supplies, office cleaning and house cleaning
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1354
supplies that you would use in a bathroom or a kitchen, on a
desk—furniture polish—stuff like that.” Capaci testified that
then:

She . . . said, “There is the supplies that I took, but I
want to tell you why I took them.”
I said, “Well, we will talk about that later.” . . .
Ramona took the supplies out of the trunk and handed
the box to me.
I asked her if she would voluntarily come to the office
and give a voluntary written statement of what happened,
and she said she would.

Further according to Capaci, when they got to his office:

Well, I asked Ramona what happened, and she told
me, just like she stated when we were in front of the ma-
chine shop, she wanted to tell me. She wanted to clear the
air. She was embarrassed. She was upset, worried about
what her father would say.
So I said, “Well, what happened.”
She said, “I bought a new house, and I don’t have any
money to buy the cleaning supplies, so I took these clean-
ing supplies that were supposed to be for Avondale—
Avondale company property.”
I said, “Are you willing to give a voluntary written
statement—your story of what happened?”
She said, “Yes.” And then we initiated the statement.

Capaci testified that before he began writing the statement for
Edwards to sign, he read to Edwards the boilerplate statement
at the top of a form that indicated that the statement was volun-
tary. The statement, part of which is quoted above, was com-
pleted. Capaci testified that, “[e]very time” that he takes a
statement from an employee, he reads what he has written to
the employee, and Capaci testified that he did so in Edwards’
case. Capaci testified:

I gave the statement to Ramona to read before she
signed it. . . . She read the statement and said that is what
she took the supplies for, and [I] showed her on the state-
ment where to sign it. . . . I told Ramona that she could go
ahead and return to work and punch out. I believe it was
almost the end of the workday, but that while this case was
under investigation she would be suspended which is nor-
mal procedure.
Ramona wanted to know if she could vote the next day
in the Union election. . . . I told her absolutely she could
vote. . . . I gave her her badge so that she could come onto
company property and vote the next day.

Capaci denied that: (1) there was any other discussion about
voting while Edwards was in his office; (2) another person
(such as the gate 11 guard) came into his office during the in-
terview of Edwards; (3) he asked Edwards if anyone had a ven-
detta against her; (4) he told Edwards that he did not believe
she had stolen the property; (5) he told Edwards that he was
just trying to help her; (6) he told Edwards that the document
that she was signing was not an admission of guilt; (7) he told
Edwards that the document would help her get her job back; (8)
he told Edwards that he did not know how things would go, but
he would see what he could do for her; (9) Edwards told him
how she was going to vote; (10) he told Edwards that her say-
ing that she would be voting for the Union would not help her
job; and, finally, (11) Edwards told him that she could not read.
Ultimately, I credit all of these denials except the last.
Capaci testified that he was busy with election duties on June
25. Early on June 28, he contacted Mark Boudreaux, the porter
whom Edwards had implicated as having given her the cleaning
supplies outside gate 11. Capaci also testified that he talked to
Boudreaux’s helper (whom Capaci could not name). Boudreaux
and the helper, Capaci testified, told him that they had given
Edwards cleaning supplies, but only inside the gate, at the ma-
chine shop where Edwards did have some cleaning duties.
Boudreaux showed Capaci a “disbursement list” that showed
that he had left certain supplies at the machine shop. (Neither
Boudreaux nor his helper testified.)
Capaci testified that he then contacted Murray Reed, the
guard who had been on duty at gate 11 on June 24. (Capaci
testified that he spoke to Reed because, although Edwards testi-
fied that she got the supplies from Boudreaux outside gate 11,
Boudreaux had said that he gave supplies to Edwards inside the
gate, at the machine shop. Capaci testified that he reasoned that,
if Boudreaux was telling the truth, Edwards must have taken
the items through the gate, past the guard, without a property
pass. Capaci thought Edwards might be lying about where she
got the items to protect Reed.) Capaci testified that Reed told
him that he had not seen Edwards take materials through the
gate on June 24, but she previously had done so: “And she
would frequently comes [sic] in and out with cleaning supplies,
and at some times she would forget the paperwork. But that she
would always bring the paperwork back.” (Reed did not tes-
tify.) Capaci issued Reed an oral warning because Reed admit-
ted that he had, at times other than June 24, allowed Edwards to
come through gate 11 without paperwork for property that she
was carrying.
Capaci testified that he then called the human resources de-
partment and spoke to Manager of Employment Julie Bolden.
Capaci reviewed the matter with Bolden to see that he was “not
overlooking anything.” Bolden told Capaci that he was “right in
line in terminating Ramona Edwards,” and that is what he de-
cided to do. (Respondent did not call Bolden to testify.)
Capaci conducted no other investigation. He contacted De-
partment Superintendent Kaul and told Kaul what had hap-
pened. Capaci further told Kaul to handle the paperwork for
Edwards’s discharge, which Kaul did. Capaci testified that
Edwards called him later on June 28; he asked Edwards to
come to the plant; when she arrived, Capaci told her that she
was discharged for theft. Edwards did not respond. (As noted,
Edwards did not testify about how or when she was told that
she was discharged, and this testimony by Capaci stands un-
denied.)
On cross-examination, Capaci acknowledged that his pretrial
affidavit states:

Within an hour of getting the call about Ramona Ed-
wards I went to see her in the machine shop and ask her to
come back to my office to discuss the Company business.
And when we got back to my office I asked her about the
information we had received, and she admitted in the of-
fice [that] she had taken the cleaning supplies. I told her
that she had committed a serious offence, and asked her if
she would voluntarily give the supplies back. She said she
would. And we went out to her car which was parked in
the parking lot A adjacent to the security guard shack at
Gate 11. . . .
AVONDALE INDUSTRIES

1355
When we arrived at her car she unlocked it and opened
it. She then opened the trunk, and I stood nearby while she
retrieved the supplies. And we then returned to my office
with the supplies.
We did not have any discussions about whether or not
she would vote in the Union election.

This affidavit, of course, conflicts with Capaci’s testimony
about the sequence of his meetings with Edwards and his testi-
mony that her voting was mentioned when they were in his
office.
As noted above in the case of alleged discriminatee Brown,
Capaci also took statements from guard Agnes Williams and
production employee Amos Mistric when he was investigating
allegations that Brown had cursed Williams (in a parking lot
dispute). As also noted above in the case of alleged discrimina-
tee Dwight Ballard, Capaci took a statement from Supervisor
Jesse Caston when he was investigating allegations that Ballard
had posted materials on a company bulletin board without per-
mission. In each of those three statements that Capaci took, he
used the question-and-answer form that he used when taking
the statement from Edwards. The General Counsel also intro-
duced two statements that security department investigator, and
Capaci subordinate, Ronnie Legasse took from employees John
Porrazzo Jr., and Joseph Serpas during another theft investiga-
tion. Legasse used the same question-and-answer form. In each
of those five statements, the first question that is asked is: “Can
you read and write the English language?” No such question
appears in Edwards’ statement. On cross-examination Capaci
was asked and he testified:

Q. I understand you took the statement from Ms. Edwards.
When you began, did you ever ask her if she could read or
write the English language?
A. No, I didn’t.
Q. And is there a reason you didn’t ask her that?
A. I thought she could read. She was a clerk. Never said she
couldn’t read.
Q. She never told you that she couldn’t read?
A. No. She—it appeared she could read.

Capaci acknowledged, however, that guards such as Agnes
Williams are required to be literate. Of course, supervisors such
as Caston must be able to read (as the plethora of company
forms introduced in this case would indicate).
Kaul (vol. 68) testified that Edwards occasionally cleaned of-
fice areas and that she could have gone to the storage building
just outside Gate 11 to get cleaning materials and bring them
back inside the gate. Kaul testified, however, that in no case
would Edwards, in the course of her duties, take cleaning mate-
rials out of gate 11. Kaul flatly denied that he ever saw Ed-
wards wearing prounion insignia. He further denied ever asking
Edwards if she had posted prounion literature near a timeclock.
Kaul further testified that at some point on June 25, Edwards
called him. Kaul was asked, and he testified:

Q. What was said in that conversation?
A. I believe I asked her did she get to vote, or did she
vote. And she said yes. She did.
Q. And was anything else said?
A. She said to me, “Don’t worry, Mr. Jake. We are go-
ing to beat them.”

Edwards was called in rebuttal. She denied ever admitting to
Kaul or Betanoff that she had stolen the cleaning items; she
denied that she called Betanoff on June 25; but she did not deny
calling Kaul on June 25, and she did not deny telling Kaul:
“Don’t worry, Mr. Jake. We are going to beat them.”
Edwards’ Discharge—Credibility Resolutions
and Conclusions
When testifying about her own conduct, Edwards had an ex-
tremely unfavorable demeanor, and her testimony about her
June 24 trips to her automobile demonstrated that she possessed
a clear willingness to lie about the circumstances of her dis-
charge. As noted, on direct examination Edwards stated twice
that she had made only one trip to her automobile before Ca-
paci came down to the machine shop; that trip was “when I let
the windows down, you know, which was the same time that I
put the boxes in.” Then counsel for the General Counsel led
Edwards to conclude that she made “those three trips” to her
automobile during the entire day; as counsel counted the trips,
they were: (1) to put the boxes in the back seat and let down the
windows; (2) to accompany Capaci; and (3) to go home. On
cross-examination Respondent’s counsel asked Edwards what
the three trips had been. Edwards obviously forgot that the
General Counsel had led her to count her going home trip, and
she could only think of two. To remove the conflict, Edwards
created a second trip that occurred before Capaci arrived at the
machine shop: one trip, Edwards testified, was to let her auto-
mobile’s windows down, and a second trip was to bring the
boxes to the automobile. Edwards even supplied the times of
the two trips before Capaci arrived at the machine shop: (1)
after lunch; and (2) “[a]bout maybe 20, 25 minutes” later. In
summary, Edwards felt a necessity to come up with a third trip
to the car (before going home), and she was willing to create it.
This was not mere forgetfulness; Edwards testified that she
could not have taken any of the cleaning materials out of the
plant because a guard had inspected what she carried through
gate 11. If that proposition had any validity, Edwards would
have well remembered her trips to her automobile, and she
would not have manufactured another one, much less given its
time.
Even before Edwards gave that self-conflicting testimony,
however, she had rendered herself incredible in her testimony
about the circumstances of her discharge. Edwards testified that
she dragged the several boxes that had not been flattened to the
gate because she did not know that cardboard boxes could be
flattened; after inspecting the boxes, the guard told her that they
would not fit in her automobile and he flattened them for her.
Edwards appeared to be about 40 years old. I cannot imagine a
person having lived that long and not knowing that cardboard
boxes can be flattened for easier handling and storage. (The
ability to read is not a prerequisite for such knowledge.) I also
cannot believe that Edwards would not have known that several
nonflattened boxes would not fit in her automobile, especially
if a guard could tell that. I believe that the entire story about the
guard who helped her was a fiction created to show that any-
thing that she took out of the gate had been well inspected and
that she could not have stolen anything.
Edwards also testified that she left her automobile’s win-
dows open on every warm day that it did not rain. The effect of
that testimony is that, although she left her automobile’s win-
dows open almost every day, it just happened that “someone”
chose to plant stolen goods in her automobile on the same day
that she decided to collect boxes and place them in the automo-
bile. I did not believe that testimony when I heard it, and I still
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1356
do not believe it. Even accepting the self-serving premises of
Edwards’ account, however, there is no evidence that the
“someone” was a supervisor or other agent of Respondent.
I do believe that Edwards told Capaci that she could not
read. Capaci testified that taking employee statements is “rou-
tine.” the General Counsel offered five other statements with
the “English language” question, one from a guard who is re-
quired to be able to read and one from a supervisor who is also
required to be able to read. Respondent offered over 1000
documents in an effort to prove consistent conduct in other
areas,410 but Respondent offered no other statements that the
security department ever took that did not include the question
about the ability to read the English language. I believe, and
find, that Edwards told Capaci that she could not read, and I
believe that Capaci did not place the “English language” ques-
tion in her statement for that reason. Nevertheless, Edwards
testified that she knew that she was being accused of theft, and
she knew that theft was an immediately dischargeable offense.
Given those circumstances, I do not believe that Edwards
would have signed anything without at least asking that it be
read to her; and she would not have signed it unless it was. I
credit Capaci’s testimony that he did read the confession to
Edwards before she signed it.
Even if Capaci did not read the confession to Edwards, she
necessarily knew what the document was. Again, Edwards
knew that she was being accused of theft, and she knew that
theft was an immediately dischargeable offense. Edwards testi-
fied, however, that she signed the page-and-one-half document
only because of Capaci’s representation that it was a “normal
formality . . . to help you get your job back.” I do not believe
that testimony. Capaci had written the statement in front of her;
Edwards knew that it was not a formality, normal or otherwise.
The long document could have been nothing but a confession,
as Edwards assuredly knew. (Certainly, the General Counsel
does not suggest anything that it could have been other than a
confession). Again, Edwards knew that she was being accused
of theft, and she knew that the penalty for theft is discharge; she
would not have signed any statement unless she thought she
had nothing to lose by doing so; and she would not have
thought that she had nothing to lose by signing the statement
unless she had, in fact, stolen the cleaning supplies. I believe,
and find, that Edwards orally admitted to Capaci that she had
taken the cleaning materials; I further believe, and find, that
Edwards knew that she was signing a confession of theft on
June 24. Although in his testimony Betanoff may have con-
fused “house” with “apartment” (quite possibly because of his
own experience), I also credit Betanoff that Edwards admitted
the theft to him. I therefore find that Respondent has demon-
strated that its supervisors had reasonable cause to believe that
Edwards stole the cleaning items before it discharged her.
No other witness for the General Counsel testified to threats
of the categorical nature that Edwards described. The immedi-
ate question arises: Why would Edwards have been selected for
such threats? If Edwards held prounion sympathies, there is no
probative evidence that she communicated them to other em-
ployees. She did not testify that she ever communicated any
prounion sympathies to the Union itself (which may well ac-

410 R. Exhs. 719, 730, and 800 (each rejected) contain, respectively,
181, 350, and 1097 warning notices to employees who were not alleged
discriminatees. There were other such exhibits that Respondent offered
as evidence of consistent treatment. (As previously mentioned, I admit-
ted such evidence only where the existence of a rule was in issue.)
count for the Union’s challenge of her ballot at the election).
That is, I could not credit Edwards’ testimony that she was
threatened by Betanoff and Truxillo because of her expressions
of prounion sympathies because I do not believe that she had
expressed any prounion sympathies, except for the compara-
tively remote expression to Genter in November 1992. I espe-
cially do not believe that Edwards wore prounion insignia at
work. Edwards’ father was an employee; if Edwards had worn
prounion insignia to work, the General Counsel presumably
could have called him to give his daughter’s testimony some
corroboration; the General Counsel, however, did not do so.
Moreover, Constant, Edwards’ fellow employee, credibly de-
nied ever seeing Edwards wear any prounion insignia; and
Betanoff, Truxillo, and Kaul also credibly denied that Edwards
wore prounion insignia or said anything in favor of the Union.
Indeed, I do not believe that Edwards actually held prounion
sympathies. Although Edwards appeared in rebuttal to deny any
June 25 telephone conversation with Betanoff, she did not deny
that on June 25 she called Kaul and told him that she had voted,
and she did not deny that she then told Kaul: “Don’t worry, Mr.
Jake. We are going to beat them.” That statement, I find, was
the true expression of Edwards’ sympathies.
(The General Counsel argues that none of Capaci’s testi-
mony can be credited because his pretrial affidavit places Ed-
wards at his office before he and she went to her automobile.
This statement by Capaci, however, would not alter the sub-
stance of Capaci’s testimony that Edwards orally confessed to
the theft before she signed the confession; also, Capaci’s trial
testimony was essentially consistent with Edwards’ about the
sequence of their meeting outside the machine shop which was
proximate to the parking area, their going to the automobile,
and their then going to his office. The General Counsel further
argues that Capaci cannot be credited in his testimony that he
did not know of Edwards’ alleged prounion sympathies because
he wrote a memorandum stating that it was possible to lose the
“Labor Board” case. As its context makes clear, however, Ca-
paci was writing that memorandum about the conduct of guard
Reed and the mention of the “Labor Board” was made in dis-
cussing the possibility of discharging Reed and a case that Reed
might file with the Louisiana Department of Labor. Finally, the
General Counsel contends that Capaci cannot be credited be-
cause of his affidavit that falsely states that there was no dis-
cussion about voting when Edwards was in his office on June
24. This has been a serious consideration; nevertheless, I credit
Capaci’s testimony at trial that Edwards did not tell him that
she intended to vote for the Union. Capaci had a more credible
demeanor than Edwards, and, again, Edwards’ true feelings
about the Union, and her voting intentions, were disclosed in
her undenied statement to Kaul: “Don’t worry, Mr. Jake. We
are going to beat them.”)
I credit Kaul’s testimony that he did not ask Edwards if she
posted a union handbill near a timeclock. Moreover, since em-
ployees had no right to engage in such postings, I do not under-
stand how such a question could be unlawful. I further credit
Betanoff’s and Truxillo’s denials of the threats and other con-
duct that Edwards attributed to them. I shall therefore recom-
mend dismissal of the allegations that Edwards was interro-
gated and threatened in violation of Section 8(a)(1). Moreover,
assuming that the General Counsel has made out a prima facie
case that Edwards was discharged on the basis of Genter’s
November 1992 threat to Edwards, I further find and conclude
that Respondent has demonstrated that it would have dis-
AVONDALE INDUSTRIES

1357
charged Edwards even absent the prounion sympathies that she
once expressed. I shall therefore also recommend dismissal of
the allegation that Edwards was discharged in violation of Sec-
tion 8(a)(3).
b. Glenda Dennis
(1) Dennis’ discharge after positive drug test
Glenda Joann Dennis (vols. 54, 55) was employed as an in-
sulation installer until she was discharged on May 20, 1994.411
The fourth complaint, at paragraph 32, alleges that by discharg-
ing Dennis Respondent violated Section 8(a)(3). On May 23,
Dennis returned to the plant and requested reinstatement; her
request was denied. The fourth complaint, at paragraph 33,
further alleges that Respondent’s refusal to reinstate Dennis
separately violated Section 8(a)(3). The General Counsel con-
tends that Respondent discharged and refused to reinstate Den-
nis because of her known union activities and expressions of
sympathy which included her distributing union authorization
cards and wearing prounion insignia. Respondent answers that
its supervisors had no knowledge of any prounion sympathies
that Dennis may have held at the time of her discharge. Re-
spondent further answers that Dennis was discharged, and de-
nied reinstatement, solely because she tested positive on a rou-
tine drug screening test. The General Counsel replies that the
defense is a pretext because Respondent knew, or should have
known, that the positive result from Dennis’ drug test was
caused by her lawfully taking prescription medicine. Ulti-
mately, I find and conclude that the supervisors who were in-
volved in Dennis’ discharge had no knowledge of her prounion
sympathies, and I recommend dismissal on that ground; alterna-
tively, I find that Respondent has demonstrated that it would
have discharged Dennis, and would have refused to reinstate
her, even absent her protected activities.
Employer Knowledge of Dennis’ Prounion Sympathies
Dennis worked under the supervision of Foreman Leon Hil-
liard. On direct examination, Dennis testified that in March or
April 1993, at the beginning of the overt organizational attempt,
she placed two “Union-Yes” stickers on her hardhat, “[o]ne in
the front and one in the back.” Dennis testified that the two
stickers remained on her hardhat, which she wore in production
areas, through the date of her discharge. On cross-examination,
however, Dennis acknowledged that her pretrial affidavit states:
“I wore a ‘vote yes’ sticker on my hardhat from before the elec-
tion, and it remained on my hardhat till the day I was fired.”
Dennis further acknowledged that she did tell the Regional
Office investigator that she wore only one “Union-Yes” sticker
on her hardhat. When asked where she wore that one sticker,
Dennis replied: “In the front.” On redirect examination, when
she was asked to explain the apparent discrepancy between her
trial testimony and her affidavit, Dennis replied: “Well, two is a
pair. You would consider that as one, wouldn’t you?”
Dennis further testified that in March or April 1993, on a day
that she had been distributing union authorization cards in the
women’s restroom before work, she was approached by Hil-
liard. According to Dennis, Hilliard told her, “that if I was pass-
ing out Union cards in the ladies’ bathroom to stop it because it
would jeopardize my job.” Dennis was corroborated in this
testimony by current employee Glenda Joseph Dennis (who is

411 All dates mentioned in Dennis’ case are in 1994, unless otherwise
indicated.
no relation to alleged discriminatee Glenda Joann Dennis).
Glenda Joseph Dennis (vol. 62) testified that Hilliard made
essentially the same statement to her; then she followed Hilliard
to alleged discriminatee Dennis’ work station; there, she heard
Hilliard tell alleged discriminatee Dennis that she was jeopard-
izing her job by passing out union authorization cards on com-
pany property.412 Hilliard (vol. 76) denied ever discussing un-
ion authorization cards with alleged discriminatee Dennis;
however, Hilliard was evasive, tended to answer questions that
had not been asked, and would not take his eyes from Respon-
dent’s counsel while he was on cross-examination. I credit
Dennis and Glenda Joseph Dennis who were more credible on
the point. Hilliard further denied that he saw alleged discrimi-
natee Dennis wear prounion insignia; I find, however, that
Dennis wore at least one “Union-Yes” sticker on her hardhat
while working in production areas, and, from that fact, her pro-
duction supervisors knew of her prounion sympathies.
Dennis further testified that on May 6, the day of Respon-
dent’s annual shareholders’ meeting, she wore to work a proun-
ion T-shirt, as did many other union adherents. Dennis wore a
jumper but, for at least part of her workday, the T-shirt was
exposed to her supervisors. Dennis was also corroborated in
this testimony by Glenda Joseph Dennis, and I found it credi-
ble.
Background of Dennis’ Discharge
Dennis testified that on February 11, something flew into her
eye as she walked from the parking lot toward her working
area. Dennis went to the medical department (or “First Aid
Department”) where someone flushed out her eye; then she
went to work. About 8 a.m., she went back to the medical de-
partment complaining of pain. After being examined, Dennis
was provided with transportation to the office of Dr. Suzette
Killen, an independent provider whom Respondent sometimes
uses for employees who are injured on-the-job. Dr. Killen
treated Dennis, placed an eye patch over her eye, and wrote her
a prescription for 10 capsules of Tylenol 3 With Codeine (Ty-
lenol 3). Dennis was transported back to the medical depart-
ment. Respondent’s medical department can fill some prescrip-
tions, but not those that contain opiates, such as Tylenol 3. A
medical department attendant told her to take the prescription
for Tylenol 3 to an independent pharmacy and Respondent
would be billed. Dennis was sent home by the medical depart-
ment (because she could not work with an eye patch). Dennis
got the prescription for Tylenol 3 filled at a commercial phar-
macy, and Respondent’s insurance department was billed for
the pre-scription. Dennis testified that she took seven of the
capsules within the next few days after February 11; she saved
the other three Tylenol 3 capsules.
Dennis’ Discharge
Dennis testified that she took the remaining three Tylenol 3
capsules in May. On May 20 Dennis was discharged for failure
to provide a valid explanation for evidence of codeine and
morphine that was discovered in a drug screening test that had
been administered by Respondent’s medical department.
Patricia Pizzo is the director of toxicology at the laboratory that
tested a sample of Dennis’ urine that was collected on May 17.
Pizzo (vol. 58) testified when called by the General Counsel

412 No threat or imposition of an unlawfully broad no-solicitation or
no-distribution rule is alleged on the basis of this testimony by Glenda
Joseph Dennis and alleged discriminatee Dennis.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1358
pursuant to Federal Rules of Evidence 611(c) that codeine, such
as that found in Tylenol 3, begins a process of degrading into
morphine as soon as it enters the system. A urine sample taken
during this process will show both codeine and morphine; in
fact, a sample that shows both codeine and morphine is indica-
tive of treatment with such drugs as Tylenol 3. Eventually, all
of the codeine degrades to morphine, and urine samples will
show only morphine, until all of the morphine is eliminated
from the system. (Dennis testified that she found out that co-
deine degrades to morphine only after her discharge.)
Dennis testified that on May 16 she began experiencing fur-
ther eye pain—“about the same way it did on the 11th [of Feb-
ruary].” Dennis called in sick on May 16; she stayed home
from work, and she testified that she took two of the Tylenol 3
capsules that were left over from Dr. Killen’s February pre-
scription. On the morning of Tuesday, May 17, Dennis took
Advil and the remaining Tylenol 3 capsule, and she went to the
plant. She reported again to the medical department. Again, her
eye was flushed out; and a urine sample was taken. (Respon-
dent’s internal procedures require such a test when an employee
reports to work after an absence from a claimed on-the-job
injury.)
The medical department personnel sent Dennis to another
outside physician, and she did not return to work until Friday,
May 20. About quitting time on May 20, Dennis was paged to
come to the medical department. There, she met with Linda
Blank413 and Mercedes Bate.414 Blank is the supervisor of the
medical department who is in charge of drug testing proce-
dures; Bate is the medical department’s clerk. Dennis was
asked on direct examination and she testified:

Q. And what, if anything, did you take with you when
you went to First Aid?
A. My work bag, my hardhat.
Q. And when you got to First Aid, what did you do?
A. Well, I went to the window to let them know I was
there, and Mercedes Bates was behind the window and she
spotted me and she told me to come on around to the back
office.
Q. And once you got to the back office, who, if any-
one, was there?
A. Linda Blank [and Bate]. . . .
Q. And at that point where were your hardhat and
work bag?
A. On the floor beside me and the hardhat was on top
of the work bag.

Dennis was not asked if the hardhat was right side up or upside
down. (On cross-examination Dennis acknowledged that she
did not wear her hardhat at any time that she was in the medical
department.) Dennis was further asked and she testified:

Q. Now, tell us what, if any, conversation you had
once the three of you were assembled.
A. Well, Blank told me that my—the drug report had
returned and that it had came back positive and I had a
high level of codeine and morphine in my system, and if I

413 By time of trial, Blank’s name was Maggio.
414 By time of trial, Bate’s name was Truxillo, because she had mar-
ried Supervisor Steve Truxillo who is mentioned in alleged discrimina-
tee Edwards’ case. Bate was sometimes referred to as “Bates” by the
witnesses.
couldn’t explain where I got it from, she would have to
terminate me.
Q. And what, if any, response did you make to that?
A. And I told her about the Tylenol 3 with codeine and
the Advil.
She said, “That explains the codeine but not the mor-
phine.”
And I told her that I didn’t know how the morphine
had got in my system. And at that time I showed her my
arms showing her that I didn’t have no needle marks on
them or nothing and I didn’t do no drugs, and she gave my
medicalfile to [Bate] to take to Dr. Mabey [Respondent’s
in-house physician] to see if anything in the file contained
the morphine, and a few minutes later she [Bate] brought
the file back and told [Blank] that Mabey said no.
And at that time Blank told me that she had to termi-
nate me and she took my badge and she gave me two
passes to allow me to leave Avondale, and she had me to
sign some papers or something.
Q. Did she tell you what, if any, choices you had other
than being discharged?
A. Oh. She told me that if I wanted my job back I had
to take an eight-week drug [counseling] class, but I had to
admit that I was on drugs, and she gave me a little slip
with a lady named Jan McMary on it. I guess she was the
head over the class that I had to go through to get the job
back.
Q. And what was your response to that?
A. I told her no, that I wasn’t taking any drugs.

The “papers or something” is critical to this case; Dennis
signed a preprinted form which she partially completed. The
completed form, with handwritten entries that are underlined
here, reads:

Date test results returned from lab: Friday, May 20,
1994
Date Advised of termination: Friday, May 20,1994
I have been advised of the results of my drug test by
Linda Blank in the presence of Mercedes Bate and that ac-
cording to company policy I have been terminated from
employment at Avondale Shipyards Division.
I also was advised of what I must do in order to be
made eligible for rehire, along with what I need to do to
pick up my final check.
In response to the question of when was the lst time I
used drugs or alcohol before taking the drug test on May
17, 1994, my answer was: I never done morphine or any
medication with codeine.

The last italizied sentence was written, in longhand, by Dennis.
At the end of the document, Dennis affixed her signature, and
Blank and Bate signed below Dennis as witnesses; the date
May 20, 1994, is written opposite Dennis’ signature.
The General Counsel asked Dennis and she testified:

Q. So why did you sign a form saying that when you
knew you had taken the Tylenol 3 with codeine?
A. Well, really at the time I wasn’t thinking straight
because I had just been terminated, fired, kicked in the
butt, so all I was thinking about was where my next meal
was coming from or how I was going to pay my bills.
They probably could have put a [sic] Declaration of Inde-
pendence in front of me and I might have signed it, too.

AVONDALE INDUSTRIES

1359
After signing the form, Dennis left the premises. Dennis testi-
fied on June 13 she went to the public library and discovered
that codeine degrades to morphine in the system. (On Monday,
May 23, Dennis returned to the plant with her brother to ask for
reinstatement; that matter is discussed in a separate subsection,
below.)
Francis McGill (vol. 53) is employed by Respondent as an
electrician. McGill testified that in June he was called to the
medical department for a random drug test. At the time, he was
taking cough syrup with codeine that had been prescribed by
his personal physician. He told that to the attendant who took
his specimen, and the attendant appeared to write something
down. A few days later he was called to the medical depart-
ment. When he arrived, an attendant took his badge, which is
often the first step in discharging an employee. Blank then ap-
peared and told McGill that he had tested positive for codeine
and morphine. McGill told Blank that he was taking prescribed
codeine cough syrup, and he tendered his physician’s telephone
number so that she could verify his representation. Blank re-
fused to call the physician, but she stated that she would call
McGill’s home and ask his wife to read to her the name of the
medicine from the bottle. McGill’s wife was not at home, and
Blank spoke to McGill’s son. The son gave Blank some medi-
cine’s name from some bottle that was in the house. Blank
called another number; then she reported to McGill that she did
not know if the medicine really contained codeine. Again
McGill asked Blank to call his physician. According to McGill:
“She told me [that] they had to terminate me; I was fired, and I
couldn’t work for Avondale—neither Avondale or a contractor
at Avondale unless I went to drug rehab.” The next day, McGill
returned to the medical department with a bottle of the pre-
scribed codeine cough syrup and his pharmacy records. He met
with Sansoni and tendered the bottle and records, but Sansoni
said it was not necessary to look at them. Sansoni told McGill
that his discharge had been a “mistake,” and McGill could go
on back to work. Sansoni did not tell McGill how the discharge
had been a “mistake.” (McGill was paid for the time that he had
lost on the day that Blank had discharged him.)
Dennis’ Discharge—Respondent’s Evidence
Blank made the decision to discharge Dennis. Blank (vol.
72) and Bate (vol. 67) flatly denied seeing Dennis’ hardhat
when she was in the medical department on May 20. The testi-
monies of Blank and Bate are essentially consistent with each
other on other points, as well. Their testimonies about Blank’s
exchanges with Dennis are inconsistent with the testimony of
Dennis only in regard to what was said about what, if any,
drugs that Dennis may have been taking. Blank and Bate testi-
fied that in the interview Dennis never stated that she had taken
some Tylenol 3. Both testified that Dennis acknowledged tak-
ing only eye drops and birth control pills, even though Blank
specifically asked Dennis, several times, if she had recently
taken Tylenol 3 or some other form of Tylenol. At the end of
her direct examination, Bate was asked, and she testified:

Q. At any time during that conversation, did Ms. Den-
nis tell Ms. Blank that she was taking Tylenol 3?
A. No, she did not.
Q. At any time during this conversation, did Ms. Blank
tell Ms. Dennis that Tylenol 3 would explain the morphine
but not the codeine? . . .
THE WITNESS: No, she did not.

At the end of her direct examination, Blank was asked and she
testified:

Q. Okay. At any time, Ms. [Blank], did Ms. Dennis
say that she had been taking Tylenol 3 with codeine?
A. Not once. I questioned her many times on that
when—
Q. At any time, did you tell Ms. Dennis that taking Ty-
lenol 3 would explain the morphine but not the codeine?
A. No.

Pizzo, of course, had testified that codeine degrades to mor-
phine, not the other way around. In their direct examinations,
however, Blank and Bates were only asked if Blank had told
Dennis that her taking Tylenol 3 “would explain the morphine
but not the codeine.” Of course, that is not what Dennis had
testified that she was told by Blank; consistent with the testi-
mony of Pizzo, Dennis testified that, when she told Blank that
she was taking Tylenol 3, Blank replied: “That explains the
codeine but not the morphine.” This is a significant difference
because, again, codeine degrades to morphine; morphine does
not change to codeine. As phrased, the questions to, and an-
swers from, Blank and Bate make no sense; and, certainly they
do not constitute denials of Dennis’s testimony that Blank told
her: “That explains the codeine but not the morphine.”
A factual issue is whether, at the time that she discharged
Dennis, Blank knew that codeine degrades to morphine. Blank
testified that she had known that fact for years. Blank is not a
biochemist or a professional of any other stripe,415 and she ap-
pears to have had no more than on-the-job training.
Dennis’ Discharge—Credibility Resolutions
and Conclusions
On direct examination, Dennis testified that she wore two
“Union-Yes” stickers on her hardhat; on cross-examination,
however, Dennis admitted that there was only one sticker on
her hardhat. (This false testimony by Dennis on direct examina-
tion created an unfavorable impression with me; Dennis also
displayed a degree of argumentativeness that further contrib-
uted to the unfavorable impression that she left.) Dennis further
testified that she was accused by Foreman Hilliard of distribut-
ing union authorization cards, and she wore a union T-shirt on
May 6, the day of the shareholders’ meeting, as other prounion
employees did. I have credited that testimony, which was cor-
roborated by current employee Glenda Joseph Dennis, and I
credit her testimony that she wore one “Union-Yes” sticker on
her hardhat when in production areas. Nevertheless, Dennis
was not discharged by a production supervisor; Dennis was
discharged by Blank, a supervisor of the medical department.
Dennis testified that she carried her hardhat (with one “Un-
ion-Yes” sticker) to the medical department on May 20, and she
placed it on the floor on a bag that she was also carrying. Den-
nis did not testify whether the hardhat was right-side up or up-
side down, but, in either event, her handling of her hardhat in
the medical department was not the open and obvious display
of prounion sympathies that she had made in the production
areas. Moreover, Bate and Blank flatly denied seeing Dennis’
hardhat when she was in the medical department on May 20.
This testimony was credible, and the General Counsel suggests
no other evidence by which Blank could have learned of Den-
nis’ prounion sympathies before she discharged Dennis. In

415 As her cross-examination showed, Blank’s working vocabulary
did not distinguish between “derivative” and “distributive.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1360
other cases where alleged discriminatees credibly testified that
they had worn prounion insignia in production areas, I have
ultimately charged the production supervisors with knowledge
of the employees’ prounion sympathies. Employees are neces-
sarily seen by supervisors when the employees are working. In
those circumstances I have found the supervisors’ denials of
relevant knowledge to be incredible. There is, however, no
logical basis for charging nonproduction supervisors with
knowledge of an employee’s prounion sympathies by virtue of
the employee’s wearing prounion insignia only in production
areas. I therefore conclude that the General Counsel has not
presented a prima facie case that Dennis was unlawfully dis-
charged, or refused reinstatement, and I shall recommend dis-
missal of both of those allegations on that basis. For possible
purposes of review, however, I shall make further findings of
fact.
As noted, when they were on direct examination, Blank and
Bate were asked if, during the interview of May 20, Blank told
Dennis that Tylenol 3 would explain morphine but not codeine
in Dennis’ urine specimen. Blank and Bate answered nega-
tively, but those denials were not denials of what Dennis had
testified to. Dennis testified that Blank told her: “That explains
the codeine but not the morphine.” Because there is no denial
of Dennis’ testimony on this point, and because Dennis was
credible in this part of her testimony, I credit Dennis.
For Blank to have told Dennis, “[t]hat explains the codeine
but not the morphine,” Dennis must have told Blank, at least
initially, that she had taken something with codeine, namely
Tylenol 3. I believe, and find, that Dennis told Blank, early in
the interview of May 20, that she was taking Tylenol 3. When
Blank told Dennis that taking Tylenol 3 would not explain the
morphine, Dennis accepted that erroneous statement and
changed her story to Blank and Bate; Dennis began telling them
that she was taking nothing but eye drops and birth-control
pills. Then, at the end of the interview, to be consistent with the
denials she had orally made, Dennis denied, in writing, that she
was taking anything with either codeine or morphine. (Dennis
testified that in the discharge interview she was so distraught
that she would have signed the Declaration of Independence if
it had been placed before her. The question, of course, is not
what she merely would have signed; the question is what she
would have written out herself, and then signed.) I do not be-
lieve the testimony of Blank and Bate that Blank repeatedly
asked Dennis if she had not been taking Tylenol 3 or other
forms of Tylenol; I believe there were no further questions on
the subject after Blank erroneously stated that Tylenol 3 was
only an answer to the positive codeine result, not the positive
morphine result.
I believe, however, that Dennis was led into lying (orally and
on the form) by Blank’s ignorance, not by Blank’s desire (on
behalf of Respondent) to discriminate against Dennis because
of her prounion sympathies. Blank (and Respondent’s other
supervisors who would have had to have been in on the
scheme) could not have anticipated that Dennis would lie and
say that she had taken nothing that would cause a positive drug
test result, rather than insist that she had taken nothing but left-
over Tylenol 3. (Dennis’ denials of all consumption of opiates
are to be contrasted with the case of the General Counsel’s
witness, McGill, who was also discharged by Blank, but then
reinstated; McGill insisted, from start to finish, that he was
taking prescription codeine medicine.) That is, Blank did not
intentionally entrap Dennis by telling Dennis: “That explains
the codeine but not the morphine.”416 Although Blank testified
that she had known for years that codeine degrades to mor-
phine, it is apparent to me that she did not know it at the time
that she discharged Dennis. It appears, further, that Blank did
not know that codeine degrades to morphine even when she
discharged McGill a month later. (Blank denied much of
McGill’s testimony, but I found him credible; moreover, San-
soni did not deny McGill’s testimony that Sansoni had admitted
to him that his discharge had been a “mistake.”)
The General Counsel further contends that, when Dennis’
file was brought to him, Dr. Mabey should have figured out that
Dennis had been taking the Tylenol 3 that had been prescribed
in February. The Tylenol 3 had been prescribed in February,
not by Dr. Mabey, but by an outside provider. Although the
prescription was ultimately paid by Respondent’s insurance
department, there is no reason to believe that the prescription,
or a record of its payment, would have appeared in the file that
Dr. Mabey looked at.417 Even if it had somehow been reflected
in Dennis’ medical file, the Tylenol 3 prescription was written
in February; neither Dr. Mabey nor Blank would have had rea-
son to believe that Dennis had saved some of it until May, es-
pecially in view of Dennis’ oral, then written, protestations that:
“I never done morphine or any medication with codeine.”
For these reasons, even if a prima facie case had been pre-
sented, I would recommend dismissal of the allegation that
Respondent discharged Dennis in violation of Section 8(a)(3).
(2) Dennis’ being refused reinstatement
As noted, on May 23 Dennis applied for reinstatement with
David Sansoni, the director of Respondent’s medical depart-
ment. Sansoni refused to reinstate Dennis, and that refusal is
alleged as a separate violation. There is no evidence that San-
soni had actual knowledge of Dennis’ prounion sympathies, but
I nevertheless enter the following findings of fact for possible
purposes of review:
According to Dennis, she and her brother Joe Davis went to
Sansoni’s office on May 23; Dennis acknowledged that she was
not wearing prounion insignia, and the Union was not men-
tioned, during the meeting with Sansoni. Dennis testified:

[Sansoni] come out there to talk to us, and my brother
told him that yes, he know of me, that I did not do drugs,
and then he [Davis] asked him [Sansoni] could he do a
second urine test on me, and they [Sansoni] said, “No, the
first test was accurate.” . . .
I was trying to tell him about the Tylenol 3 With Co-
deine, the Advil and the medications that I had taken all
around, and he didn’t want to hear about it.

Dennis testified that she and Davis had brought with them the
bottles for various prescriptions that Dennis had been taking;
these included the bottles for Darvocet,418 Robitussin, Bena-
dryl, and the Tylenol 3 that she had possessed since February.
Dennis was further asked on direct examination and she testi-
fied:

416 Other evidence negating an intent to entrap Dennis lies in the of-
fers of reinstatement after completion of a drug-rehabilitation program
by Blank and Sansoni.
417 The General Counsel did not contend that Dennis’ medical file
was not provided pursuant to subpoena.
418 The Darvocet had been prescribed for Dennis on May 17, after
the urine sample was taken.
AVONDALE INDUSTRIES

1361
Q. When you were speaking to [Sansoni], where were
the bottles?
A. Oh. I had it in this purse here. . . .
Q. [O]nce you told [Sansoni] about your medications,
what, if anything, [did he say] about them?
A. Oh, he acted like that didn’t contain the morphine
or the codeine that was in my system.
Q. Did he actually say anything?
A. [Inaudible].
JUDGE EVANS: That was a no. Next question.

Davis (vol. 56) testified that he met Dennis in Respondent’s
parking lot on May 23 and “she showed me she had the medi-
cine in her pocket.” Davis and Dennis then went to Sansoni’s
office and, according to Davis:

Okay. Then I said [to Sansoni that] I had her to bring
along all the medicine and stuff that she was taking, be-
cause I knew she wasn’t no drug abuser. And, after I told
him that he said, “The test was given by qualified people
and it came back positive.” . . .
[D]uring the time we was talking, she [Dennis] had the
medicine in her hand. But, when I was talking to him,
well, he [Sansoni] didn’t want to see the medicine.

(Of course, this testimony that Dennis had her medicine bottles
“in her hand” conflicts with Dennis’ testimony that, while she
and Davis were talking to Sansoni, she had the bottles “in this
purse here.”) Davis further testified that he asked Sansoni if
Dennis could be administered another drug test; Sansoni re-
fused and stated: “the drugs had been out of her system like
three days.” Further according to Davis: “And the only thing
that he could really tell us was, you know, that she had to go to
this drug class, or something like that that they had over there.”
Davis did not testify that he or Dennis told Sansoni that she had
been taking Tylenol 3, or any other opiate, before her drug test
of May 17.
Sansoni (vol. 140) testified that he was away from the plant
on May 20, and Blank reported to him on Monday, May 23,
that she had discharged Dennis. Blank told Sansoni that Dennis
had tested positive for codeine and morphine but Dennis had
“adamantly” denied having taken any drugs that would account
for the test’s results. Sansoni testified that this was the first time
that one of Respondent’s employees had ever tested positive for
opiates but not claimed that he or she was taking medicine pre-
scribed for himself or herself, or for a family member. Sansoni
testified that he then examined Dennis’ file to see if there was
anything that might explain the positive result of the test; he
found nothing.
Sansoni agreed that he met with Dennis and Davis later on
May 23. Sansoni was asked and he testified:

Q. What if anything do you recall being said in that
conversation? What were you told, and what did you say
in response?
A. Basically, they came in requesting that Ms. Dennis
be given another drug test. And I informed them that to
take another drug test would not prove she did not have
drugs in her system on the date the other test was given. It
would only prove that she did not have drugs in her system
today; that whatever she had a few days ago would—if she
[had] abstained, would not necessarily be in her system at
the present time.
I also asked Ms. Dennis if she had taken anything in a
prescription medicine either that she was prescribed or that
someone else was prescribed to her that could account for
the results of the test.
Q. What did she tell you? Or what did her brother tell
you with respect to that question?
A. Either her or her brother responded that she had
taken . . . Tylenol 3 . . . that her mother had. I asked her if
she had the bottle of what her mother was taking that she
took. She told me she did not. I told Ms. Dennis at that
time that if she brought the bottle with her mother’s name
on it . . . we would determine if it could cross over into
morphine, that we would sit down and reevaluate her case.

Sansoni testified that Davis threatened a law suit, and he replied
in kind, and then Davis and Dennis left the premises. It is un-
disputed that Dennis did not return to the plant after May 23.
Dennis and Davis denied that either of them claimed that
Dennis had taken a prescription for Tylenol 3 that had been
prescribed for their mother.
Dennis’ Being Refused Reinstatement—Credibility Resolutions
and Conclusions
As noted, Dennis and Davis squarely conflict about whether
Dennis’ collection of bottles was in her purse or in her hands.
Also Dennis offered the conclusion that: “I was trying to tell
[Sansoni] about the Tylenol 3 With Codeine, the Advil and the
medications that I had taken all around, and he didn’t want to
hear about it.” This is hardly testimony that she told Sansoni
about the Tylenol 3 that she received in February, and I do not
accept it as such; Dennis’ “trying” to say something is not say-
ing it, and Dennis did not testify what led her to the conclusion
that Sansoni “didn’t want to hear about it.” When asked spe-
cifically what Sansoni had said, Dennis replied: “Oh, he acted
like that didn’t contain the morphine or the codeine that was in
my system.” Dennis was then asked what Sansoni said, not how
he acted. Dennis, after evasiveness that is reflected in the quo-
tation above, then admitted that Sansoni did not say that Tyle-
nol 3 did not contain codeine or morphine. Finally, it is to be
remembered that Davis did not testify that he or Dennis told
Sansoni that she had been taking Tylenol 3, or any other opiate,
before her drug test of May 17.
I credit Sansoni over Dennis and Davis. I find that Dennis
did not have any medicine bottles with her when she and Davis
went to the plant and asked for a second drug test. I find that
Dennis did not tell Sansoni (or try to tell Sansoni) that she had
been taking prescribed Tylenol 3 before her drug test of May
17. I believe, and find, that either Davis or Dennis told Sansoni
that Dennis had taken her mother’s Tylenol 3; it is apparent to
me that, despite her self-serving testimony, Dennis did not have
in May any Tylenol 3 left over from February, and she could
not produce for Sansoni the bottle for that prescription (or a
bottle for a prescription for her mother). On brief, the General
Counsel asks rhetorically why Dennis and Davis would have
gone to the plant on May 23 if not to claim that Dennis had
been taking the Tylenol 3 that was left over from February.
Dennis and Davis went to the plant to do exactly what they did;
to wit: present Davis’ testimonial that his sister did not use
drugs and ask for another testing of Dennis. The claim of left-
over Tylenol 3 appears to have surfaced after June 13 when
Dennis went to the public library and found out that codeine
degrades to morphine. (The claim of the mother’s Tylenol 3
surfaced on the spot, when Sansoni suggested that Tylenol 3
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1362
may explain the positive test for morphine.) Finally, Sansoni
admitted on cross-examination that he would have reinstated
Dennis if she had claimed that she had been taking the Tylenol
3 that she had received in February. The General Counsel con-
tends that, even though he made this admission, Sansoni lied
when he testified that Dennis made no such claim. If Sansoni
had been disposed to lie about the matter, however, it is exceed-
ingly less likely that he would have made the admission.
For these reasons, as well as the fact that the General Coun-
sel has not presented a prima facie case that Sansoni had
knowledge of Dennis’ prounion sympathies, I recommend dis-
missal of the allegation that Respondent refused to reinstate
Dennis in violation of Section 8(a)(3).
9. Employees warned for safety violations
a. Darrell Smith’s warning notice for not wearing
safety glasses
Darrell Smith (vol. 12), an electrician, was issued a warning
notice on July 23, 1993. The second complaint, at paragraph
105, alleges that by issuing that warning notice to Smith, Re-
spondent violated Section 8(a)(3) of the Act. Paragraph 105
further alleges that, at the same time that Smith was issued a
warning notice, other employees working in his area were also
issued warning notices, also in violation of Section 8(a)(3). The
General Counsel contends that Respondent issued the warning
notices because of the employees’ known union activities and
expressions of sympathy which, in Smith’s case, included
wearing prounion insignia on his hardhat. The complaint fur-
ther alleges that, in violation of Section 8(a)(1), Smith was also
threatened by Respondent. Respondent denies that the threat
occurred. Respondent further answers that its supervisors had
no knowledge of any union activities or sympathies of Smith at
any relevant time and that Smith was issued a warning notice
solely because he was noticed by a supervisor not to be wearing
required safety eyeglasses in a production area; Respondent
further denies that any other employee was issued a warning
notice at the time. The General Counsel replies that Smith had
only had his glasses off momentarily when he was confronted
by the supervisor, and the General Counsel therefore contends
that the warning notice was issued on a pretextual basis. The
General Counsel further argues that Smith, and other employ-
ees on his crew, were treated disparately because, until the
organizational attempt began, employees were no more than
orally reminded when they were found without safety glasses in
production areas. Ultimately, I find and conclude that the Gen-
eral Counsel has proved that a warning notice was unlawfully
issued to Smith, but the General Counsel has not proved that
warning notices were unlawfully issued to other employees on
Smith’s crew.
Smith testified that he regularly wore “Union-Yes” stickers
on his hardhat as he was working. Smith testified that on July
22, when he and others were working in a hot place on a hot
day:

At that time [General Foreman] Kenny Danos came
by, peeked his head in the room, and I was cleaning my
glasses. I had my safety glasses in my hand at that time
and he said, “No safety glasses.”
And I said, “You have got to be joking; I have them
right here in my hand.”
He said, “I don’t want to hear it; I am writing you up;
what is your clock number?” And I gave him my clock
number.
And then . . . he walked out [of] the compartment and I
walked behind him and said, “You saw me with my safety
glasses right there and you are still going to write me up?”
And at that same time the [assistant] superintendent,
Gerry Gerdes, patted me on my back and said, “Nice try
but it won’t work.”
And Kenny Danos turned to me and said, “If you have
two other prior warnings with this, you are terminated.”
And at that time I walked off.

Based on this testimony, paragraph 64 of the second complaint
alleges that Respondent, by Danos, “threatened its employees
with stricter enforcement of rules because its employees aided
or supported the Union.”
Smith testified that the next day Foreman Dennis Dominique
had a “stack” of warning notices as he walked around the work
area. When he got to Smith, Dominique presented Smith with
one of the warning notices and said, “You are not the only
one.” Then, according to Smith, Dominique distributed warning
notices to other employees in the area. The warning notice that
Smith received was signed by Danos and Dominique. The box
for general offense-12 under the Avondale Employees’ Guide
(“Violation of Company safety rules and regulations through
carelessness”) is checked. The “Reason for Warning” space is
completed: “Employee was not wearing safety glasses.” Smith
testified that he had never before seen Dominique pass out
several warning notices at once.
Merland Farria (vol. 35) worked on Dominique’s crew with
Smith; Farria corroborated Smith’s testimony about Smith’s
confrontation with Danos, including the testimony that, when
Danos appeared in the area, Smith’s glasses had been off only
“[a] couple of seconds.” Farria further testified that, when Da-
nos spoke to Smith, Smith had his safety glasses in one hand
while he was wiping perspiration from his face with the other.
Farria further testified that he saw Dominique distributing
“more than one” warning notice the next day, but he did not
corroborate Smith’s testimony that Dominique distributed a
“stack” of warning notices.
Smith acknowledged that there are rules about wearing
safety glasses, (although Farria testified that only side shields
were required), but, employees “all the time” worked without
them. Until the organizational attempt the employees were
merely told to put them on if they had them. Smith further testi-
fied that, in addition to safety personnel, those who had in the
past only reminded him to put on his safety glasses were Domi-
nique and Danos. Farria was not asked about prior enforcement
of the eye-protection rule in the crew under Dominiuqe.
Smith’s Warning Notice—Respondent’s Evidence
Neither Danos nor Dominique testified. Gerdes testified, but
he did not deny Smith’s testimony that he was present when
Smith protested that Danos had seen Smith with his glasses; nor
did Gerdes deny that Danos responded that Smith would be
discharged if he had two more warning notices; nor did Gerdes
deny that he told Smith, “Nice try but it won’t work.”
Smith’s Warning Notice—Conclusions
Smith testified that he regularly wore prounion insignia, a
“Union-Yes” sticker on his hardhat, while he was working. His
supervisors, Dominique and Danos, were not presented to deny
AVONDALE INDUSTRIES

1363
this testimony, and I found it to be credible. By virtue of
Smith’s wearing prounion insignia, all of the supervisors who
worked around him, including Danos and Dominique, knew of
his prounion sympathies. Respondent’s animus toward employ-
ees who held prounion sympathies, especially those employees
who demonstrated their prounion sympathies by displaying
prounion insignia, is demonstrated throughout this decision.
The General Counsel has therefore presented a prima facie case
that the warning notice was issued to Smith unlawfully, and the
burden shifts to Respondent to demonstrate by a preponderance
of the evidence that it would have taken the same actions
against Smith even in the absence of his known protected ac-
tivities. Respondent’s defenses must therefore be examined.
On brief, Respondent states:

The Electrical Department routinely disciplined em-
ployees who were caught not wearing their safety glasses
both prior to and after the start of the Union campaign.
Robert Terry, the department superintendent, testified that
a worker’s safety is of paramount importance to Avondale
and that his supervisors always need to reinforce safety is-
sues. [92:21514–15.]
One of the safety requirements hardest to enforce is the
wearing of proper eye protection. [92:21514.] To that end,
a supervisor may notice his crew getting a little lax in
wearing their safety glasses and hardhats. The supervisor
would then put the crew on notice that they were to wear
their safety glasses and hardhats and that if the supervisor
caught them without them on, the workers would be writ-
ten up. [92:21514–15.] That is what happened with Danos.

This statement in defense, however, incorporates an admission
that Respondent’s “routine” enforcement of the safety glasses
rule included prior oral warnings before issuance of written
ones. Moreover Terry, Gerdes, and all other supervisors who
testified on the issue, testified that oral warnings did precede
written ones, at least for failures to wear safety glasses.419
Smith, however, received no such oral warning, according to
the undisputed testimony. Also, no supervisor testified that
employees are not permitted momentarily to remove their
safety glasses to wipe perspiration from their faces. According
to this record, that is all that happened in Smith’s case.
Finally, the electrical department supervisors conceded that
employees are not issued warning notices every time that they
are seen without safety glasses. For example, when he was on
cross-examination, Terry was asked and he testified (vol. 92):

Q. Do you sometimes have periods of time in the yard
when you are more aggressive or more strictly enforce
employees wearing hardhats or safety glasses?
A. If the supervisor feels that his work area, the em-
ployees are becoming too lax in safety, then he needs to
react to that. He needs to reinforce the safety. The eyeglass
thing and the hardhat requirements, as I say in my general
notes even to the new employees, are two of the most dif-
ficult things to enforce.
And you have to use judgment on that. It has to be a
judgment thing. You have got to be reasonable with it;
otherwise, you would be writing up everybody in the ship-
yard every day. And, you know, that is not what we are
there for.

419 As Terry put it, “I would give that employee a verbal [i.e., oral]
warning the first time.”

Moreover, as noted in the case of alleged discriminatee Dwight
Ballard, on December 28, 1994, Respondent’s vice president
for production, Michael Simpson, sent a letter to all employees
indicating that a substantial number of employees had, to that
date, refused to follow the rules regarding the wearing of safety
equipment, and they had done so with impunity. Simpson states
in the letter (which is quoted at length in Ballard’s case) that
supervisors are to “remind” employees to put on their personal
protective equipment, such as safety glasses, and. if the rules
were not “uniformly” followed after January 31, 1995, warning
notices will then be issued. As I stated in Ballard’s case, Simp-
son’s letter is an admission that the rules requiring safety
glasses were not being uniformly followed as late as the date of
that letter. Simpson would not have issued such a letter if the
lack of enforcement uniformity were not significant. Also, it is
to be noted that Simpson’s letter states that warning notices are
to be issued consistently only after a grace period in which
employees are to be reminded of the rule.
Gerdes was present when Smith protested Danos’ statement
that he was to receive a warning notice. Instead of investigating
the protest, Gerdes told Smith, “Nice try.” It is obvious to me
that Gerdes had sponsored the threat to enforce the safety
glasses rule on Smith, as well as condoned the threat. After all,
it was Gerdes who, as I have found above, told other supervi-
sors within the hearing of alleged discriminatee Chad Durocher
on the first workday following the Union’s showing in the June
25 Board election:

Yes, we are going to put a stop to all this good time
they have been having; we are going to crack down—yes.
We are going to put a stop to all this good time they have
been having; we are going to crack down on them; and we
are going to force time limits on them going to the bath-
room; and we are going to post watches on the workers to
make sure that they don’t have a chance to have a break.

As Durocher further testified, “[Gerdes] said he had an idea
who the union supporters were, that they were going to crack
down on the good times they had been having.” (I have further
concluded that this statement was a threat in violation of Sec-
tion 8(a)(1), as alleged in the second complaint, at paragraph
58.) The conduct of Danos, Dominique and Gerdes in this in-
stance appear to be an implementation of that threat.
I therefore find that Respondent has not shown that it would
have issued the warning notice to Smith, even absent his dis-
play of his prounion insignia. I accordingly conclude that by
issuance of that warning notice to Smith on July 23, 1993, Re-
spondent violated Section 8(a)(3).
Danos told Smith that he would get a warning notice and, if
he had two others in his file, he would be discharged. A threat
to issue an unlawful warning notice is, itself, unlawful. The
coercive nature of the threat was emphasized by Danos when
he told Smith that, if he had two other warning notices, he
would be discharged. (And the coercive nature of the threat was
exacerbated by the fact that, as shown in the case of discrimina-
tee Marshall, 883 employees were issued three or more warning
notices in 12-month periods between 1990 and 1994 without
being discharged.) I therefore additionally conclude that, in
violation of Section 8(a)(1), Respondent, by Kenny Danos, on
July 22, 1993, threatened employees with stricter enforcement
of work rules, and discharge, because of their protected activi-
ties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1364
The General Counsel has not, however, proved that Danos
issued warning notices to other employees on Smith’s crew in
violation of Section 8(a)(3). Smith did not see what was on
those notices, and he accordingly could not testify that they
were issued on pretextual bases. I shall therefore recommend
dismissal of that portion of the allegations of paragraph 105 of
the complaint.
b. Cornelius King and Leroy Jackson
On July 30, 1993, Cornelius King (vol. 34), a pipefitter’s
helper, and Leroy Jackson (vol. 36), a pipe tester, were simul-
taneously issued warning notices. The second complaint, at
paragraph 111, alleges that King and Jackson were issued the
warning notices in violation of Section 8(a)(3). The General
Counsel contends that Respondent issued the warning notices
because of King’s and Jackson’s known union activities and
expressions of sympathy which included their speaking favora-
bly about the Union’s organizational attempt during employer
campaign meetings and wearing prounion insignia. Respondent
answers that its supervisors had no knowledge of any prounion
sympathies that King or Jackson held at any relevant time. Re-
spondent further answers that Jackson and King were issued the
warning notices solely because two supervisors found them
together at a place where Jackson was out of his work area and
at a time that King was not wearing a required hardhat and
safety glasses. The General Counsel replies that the defenses
for King’s warning for not wearing a hardhat and working
without safety glasses is pretextual because King was only
stopping for a morning break, as employees are permitted to do,
and that King had removed his hardhat and safety glasses only
to wipe perspiration from his face and head. The General Coun-
sel replies that the defense for Jackson’s warning notice is pre-
textual because Jackson was not out of his work area at the time
in question. Ultimately, I find and conclude that King’s July 30
warning notice was issued unlawfully, but Jackson’s was not.
On November 10, King was issued a second warning notice.
The second complaint, at paragraph 112, alleges that King was
also issued this second warning notice in violation of Section
8(a)(3). The General Counsel again contends that the notice
was issued because of King’s known union activities and sym-
pathies. Respondent answers that the notice was issued solely
because King had quit work before lunch, and left his assigned
work area, on November 5. The General Counsel replies that
the defense is a pretext because King did not quit work early at
any time and that, moreover, King was told that he had been
caught quitting work early on November 9, not November 5.
Ultimately, I find and conclude that King’s November 10 warn-
ing notice was not unlawfully issued.
At the time that the organizational campaign began in
March, Jackson had been employed as a pipe tester for about 8
years; King had been employed as a pipefitter’s helper for
about 6 months. Their foremen were James Walker and Law-
rence Mallini.420 Their general foreman was John Whittington.
Foreman Jim Bennett was an assistant to Whittington.
Jackson testified that he usually arrived at work a full hour
before starting time. About a month before the Board election,
he posted a union flyer immediately above Walker’s desk.
When Walker saw it, he commented that no one but Jackson
could have put it there because Jackson was “the first one in the

420 Mallini’s name is incorrectly spelled “Mullini,” and “Mellini,” at
various points in the transcript which is hereby corrected.
morning” to appear for work. Harry Thompson is a prounion
employee who sometimes worked with King and Jackson and
who figures in the events leading to the July 30 warning notices
that Respondent had issued to King and Jackson. On cross-
examination, Jackson placed King and Thompson at the event
of Walker’s remark about the union flyer. Although Thompson,
as well as King, testified for the General Counsel, neither was
asked to corroborate Jackson in this testimony. Moreover,
Walker credibly denied this testimony by Jackson.
Walker, Mallini, Bennett, and Whittington conducted several
employer campaign meetings for employees of the pipe de-
partment during the organizational campaign; Michael Simp-
son, vice president for production, attended at least one of those
meetings. Jackson testified that he spoke up for the Union at
two employer campaign meetings when questions were called
for. At one of the employer campaign meetings that Bennett
conducted, Walker and Mallini (who jointly issued the July 30
warning notices to King and Jackson) were in attendance. Ac-
cording to Jackson, he asked Bennett about the duties of union
shop stewards and:

He [Bennett] would say that, because I was pushing so
hard for the Union, that they probably [would] make me a
shop steward, and if they was to make me a shop steward,
if I see anybody with their hardhat or safety glasses off I
would tell the foreman, and they would write them up.

King testified that it was at a production meeting, not an em-
ployer campaign meeting, that Bennett made a comment about
Jackson’s possibly becoming a union steward. King was asked
and he testified:

Q. BY MR. BENSINGER: Tell us, please, what Mr. Ben-
nett actually said.
A. He told us we had better watch ourselves, because
Leroy Jackson is pushing to be a union steward; that he
going to be writing us Union fines.
Q. And do you recall what if anything prompted this
remark by Bennett?
A. Mr. Jackson made a statement that when the Union
comes into the yard, things are going to change around
here.

Walker testified that he was never present when Bennett
made such a remark to Jackson. Respondent, however, did not
call Bennett, and it advanced no reason for not doing so.421
Nevertheless, Jackson and King differ on the significant points
of what type of meeting it was (employer campaign meeting or
production meeting), what Jackson had done to prompt Ben-
nett’s remark (a question about stewards or a strong, prounion
statement by Jackson that things would be different when the
Union came into the yard), and what Bennett’s response was
(that, as steward, Jackson would cause warning notices for
safety violations or he would cause union fines). Moreover,
Walker appeared credible in his denial that he was present
when Bennett made such a statement. I accordingly discredit
the testimonies of both Jackson and King on this point.

421 Respondent also did not call Mallini, whom Jackson (but not
King) placed at the meeting in question. Walker, however, testified that
Mallini had left the State and his whereabouts at time of trial were
unknown. the General Counsel offered no evidence to controvert this
testimony.
AVONDALE INDUSTRIES

1365
At a meeting conducted by Simpson 2 days before the Board
election, both Jackson and King confronted Simpson. Jackson
testified that:

[Simpson] was speaking so much against the Union I
asked him did he ever work for a union. He said, “Never
have and never will.”
And I asked, “How could you speak on something that
you know nothing about?”

Simpson did not deny this testimony which I found credible.
Later in the meeting King confronted Simpson about an insur-
ance topic. King’s and Jackson’s testimonies about this con-
frontation are undenied, but King’s exchange with Simpson did
not involve the protected activities of the employees, and it will
not be further considered.
King and Jackson testified that, by the time of the June 25
Board election, they were regularly wearing “Union-Yes”
stickers on their hardhats, and they continued to do so thereaf-
ter.
(1) King’s and Jackson’s warning notices for safety and loi-
tering violations
An LSD is about 560-feet long. Points on an LSD are desig-
nated by side (port or starboard), deck (e.g., main and 01, 02,
06, above the main deck) and “frame.” Frames are structural
beams along the sides of the ship that run vertically from the
keel to the railing on the main deck. Frames are about 4 feet
apart; they are numbered from the bow of the ship to the stern.
(Therefore, the first frame of an LSD is at the bow, the 70th
frame is approximately amidships, and the 140th frame is at the
stern.) The “second deck” of an LSD is a 15-feet wide perime-
ter deck that is one level below the main deck. Below the sec-
ond deck are large spaces for, inter alia, the two-level engine
room, a one-level auxiliary machine room-II (AMR or AMR-
II), and a one-level “well deck” for storage of whatever the
LSD is transporting. The “floors” of the engine room, the AMR
and the well deck are at the same level; therefore, although the
AMR is one deck down from the second deck, its “floor” is two
levels below the second deck. The AMR and the second deck
are connected by a two-tier stairway on one side of the ship and
by an escape “tunnel,” which has a ladder, on the other.
King’s and Jackson’s Warning Notices for Safety and Loitering
Violations—the General Counsel’s Evidence
King testified that before July 30 he and Jackson usually
worked together. On July 30, however, they were assigned to
work separately. King testified that he was assigned to place
“blinds” in pipes on the second deck. Blinds are temporary
plugs that are placed in pipes to allow high-pressure tests for air
or liquid leaks in piping systems. (Blinds are used, rather than
just closing valves, when the valves are not to be pressurized.)
The job was in a hot area on a hot day. About 9 a.m., King
encountered a pipe into which he had difficulty inserting a
blind. The pipe was only 6 inches above the deck, and to work
with it King was required to assume kneeling and bending posi-
tions. King took off his hardhat and placed it on the deck as he
was working because, as he bent, his hardhat would slip off
because of the heat and his perspiration. As King further testi-
fied, he continued to keep his safety glasses on as he worked on
the recalcitrant pipe.
King further testified that running along the bulkhead, above
the system upon which he was working, were pipes of a sepa-
rate system that was being serviced that day by Jackson. As
King was struggling with the blind, Jackson entered the area
where King was working. King asked Jackson, a more experi-
enced employee, for help in inserting the blind into the pipe.
King and Jackson struggled with the problem pipe, but without
avail. Then Thompson, who had much more experience than
either King or Jackson, came along. (King testified that
Thompson was “checking his system,” a third piping system
that ran in the area.) King and Jackson asked Thompson for
help, and Thompson showed them how the job could be ac-
complished.
King testified that after the blind was inserted, he was over-
heated, and, “I sat down and took a break.” King did not put his
hardhat back on; also, he took off his safety glasses “because I
was wiping the sweat off my face.” At this time, further accord-
ing to King, Jackson also sat down to take a break. King testi-
fied that he could not recall whether Jackson also took off his
hardhat and safety glasses. King did testify that, when he and
Jackson sat down to take a break, Thompson also took a break
with them, but in a standing position. King testified that
Thompson, while taking this break, also took off his hardhat
and safety glasses. As he, Jackson and Thompson were taking
the break, then-leadman Lindsay (who was a foreman at time of
trial) walked by them. King was not asked what, if anything,
Lindsay said to the three employees as he passed.
King further testified that, after Lindsay passed by the three
employees, Walker and Mallini came to the area. Walker and
Mallini told Thompson to put on his hardhat and safety glasses.
They further told King and Jackson to come to a nearby room
in the passageway where they could be spoken to. King testi-
fied that, when they got to the room, he saw that Mallini had
two warning notices, one with his badge number and one with
Jackson’s. Mallini completed the warning notices. The warning
notice that Walker and Mallini issued to King has checked the
box for Avondale Employees’ Guide’s major offense-23 (“De-
liberate violations of safety, security or plant protection regula-
tions”). The text that Mallini entered on King’s warning notice
is: “Employee was not wearing safety hat or glasses in an open
area on board ship. He was verbally [orally] warned before
about this!” Walker, as well as Mallini, signed the warning
notice. King signed the warning notice, but before he did so, he
wrote in the employee comment section: “Leaning over in my
work, putting my blind in on my system. Hardhat kept slipping
off my head, so [illegible] took it off till I got finished. Safety
glasses in hand, wiping the sweat off my face when foremen
came.” King testified that he never before had been warned
about not wearing his hardhat or safety glasses, although his
foremen, including Bennett, Walker, and Mallini, had often
seen him do so.
On cross-examination King admitted that he and Jackson re-
ceived their assignments for July 30 separately, and he did not
hear any supervisor give Jackson an assignment that would
have brought him to the point where the supervisors found
Jackson. King further acknowledged that, when the supervisors
came into the passageway, he was sitting on a bucket to take
the break, and King further acknowledged that neither he nor
Jackson told Walker and Mallini that they were taking a break
because of the heat. Finally on cross-examination, King testi-
fied that he could not recall whether his assignment was on the
port or starboard side of the ship, or at what frame he was
working.
Jackson testified that on July 30 he was checking for leaks
on the piping of a portion of a system that ran from the AMR to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1366
the second deck where King was working. To do this, accord-
ing to Jackson, he started in the AMR and, “I would have to
walk the entire system out [up] from AMR-II to the second
deck.” Jackson testified that to get to the second deck he
climbed the ladder in the escape tunnel (as opposed to using the
stairway). Jackson testified that, because the system upon
which King was working was so close to the deck, he got a
bucket to sit on while struggling with King to get the blind
inserted. Jackson testified that, as he worked in the heat, his
safety glasses fogged up, so he took them off. Jackson further
testified that he also took off his hardhat. As he, King and
Thompson took a break following the insertion of the blind,
Jackson testified, none of the three had on a hardhat or safety
glasses.
The warning notice that Walker and Mallini presented to
Jackson has checked the box for Avondale Employees’ Guide’s
general offense-4 (“Wasting time, loitering or leaving the work-
ing place without permission”). In his written comment Jackson
stated that he had been following the piping system and that he
had been seated to help King. Jackson further testified that
employees, in production meetings, are frequently admonished
by supervisors to help other employees when they see that they
need it.
When asked what he did after he received the warning no-
tice, Jackson responded: “I left and went back into AMR num-
ber two.” Later in the afternoon, according to Jackson, he went
to a container where Walker was doing office work; according
to Jackson, Walker told him, “I have no problem with the way
you work. I didn’t want to write you up. We came on the boat
looking for Cornelius to write him up. He [you] just happened
to be there.” Jackson testified that he did not reply.
Jackson and King testified that they had repeatedly been told
by supervisors that, when they sensed that they were becoming
overheated, as they were that day, they were to stop and take a
break, and that was all that they were doing when found by
Walker and Mallini. They further testified that supervisors al-
lowed them often to work without hardhats or safety glasses,
the usual exception being when “safety men” were in the area.
On cross-examination, Jackson testified that he started work-
ing in the AMR somewhere between deck frames 98 and 118.
He further testified that King was working on the starboard side
of the ship when his work brought him to King’s area. Jackson
first testified that it was only 5 feet from where he had left the
escape tunnel on the second deck to where King was working.
After he gave this testimony, however, Jackson testified that he
could not estimate that distance. Jackson further testified that
when Walker and Mallini approached King, Thompson and
himself, Thompson was standing about 2 feet from himself and
King, also taking a break.
Thompson (vol. 159) testified that he, King and Jackson
were working on the starboard side, second deck, near the
stairway that comes up from the AMR. At the time, he was
working about 15 feet away on another system. He walked over
to King and Jackson and advised them how to get the blind
inserted, then he walked back to his work area and continued
working.422 Thompson testified that as he worked in his place,
and King and Jackson worked on the blind, the men continued

422 As Thompson testified: “I went back on my job what I was work-
ing on which was in the immediate vicinity, and they were working on
their job, and I was working on mine. . . . They were working taking a
valve out and installing a blind flange in the place where they took the
valve out.”
talking. As they were talking, and King and Jackson continued
working, King sat on the deck and Jackson was “leaning” over
the (low) pipe. Thompson did not testify that any of the three
men took a break of any sort. Thompson testified that when
Walker and Mallini came to the area, he was wearing neither
hardhat nor safety glasses. Thompson testified that King did not
have on a hardhat, which is not disputed. Thompson testified
that Jackson was also not wearing a hardhat when Walker and
Mallini approached, but Jackson was then wearing safety
glasses. Thompson further testified Walker and Mallini said
something about “glasses” and “area” to King and Jackson.
Walker and Mallini then told Thompson to leave the area,
which he did. As he left the area, Thompson testified, he saw
Lindsay approaching the supervisors, King, and Jackson. On
cross-examination Thompson testified that on July 30, he con-
tinued working until “an argument ensued” among King and
Jackson and Walker and Mallini.
King’s and Jackson’s Warning Notices for Safety and
Loitering Violations—Respondent’s Evidence
Walker (vol. 71) denied that he knew or suspected King or
Jackson of any prounion sympathies; specifically, he denied
seeing either employee wear prounion insignia. Walker testified
that on July 29, he found Jackson sitting on a bucket from 10 to
10:15 a.m., talking to King; at the time he decided to separate
King and Jackson. Walker testified that on July 30 he assigned
King to work port side, second deck, in the area of frame 128 of
the ship. Jackson was assigned to run a test on piping that ran
from the centerline in the AMR, to frame 89, starboard side, up
two levels to the second deck, and to frame 93, still on the star-
board side. (On the second deck, starboard side, Walker further
testified, Jackson was to test the system from frame 93 aft to
frame 98.) To get from the AMR to that area on the second
deck, an employee would logically use the two-level stairway
which, Walker testified, was on the starboard side. Walker
agreed with Jackson that there was an escape tunnel from the
AMR to the second deck, but Walker testified that the escape
tunnel is on the port side of the ship, not the starboard side as
Jackson claimed. Walker testified that on the afternoon of July
29 he took Jackson to the portion of the piping system that he
was to test on July 30, none of which was on the port side of
the ship.
On July 30, Walker further testified, he and Mallini were
making rounds when they came to King’s work area. When
they got to the area of frame 135, they stopped because, from
there they could see King and Jackson sitting on 5-gallon buck-
ets, doing nothing but talking. Jackson, Walker testified, was
wearing his hardhat and safety glasses; King (as King admitted)
was wearing neither. Walker and Mallini watched King and
Jackson talk for 5 minutes, doing no work; then the supervisors
approached the employees. Walker testified that he asked Jack-
son why he was so far away from his work area; Jackson made
no reply. Walker told Jackson that he was to get a warning
notice for being out of his work area. Walker further testified
that he asked King why he was not wearing a hardhat and
safety glasses; King made no reply. Walker testified, “I told
him I was going to give him a warning, a written warning, for
not having his safety equipment on.” Walker denied that King
was visibly perspiring and denied that the area was unusually
warm. Walker acknowledged that King and Jackson then wrote
the above-quoted comments on their respective warning no-
tices, but, as is undisputed, he testified that neither employee
AVONDALE INDUSTRIES

1367
said anything about taking a morning break, or that they had
stopped working because of the heat. Mallini further denied
that Thompson was in the area at the time, and he denied that,
later that afternoon, he told Jackson that he and Mallini had
been there looking for King and that he had not wanted to issue
a warning notice to Jackson.
When asked on direct examination why he wrote on King’s
warning notice “He was verbally [orally] warned before about
this,” Walker testified that, during the 30 days prior to the inci-
dent, “I had given Mr. King six verbal warnings prior to this
incident. . . . I had caught him repeatedly not wearing his safety
glasses and hardhat on the ship.”
Walker testified that he had previously issued warning no-
tices to other employees for not wearing safety glasses. To
prove the point, Respondent introduced three warning notices
that Walker issued to other employees on January 6, 1992; each
is for the employees’ not wearing safety glasses, and each is
issued under the Avondale Employees’ Guide’s general of-
fense-12 (“Violation of Company Safety Rules and Regulations
through carelessness”). When asked on direct examination what
his practice was regarding safety-equipment violations, Walker
answered: “Initially, I catch them the first time, it is a verbal
warning. I tell them to put their hardhat and safety glasses,
whatever the case may be, put their safety equipment back on,
and go about my business.”
On cross-examination, Walker confirmed that, by a “verbal
warning,” he meant that he tells the employee to put on his
hardhat or safety glasses, whichever the case may be. Walker
further testified that he issues warning notices when he sees an
employee “on repeated occasions” not wearing his safety
equipment. Walker further testified that he would tell employ-
ees “up to six times” to put on their safety equipment before
giving them a warning notice for not doing so. For the three
employees to whom he issued warning notices in 1992 for
safety-equipment violations, Walker testified that he issued “at
least” three oral instructions to two of them and four such oral
instructions to the other. Walker denied ever telling employees
to put on their safety equipment because there was a “safety
man” in the area. Walker further testified on cross-examination
that he was carrying the Avondale Employees’ Guide with him
when he and Mallini approached King and Jackson. Walker
was asked and he testified:

Q. And you read out to Mr. King the Company rule
that he violated?
A. Yes. I opened the book. I read the thing to him. I
read the General offense to him. He turned around. I asked
him if he understood it. He said, Yes.

Walker testified that, although Mallini drafted the warning
notices to King and Jackson, he reviewed them for correctness
before he signed them. As noted, the warning notice to King
was not issued under a general offense of the Avondale Em-
ployees’ Guide; it was written under major offense-23.
As noted, King testified that, before Walker and Mallini ap-
proached the area where he was working on July 30, Lindsay
walked by. As further noted, Thompson testified that, as he left
the area upon orders by Walker and Mallini, he saw Lindsay
approaching Walker, Mallini, King, and Jackson. And, as still
further noted, Walker testified that it was Mallini who accom-
panied him to King’s work area on July 30; Walker did not
place Lindsay at the scene in any way. Lindsay, however, testi-
fied (vol. 96) that it was he who accompanied Walker to King’s
work area on July 30, walking “side-by-side” with Walker;
Lindsay did not place Mallini at the scene in any way.
Lindsay testified that Jackson’s work area was not near
King’s work area; he testified that he knew this because: “I was
there when Mr. Walker lined him up that morning on what he
had to do.” Of course, Walker had testified that he lined Jack-
son up on his job on the afternoon of July 29. When asked on
direct examination if he knew why King and Jackson were
working separately on July 30, Lindsay replied:

Yes. In pipe testing, some time you work on a system
by yourself. If it is a small enough system, you work on it
by yourself. This shouldn’t take but just one to put a few
bonds in and do a pressure test on a system. You don’t
need no help in—if they are small, generally use just one
person on this particular system.

That is, Lindsay did not testify, as did Walker, that King and
Jackson had been separated because they had spent too much
time talking.
Further on direct examination, Lindsay was asked and he tes-
tified:

Q. What were Mr. King and Mr. Jackson doing when
you first saw them?
A. Well, Mr. King was sitting down on a bucket, as I
can remember. And Mr. Leroy, he was kind of like kneel-
ing beside him. Had his hardhat in his lap, and they were
just having a discussion.
Q. Was there anything else you noticed about Mr.
King?
A. He was sitting down, and he had his feet propped
up against the wall and they were just—in just a casual
conversation there.
Q. Did you notice anything about Mr. King’s shoes?
A. Well, the shoes was off, and he didn’t have his
hardhat on.

Walker, however, did not mention King’s shoes (in his testi-
mony or in the warning notice to King).
On direct examination, Lindsay testified that when he and
Walker approached King and Jackson, he heard Walker tell
Jackson that he should be in his work area, that King should put
on his shoes, hardhat and safety glasses, and that both employ-
ees should “get back to work.” On cross-examination, however,
Lindsay admitted that he heard nothing of what Walker said to
King and Jackson. Lindsay did testify however, that when he
and Walker got to King’s work area, King told him that he was
going to stop: “To see why Leroy was out of his area and why
King wasn’t working.” Lindsay further testified, “And I just
kept on going.” Further on cross-examination, Lindsay testified
that neither King nor Jackson was wearing a hardhat or safety
glasses when he and Walker walked to King’s work area.
King’s and Jackson’s Warning Notices for Safety and
Loitering Violations—Conclusions
I believe, and credit, King’s and Jackson’s testimony that
during the month before the Board election they began wearing
“Union-Yes” stickers on their hardhats, and they continued to
wear them thereafter. These prounion insignia necessarily
would have been seen by their supervisors such as Walker, and
I discredit Walker’s denial to the contrary. Moreover, it is fur-
ther undisputed that during an employer campaign meeting
conducted by Simpson, Jackson challenged Simpson by stating,
“How could you speak on something that you know nothing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1368
about?” Respondent’s animus toward such expressions of
prounion sympathies, especially Respondent’s animus toward
the expression of prounion sympathies that is entailed in the
wearing of prounion insignia, is established throughout this
decision. I therefore conclude that the General Counsel has
presented a prima facie case that the warning notices of July 30
were unlawfully issued to King and Jackson, and the burden
shifts to Respondent to demonstrate by a preponderance of the
evidence that it would have taken the same actions against King
and Jackson even in the absence of their known protected ac-
tivities. Respondent’s defenses must therefore be examined.
I find that the General Counsel’s witness Thompson was in
King’s work area, but as he testified, he did not take a break
with them; he kept working after he advised King and Jackson
how to get the blind inserted into the pipe.423 Thompson agreed
with Walker that the stairway from the AMR to the second
deck is on the starboard side of the ship. Jackson testified, how-
ever, that he came up the escape tunnel to get to the second
deck. Of course, the escape tunnel and the stairway are on the
opposite sides of the ship. Jackson, therefore, was on the port
side of the ship when he and King were found by Walker and
Mallini, as Walker testified. On the second deck, port side, the
escape tunnel is about 120 feet from the point at which Walker
and Mallini found King and Jackson, according to the credible
testimony of Walker. Jackson first testified that he was only 5
feet from the escape tunnel when he came to King’s work area,
but then he testified that he could not estimate the distance.
Jackson was unimpressive in this exercise. Moreover, Jackson
admitted that, after he and King were issued their warning no-
tices of July 30, he immediately went back to the AMR where,
he acknowledged, his assignment had started that morning.
Jackson did not testify that he had just finished his second-deck
work when King asked him for help; I do not believe that he
did; I do not believe that, when he came upon King, Jackson
was doing his assigned work. I credit Walker; I find that Jack-
son was on the port side of the ship, second deck, as Walker
described. That is, when he was discovered by Walker and
Mallini, Jackson was two levels away from, and he was on the
opposite side of the ship from, where he was supposed to be
working in the AMR; additionally, Jackson was at least 30 feet
toward the stern from the escape tunnel that he had used to get
to King’s (not his) work area.424 Finally on this point, I accept
the General Counsel’s testimony that employees are instructed
to help each other when the need arises, but there is no credible,
probative evidence that employees are encouraged, or even
allowed, to go far from their work areas to help other employ-
ees without supervisory permission. As well, Respondent’s
witnesses credibly denied that such is the case. I shall, there-
fore, recommend dismissal of the allegation that Jackson was
unlawfully issued a warning notice on July 30.
The issuance of the July 30 warning notice to King, how-
ever, requires a different result.
I do not believe King’s testimony that he had only taken off
his safety glasses to wipe perspiration; even if he had, this

423 I do not, however, believe Thompson’s testimony that neither he
nor Jackson were wearing hardhats or safety glasses.
424 The General Counsel asks that an adverse inference be drawn be-
cause Respondent did not call Mallini to testify. Again, however, the
General Counsel did not rebut Walker’s testimony that Mallini was no
longer employed by Respondent, that he had moved to another State,
and that his whereabouts were unknown. See Norbar, Inc., 267 NLRB
916, 918 (1983).
would not excuse his keeping his hardhat off when he began
taking a break. I further do not accept the General Counsel’s
argument that King and Jackson were merely taking a custom-
ary morning break when they were found by Walker and Mal-
lini; if they had been, they would have so stated to Walker and
Mallini, and they would also have so indicated in their com-
ments on the warning notices. Nor were King and Jackson tak-
ing a break because of the heat; if they had done so, they would
presumably have so indicated to Walker and Mallini, and they
would further have gone for some water. Even if their testi-
mony on these latter points is true, the supervisors saw nothing
other than the employees sitting and apparently loafing.
Nevertheless, Jackson was entirely credible in his testimony
that, after the warning notices were issued, he went to Walker’s
office where Walker told him that he and Mallini had been
looking for King, not him. The many discrepancies in Lind-
say’s testimony require me to discredit him entirely; he was not
present when Walker and Mallini came to the second deck and
issued the warning notices to King and Jackson. King, how-
ever, testified that Lindsay walked through the area shortly
before Walker and Mallini came there. There is a suspicion that
Lindsay (again, then a leadman) immediately went from King’s
work area to report to Walker and Mallini that King was not
wearing a hardhat or safety glasses, and then Walker and Mal-
lini came to the area with at least one warning notice that had
King’s badge number on it (as King credibly testified). Neither
Walker nor Lindsay testified to this innocent scenario, how-
ever, and no such finding can be made. The evidence, therefore,
is that Walker admitted to Jackson that he and Mallini had been
looking for King, and I find that they were; the issue is why.
Walker issued three warning notices for employees not wear-
ing safety glasses in 1992. He testified that he had told those
employees three or four times to put on their safety glasses
before he did so. Walker testified that he went beyond three or
four times with King; Walker testified that he had allowed King
to go a full six times in the preceding month without giving him
a warning notice. This I do not believe. I credit King and find
that Walker had never before told him to put on his safety
glasses or hardhat. Even if I am incorrect in this finding, how-
ever, Respondent offers no explanation of why the employees
of 1992 were issued warning notices under the less severe gen-
eral offense-12 of the Avondale Employees’ Guide but King’s
warning notice was issued under major offense-23. Certainly,
Walker did not testify that he issued King’s warning notice
under the major offense section of the Avondale Employees’
Guide because King was failing to wear both safety glasses and
a hardhat. Finally, even Walker testified that he read the “Gen-
eral Offense” to King when he issued him the warning notice;
at least by time of trial, therefore, Walker recognized that King
was guilty of only the lesser category of offenses under the
Avondale Employees’ Guide.
As I have concluded before, the aggrandizement of the of-
fense is indicative of unlawful motivation, and I find such mo-
tivation in this case. Because King had been given no prior oral
warning about his conduct, I conclude that Respondent has not
shown that it would have issued to him on July 30 any warning
notice even in the absence of his known protected activities.
Moreover, Respondent has not shown that it would have issued
the warning notice under the major offense section of the
Avondale Employees’ Guide even in the absence of King’s
known protected activities. Respondent therefore violated Sec-
tion 8(a)(3) by issuing the July 30 warning notice to King.
AVONDALE INDUSTRIES

1369
(2) King’s warning notice for quitting work early
On November 10, King was called to the office of General
Foreman John Whittington. According to King, Whittington
told King that, on November 9, General Foreman William
Fedrick had seen King coming off the ship before the 3:30 p.m.
whistle (as opposed to the noon whistle) blew. Whittington
presented King with a warning notice that had been signed by
Whittington and Fedrick. The warning notice is dated “11–10–
93.” The box for general offense-4 (“Wasting time, loitering or
leaving the working place without permission”) is checked. In
the space for “Date and Time of Offense” is entered “11–5–
93.” The text of the warning notice is:

Loitering. Wasting time. Employee has had verbal
[oral] warning prior to this warning notice. This is a final
warning. Next warning will result in termination.

King testified that he protested that he had not left the boat
early the day before. Whittington paged Federick to Whitting-
ton’s office. When he got there, Federick insisted that he had
seen King leave the ship early the day before. Whittington,
further according to King, told King that he accepted Feder-
ick’s word, and the warning notice would not be rescinded.
King denied that he had ever received an oral warning for
leaving the ship early. King further denied that he left the ship
early on any occasion during the week before November 10.
King was not asked on direct examination if there was any
discussion with Whittington or Fedrick about the entry on the
warning notice of “11–5–93” as the date of the disciplinary
offense.
Fedrick (vol. 71) testified that he was not present in the yard
on November 9. The General Counsel does not contest this
testimony which I found credible. Fedrick further testified that
he was present in the yard on November 5, the date specified on
the warning notice in issue. Fedrick testified that on that date,
about 20 minutes before the noon whistle (not the 3:30 p.m.
whistle) blew, he saw King standing outside the ship (again,
which was on the ground) doing nothing. Fedrick watched King
for several minutes, then left and got Whittington, King’s gen-
eral foreman, to come to the area. Whittington and Fedrick
watched King standing, doing nothing, for a few more minutes
when the noon whistle blew. Whittington was leaving the yard
at that point, but Fedrick approached King. According to
Fedrick, he told King that he would be receiving a warning
notice and: “I did tell him that would be his final warning, and
if it happens again, he would be terminated.” When asked why
he made the warning notice “final,” Fedrick replied: “Because I
had given him verbal warnings prior to this, and I felt that a
final warning was adequate.” Whittington testified consistently
with Fedrick.
King’s Warning Notice for Quitting
Work Early—Conclusions
November 5 was a Friday. On November 8, Whittington was
absent from the yard. As mentioned, Fedrick was absent from
the yard on November 9. November 10 was the first opportu-
nity, after noon on November 5, that Whittington and Fedrick
were together to sign a warning notice. King generally denied
that he quit work early during the week prior to November 10,
but he was not asked specifically about the date indicated on
the warning notice, November 5. Nor was King called in rebut-
tal to deny that on November 5, as Whittington and Fedrick
testified, he was caught leaving the ship early at noon. I credit
the testimony of Whittington and Fedrick and find that they
caught King as they described. I further discredit King’s testi-
mony that Whittington and Fedrick told him on November 10
that he was being issued a warning notice because of something
that had happened on November 9 (again, a date on which
Fedrick was not even present at the yard). The General Coun-
sel’s sole remaining argument of invalidity to the November 10
warning notice is that Whittington and Fedrick marked it “fi-
nal.” Although cross-examination showed that Fedrick was not
really sure about how many times he had spoken to King about
quitting work early, I do credit Fedrick’s testimony that he had,
on at least two occasions, found King leaving the ship before a
whistle blew, and he then warned King about his conduct. Un-
der these circumstances, I find that Respondent has demon-
strated that it would have issued to King the warning notice of
November 10 even in the absence of his wearing of prounion
insignia. I shall therefore recommend dismissal of this allega-
tion of the complaint.
10. Assignment of allegedly more onerous
work to employees
a. Mark Cancienne
(1) Cancienne’s reassignment from inside work
to outside work
On June 30, 1993,425 Mark Cancienne (vol. 22), a first-class
welder, was reassigned from an inside job on a ship that was in
the water to an outside job on the construction platens that are
out in the main yard. On March 1, after his reassignment, Can-
cienne was suspended for at least part of 1 day. The second
complaint, at paragraphs 96(a) and (b), alleges that the reas-
signment was to more onerous conditions and that by both the
reassignment and the suspension Respondent violated Section
8(a)(3). The General Counsel contends that Respondent reas-
signed and suspended Cancienne because of his known union
activities and expressions of sympathy which included his dis-
tributing, along with professional union organizers, prounion
handbills outside Respondent’s gates during the morning of the
June 25 Board election. The General Counsel further alleges
that, in violation of Section 8(a)(1), a supervisor threatened
Cancienne by telling him that his reassignment was the result of
his union activities. Also, the General Counsel introduced evi-
dence of two admissions by a supervisor that Cancienne’s reas-
signment was caused by his protected activities. Respondent
denies that the supervisor who decided to reassign Cancienne
had knowledge of Cancienne’s prounion sympathies. Respon-
dent further denies that the threat occurred. Respondent denies
the occurrence of one of the alleged admissions that Cancienne
was unlawfully reassigned; it does not deny the other, but it
argues that the supervisor was not privy to the reason for the
reassignment and that he was just speculating, at most. Respon-
dent further answers that Cancienne’s reassignment was caused
solely by business necessity and that his suspension was or-
dered when he was found to be loafing. Ultimately, I find and
conclude that Cancienne was both unlawfully reassigned and
suspended.
Cancienne, whose badge number was 5660, was a pipe
welder (as opposed to a structural welder). At the time of the
reassignment in question, Cancienne had worked for Respon-

425 All dates mentioned in Cancienne’s case are between April 1993
and March 1994, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1370
dent for 15 years. Cancienne worked on a ship that was in the
water at wet dock-3; Cancienne was then on the crew of Fore-
man Ernest (Little Foot) Foret Jr.; Foret Jr., reported to General
Foreman Ernest (Big Foot) Foret Sr. Foret Sr., reported to
Welding Department Superintendent Norris (Black) Pertuit.
Cancienne testified that he distributed handbills with union
representatives at Respondent’s gate for about 30 minutes be-
fore work on June 25, the date of the Board election. Standing
on the levee, overlooking the activity that morning, were Pertuit
and Foret Sr. (Pertuit and Foret Sr., did not deny this testimony;
in fact, they acknowledge knowing that Cancienne was a
prounion employee.)
Cancienne testified that on June 30, Foret Jr., told him to re-
port to Foreman Robert (Bobby) Ramirez in the platen area.
Cancienne did so the next day. On July 2, according to Can-
cienne, as he was working:

He [Ramirez] approached me, told me he thought I had
a bad attitude.
I told him I was upset about being reassigned. . . .
He said, “You were sent out here because you are pro-
union. If you tell anyone I said that, I will deny it; it will
be your word against mine.”
He left; I went to work.

Based on this testimony by Cancienne, paragraph 60 of the
second complaint alleges that Respondent, by Ramirez, “told its
employees that an employee had been transferred to a more
onerous position because he aided or supported the Union.”426
As discussed below, Ramirez denied this testimony by Can-
cienne.
Cancienne continued to work in the platen area through time
of trial. Cancienne did not testify that his work in the platen
area was, in any physical way, more onerous than his work on
the ships. He did testify that his work on the platens is normally
in uncovered areas, whereas his work on ships was usually in
covered conditions. The result, according to Cancienne, has
been that he has worked fewer hours because the outside work-
ers are more subject to “rain-outs” than workers on ships. A
rain-out is called when a supervisor believes that it is raining
too hard to work (either safely or productively, or both). Can-
cienne maintained personal records that indicate that he was
rained out on several days while working on the platens. Can-
cienne testified that no other welders of whom he knew were
reassigned from ships to the platens at the same time as he.
Cancienne testified that three times during the 2 years prior to
the Board election, he was assigned to work in the platen areas,
but only for periods of 1 week to a month.
Lawrence Arabie is a 24-year employee who, for a time, was
permitted the confidences of certain welding department super-
visors. Arabie testified to supervisory admissions of unlawful
animus toward Cancienne both before and after the June 25
Board election. Arabie testified that once before the election,
when he was working, he was called aside by Foreman Joe
Alvarez. Alvarez told Arabie that another employee had said
that Arabie had been distributing union authorization cards.
Arabie denied the report. Then, according to Arabie:

426 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against Cancienne, as well as
the charge in Case 15–CA–12171–1.
And Mr. Alvarez told me that Avondale—that the La-
bor Board had turned over a list of names to Avondale of
people that signed cards. And he said, “Avondale has sub-
poenaed them and the Labor Board had to turn them over.”
. . .
And he said the list of names was going to be given to
the superintendents that these people work for. “These
people will probably lose their jobs.” . . .
And I told him that I didn’t have anything to worry
about; that if my name was on that list, he put my name on
that list.
And he told me that Avondale knew that Dago [welder
Ronald Taylor, not an alleged discriminatee] and Mark
[Cancienne, the only welder named “Mark” referred to]
was supporting the Union, and that he had orders to put
pressure on them and harass them.
And he said he wasn’t going to—he didn’t intend to
harass them. He wasn’t going to harass them. He said that
as long as they did their work, he said, “If Big Foot
wanted to come and harass them, he could come and har-
ass them.”
And he said that he was supposed to send me to
[Foreman] Mr. Gralyn Danos so Mr. Danos could harass
me and put pressure on me.
And I asked him, I said, “Joe, I said, who told you to
send me to Mr. Danos?”
And he said, “Big Foot.”
Well, after I said that, he said he was not going to send
me. He was going to try and hold onto me for a while.
And he told me not to tell anybody what we talked
about. He said it was my word against his, and if I said
anything, he was going to deny it.

Respondent did not call Alvarez to testify; Arabie was credible
in this testimony, and I do credit it.
Arabie testified that on June 28, the first workday after the
Board election, after the noon whistle had blown, he walked
down a ship’s gangway and he met Cancienne; he shook hands
with Cancienne and exchanged a few words. When he turned
from Cancienne, Arabie saw Alvarez looking at him and Can-
cienne. Arabie and Alvarez walked separately toward an office
where foremen (and, at that time, Arabie) often took lunch.
Arabie testified that when he got to the office Alvarez was
standing near the doorway talking to Foreman Gary Plaisance.
According to Arabie:

And Mr. Plaisance said, “Well, he must be a union
supporter.”
And I asked him if it was a crime to shake hands with
another man.
And Mr. Alvarez made a remark that, “Yes, you can
lose your job. Big Foot is going to have to hear about
this.”

Arabie testified that he then went into the office; present were
Foremen Alvarez, Malcom Orgeron, Plaisance, Gralyn Danos,
and Foret Jr. According to Arabie:

Mr. Alvarez asked all the other supervisors that what
did they think about a man shaking a union person’s hand.
And Mr. Orgeron laughed. At first, he said, “Who are
you speaking about?”
Mr. Alvarez look at me and said, “Lawrence was shak-
ing 5660, Mark’s, hand.”
AVONDALE INDUSTRIES

1371
And Mr. Gralyn Danos turned and he looked at me and
he says he had a feeling I was supporting the Union. And
he says, “I will tell Big Foot about this.” . . .
And Mr. Alvarez turned, he looked at me again, and he
says, “Why don’t you be a man and admit that you sup-
ported the Union?”
And I got upset about it, and I told him to tell who they
want to tell. Do what they want to do. I said, “I don’t see
anything wrong with me shaking another man’s hand.”

As well as Alvarez, Respondent did not call to testify Orgeron,
Danos, or Plaisance. Respondent did call Foret Jr., but Foret Jr.
did not deny this testimony by Arabie. I credit Arabie.
Arabie testified to another conversation in the office that he
placed at July 1. Present were Orgeron, Alvarez, Plaisance,
Ramirez, and Foret Jr. According to Arabie:

Mr. Alvarez looked at Ernest Foret, Jr., and he said
that, “Big Foot wants you to assign Clock Number 5660,
Mark, to Bobby Ramirez on the platen.”
And Bobby Ramirez said, “I don’t need any more pipe
welders. Why is he sending him to me?”
And Mr. Alvarez said, “Big Foot wants you to wring
him out because of his union activities.”

This testimony was partially denied by Foret Jr., as described
below.427
On day-59 of the hearing, the General Counsel called Rami-
rez as an adverse witness. In that examination, Ramirez admit-
ted talking to Arabie from time to time. Then Ramirez was
asked and he testified:

Q. Did you say anything back to him [Arabie] to the
effect of, “See, like Mark, between you and me, Mark, that
guy that is working in the—that is working for me that is
in the Union, why do you think they took him off the ship?
He was a union man. They stuck him with my ass, wanting
me to burn his ass, and I never did.”
A. I don’t recall talking to him like that, no.
Q. Now, do you know—do you think you may have
said something like that?
A. I definitely didn’t say anything to him like that.

Then the General Counsel played for Ramirez a tape recording
that was apparently made by Arabie after Arabie had testified
on day-32 of trial, October 12, 1994.428 After the playing of
Arabie’s late-1994 tape recording, Ramirez was then asked, and
he testified:

Q. [By Mr. Bensinger]: Do you remember, during
1994, you said to Mr. Arabie words to the effect of, “Do
you see, like, Mark, between me and you, Mark, that guy
that is working for me in the Union, why do you think they
took him off the ship? He was a union man. They stuck
him with my ass, wanting me to burn his ass, and I never

427 Of course, Cancienne testified that by July 1 he had already been
reassigned. There is no issue in this; either Arabie or Cancienne had the
dates confused. The MCRs that would show the exact date of Can-
cienne’s reassignment were not offered by Respondent, as discussed
infra.
428 The only recording that Arabie had made by day-32 was then
turned over to me for in camera inspection upon Respondent’s request
under Sec. 102.118 of the Board’s Rules and Regulations. Moreover,
when he testified on day-32, Arabie made no mention of the conversa-
tion the recording of which was played for Ramirez on day-59.
did.” . . . Do you recall making a statement like that, to
that effect, to Mr. Arabie in 1994?
A. Well, I don’t recall, but I heard it on there. I guess I
did.
Q. That was your voice?
A. Yes. . . . There is no doubt about it.
Q. [By Mr. Bensinger]: Well, actually, that man
Mark—Mark is Mark Cancienne. Isn’t that true?
A. Yes.

When asked why he had previously denied stating “any-
thing” of that nature to Arabie, Ramirez first answered that
he had not remembered doing so; then Ramirez testified that
he and Arabie had been friends for years, “And [on the tape
recording] I am trying to give him some information to re-
lieve him because he was under—acting like he was nervous.
And that is the bottom line.”429
Cancienne’s Reassignment to outside
Work—Respondent’s Evidence
When he was called in Respondent’s case, Ramirez (vol.
111) testified that, at the time that Cancienne was reassigned to
him, he needed “four or five” pipe welders in addition to the six
or seven that he already had working under him in the platen
area. Ramirez testified that, to get additional pipe welders, he
went to his general foreman, Butch Cole, and: “I asked him for
some more pipe welders.” Later that day Cole told Ramirez that
“some welders” would be sent to him the next day from an
LSD. On the next day, Cancienne arrived with another welder
whose name Ramirez could not recall. Ramirez testified that: “I
received two that morning, I think, and then two or three weeks
later, I got a couple more.” Ramirez testified that could not
remember their names either. (When asked why he could re-
member Cancienne’s name but he could not remember the
names of the other pipe welders who were assigned to him,
Ramirez replied, “Because I knew, you know, he was involved
in the Union and stuff.”)
Ramirez testified that when Cancienne arrived at the platen
area, he had a frown on his face. Further according to Ramirez:

When he got off the truck, I sensed that he was very
negative and real rough with me. And I like to—I ap-
proach my guys with a good, positive attitude and most of
the time with a smile on my face; not all of the time, but
most of the time.
Anyway, during the day when I was making the
rounds, telling him what to do, he kind of buffered me up
again, you know, again with his attitude.
And then, like I said, he was kind of buffing me up,
and I said, “Wait a minute. What is your problem?”
He said, “Well, I know why I was sent here.”
And right off the bat I says, “I don’t care why you was
sent here. I needed pipe welders. I know you are involved
in the Union. I have seen you out on the gate. I am not

429 In his discussion of this day-59 testimony by Ramirez, Respon-
dent’s counsel argues that I erroneously denied him opportunity to
examine “Arabie’s tape.” (Br. page “Welding-23.”) Respondent, how-
ever, cites only a ruling that I made on the tape that had been produced
for in camera inspection on day-32 of trial (as mentioned in the preced-
ing footnote). After the General Counsel completed his examination of
Ramirez on day-59, however, Respondent made no request for further
time to examine the tape that had then been played.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1372
here to hurt you. I am just here to do a job. I am not your
problem, Mark.”
I says, “You can go tell anybody you want that I am
telling you this. It don’t make me no difference.”
[H]e was real buffy with me and negative. I got to
work with these guys
[A]nd he kind of buffered up a little bit with a real
negative attitude, and I just felt it was my place to com-
municate with this man, you know, on a better relationship
with him.

Ramirez denied telling Cancienne that he had been assigned to
work under Ramirez because he was prounion, and he denied
that he told Cancienne that he would deny saying what he had
just said. Ramirez was further asked why he had told Arabie:
“He [Cancienne] was a union man. They stuck him with my
ass, wanting me to burn his ass, and I never did.” Ramirez testi-
fied that he had only been “running off at the mouth.”
Ramirez further denied that any of his supervisors told him
that Cancienne was assigned to his supervision because of his
union support, and he denied that he told Alvarez that he could
not understand why he was being sent a pipe welder. Although
he generally denied that he knew beforehand that Cancienne
was being sent to him, Ramirez did not deny Arabie’s specific
testimony that Alvarez told him (Ramirez) that Foret Sr. was
sending Cancienne to him because: “Big Foot wants you to
wring him out because of his union activities.”
On cross-examination, Ramirez denied that he had testified
that Cancienne had “buffed” him in any way, and he testified
that he did not know what such a term would mean. Ramirez
did testify on cross-examination that Cancienne had been
“rough” with him, and that Cancienne had appeared “nervous,”
and that is why he spoke to Cancienne about his attitude. Fur-
ther, Ramirez acknowledged that he had seen Cancienne dis-
tributing handbills for the Union even before the day of the
Board election.
Cole, the general foreman to whom Ramirez made his al-
leged request for additional manpower, did not testify. Pertuit
(vol. 104) testified on direct examination that employees are
frequently reassigned from ships and about the yard; indeed,
without being asked, Pertuit testified: “[Y]ou can move four
times in a week.” Pertuit further testified, “We reassign people
every day.” Pertuit was asked what he remembered about Can-
cienne’s reassignment, and he testified:

I remember when we discussed something that was
done at 6:30 in the morning with the general foremen. . . .
Butch Cole asked for a pipe welder, and I told Ernest
Foret, Sr., to send him a pipe welder. . . . I just made sure
that I told him [Foret, Sr.] to send a pipe welder that could
handle the kind of work he [Cole] had.
[H]e [Foret, Sr.] said that he would take care of it.

Pertuit testified that the names of no employees were men-
tioned in this discussion. Pertuit further testified that pipe weld-
ing is a “special art” and only about 20 percent of the 400-odd
welders in the welding department can do it.
On cross-examination, Pertuit reaffirmed that Cole asked for
“a” pipe welder and he told Foret Sr. to send Cole “a” pipe
welder. Pertuit testified that over the many years he has dis-
posed of as many as nine requests such as Cole’s a day. When
asked why he particularly remembered this single request by
Cole, Pertuit testified:

Well, one thing we accent is he was transferred on the
platen. He is one of the guys that they transferred, that
Foret took off and put on the boat. I mean, once somebody
brought it up in here [at the trial] or wherever it was
brought up—that particular fellow, that is it.

Pertuit further admitted on cross-examination that the preferred
practice is to keep the welders who work on the ships that are in
the water on those ships.
When Foret Sr. was called by Respondent (vol. 100), he tes-
tified that he made the decision to reassign Cancienne to the
platen area; Foret denied that he ever discussed his reasons for
transfer with Ramirez or Alvarez. Foret further testified on
direct examination that he prefers to keep the same pipe weld-
ers on the ships that are in the water because:

Well, at wet dock-3, I keep the same welders I had
with experience due to the fuel tanks, fuel lines on the
ship. After it hits the water and put fuel on it, it is standing
like a time bomb. You got to know what you are doing. I
use the same welders over and over to do the job to deliver
the ship.

Foret acknowledged that, of the 400 employees in the welding
department, there were only 8 to 12 pipe welders whom he
keeps on the ships that are in the water, and, when he was se-
lected for reassignment to the platens, Cancienne had been one
of them for years. Foret testified, however, that reassignments
such as Cancienne’s occurred “daily.”
Foret Sr. further testified that at a supervisors’ meeting, Per-
tuit told him that “[T]omorrow he needed a pipe welder to go to
Butch Cole.” Foret testified that he decided at that meeting that
Cancienne would be the pipe welder that he sent to Cole. When
asked why he selected Cancienne, Foret replied, “The man
could handle the job. That is why I chose Cancienne.” Then
Foret was led to testify that he selected Cancienne because he
had previously worked under Cole in the platen area.
On direct examination, Foret Sr. testified that Cancienne was
not mentioned by name in the supervisors’ meeting in question.
On cross-examination, however, Foret testified that he told
Pertuit and the other general foremen who were present that
Cancienne would be the pipe welder that he would send to
Cole. Finally, Foret acknowledged on cross-examination that he
had seen Cancienne wearing prounion T-shirts early in the or-
ganizational campaign.
As mentioned above, at the time that he was reassigned from
the ship at wet dock-3, Cancienne was working under the direct
supervision of Foreman Foret Jr. Foret Jr. testified (vol. 113)
that Foret Sr. told him that he should send one pipe welder to
Cole; Foret Sr. suggested that Cancienne be sent because he
had previously worked with Cole, but Foret Sr. left the selec-
tion of which pipe welder to send to the platens up to him.
Foret Jr. testified that he had three pipe welders at the time; he
had worked previously with the other two, but not Cancienne,
and for that reason he decided to keep the other two. Foret Jr.
denied that, at the time, he knew of any prounion sympathies
that Cancienne may have held. Foret Jr. further denied, gener-
ally, that any supervisor told him that Cancienne had been reas-
signed to the platen area because of his prounion sympathies,
but Foret Jr. did not deny that, in his presence, Alvarez told
Ramirez that Foret Sr. wanted Ramirez to “wring” Cancienne
out because of his union activities.
Although it is undisputed that pipe welders who work on
ships sometimes get rained out, Foret Jr., Foret Sr., and Pertuit
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acknowledged that pipe welders stand a better chance of being
rained out while working in the platen area than they would
while working on ships.
Cancienne’s Reassignment to Outside Work—Conclusions
As mentioned in the discussion of the case of discriminatee
Collins, Ramirez admitted in a pretrial affidavit that: “I recall
saying to Collins that I would do what I could to keep the Un-
ion out.” That unqualified statement to Collins apparently in-
cluded lying under oath because Ramirez did exactly that. Ra-
mirez categorically denied that he said “anything” to Arabie
such as “Mark, that guy that is working for me in the Union,
why do you think they took him off the ship; he was a union
man; they stuck him with my ass, wanting me to burn his ass,
and I never did.” (Ramirez finally admitted saying this, but
only after he heard his voice on a tape recording.) The credibil-
ity to be made at this point is whether Ramirez also lied under
oath when he told Cancienne essentially the same thing that he
told Arabie. I find that he did. Aside from his demonstrated lie
under oath (that he had not told Arabie “anything” like what he
did tell Arabie), Ramirez impressed me unfavorably when he
stated several times on direct examination that he spoke to
Cancienne only because Cancienne had “buffered” him, yet on
cross-examination Ramirez denied that he used such a term and
that he did not know what it meant. Also, Ramirez was particu-
larly incredible when he testified that he told Cancienne that he
did not care who Cancienne told about their conversation. Of
course, Ramirez had no reason to say this, and the transparent
lie was obviously designed to reply to Cancienne’s testimony
that Ramirez had told him that he would lie about the threat that
he had just made. I credit Cancienne who made a far more fa-
vorable impression than did Ramirez. I find that after Can-
cienne reported to the platen area Ramirez told him that:
“[Y]ou were sent out here because you are pro-union.” I there-
fore conclude that, as alleged, Respondent, in violation of Sec-
tion 8(a)(1), by Ramirez, on or about July 1, 1993, told its em-
ployees that an employee had been transferred to a more oner-
ous position430 because he aided or supported the Union.
In addition to Ramirez’ telling Arabie and Cancienne that
Cancienne had been reassigned to the platen area because of his
union activities, it is undisputed that Alvarez told Ramirez the
same thing in the presence of Foremen Foret Jr., Orgeron, Plai-
sance, and Danos; more specifically, Alvarez told Ramirez that
“Big Foot wants you to wring him out because of his union
activities.” Neither Foret Jr., nor Orgeron, nor Plaisance, nor
Danos, nor Ramirez denied that Alvarez said this, and I find
that he did. These statements, especially when viewed in the
light of the overall evidence of Respondent’s animus, at least
prove a prima facie case that the reassignment of Cancienne to
the platen area was made for unlawful reasons. Another factor
requiring the conclusion that the General Counsel has presented
a prima facie case is that the reassignment of Cancienne came
on the third (or at most fourth) workday following Cancienne’s
open and obvious union activity of distributing prounion hand-
bills at Respondent’s gate on the morning of the Board election.
The burden therefore shifts to Respondent to demonstrate by a
preponderance of the evidence that it would have taken the
same actions against Cancienne even in the absence of his

430 Working in a position that is more subject to layoff, or suspen-
sion, because of the weather is necessarily more onerous; it is psycho-
logically more onerous, if not physically.
known protected activities. Respondent’s defenses must there-
fore be examined.
Cancienne acknowledged that, in the past, he had been reas-
signed to the platen area. The fact that the reassignment was not
unprecedented, however, does not resolve the issue. No matter
how many times that Cancienne had previously been assigned
to the platen area, the issue is why he was assigned there on or
about July 1. Moreover, none of Cancienne’s prior assignments
were made on a permanent basis, as was the assignment of July
1. That is, the issue is why Cancienne received this permanent
assignment on July 1.
It is undisputed that when he heard that employee Arabie had
shaken the hand of union supporter Cancienne, Alvarez re-
sponded that Foret Sr. “is going to hear about this.” When
Foreman Danos heard that Arabie had shaken the hand of
prounion Cancienne, he also announced that he would inform
Foret Sr. It is further undisputed that before the Board election,
Alvarez told Arabie that Foret Sr. was pressuring him to put
pressure on Cancienne and another employee because they
were then supporting the Union. Alvarez further told Arabie
that Foret Sr. was pressuring him to reassign Arabie to Foreman
Danos so that Danos could harass and pressure Arabie. This
undenied testimony demonstrates that Foret Sr. had led his
foremen to believe that he wanted to know about who was even
friendly with prounion employees, and Foret had let his fore-
men know that, in order to defeat the employees’ organizational
attempt, he was willing to use the tactic of ordering prounion
employees to be reassigned to positions where they could be
pressured, or otherwise harassed.
Ramirez testified that he told Cole that he needed “four or
five” pipe welders and that he got two (including Cancienne)
immediately and two more about 2 weeks’ later. Cole did not
testify, and there is therefore an initial failure of Respondent to
corroborate Ramirez’ testimony in this regard. Moreover, Per-
tuit testified (several times) that Cole only asked for one pipe
welder and he told Foret Sr. to send Cole only one pipe welder.
Foret Sr. testified that Pertuit only asked for one pipe welder
and he told Foret Jr. to send one pipe welder to Cole. Finally,
Foret Jr. testified to sending only one pipe welder to Cole. As
well as the absence of credible testimony to support Ramirez’
testimony that he needed, requested and received multiple pipe
welders,431 there is an absence of documentation that was read-
ily available had Ramirez’ testimony been true. Although it
introduced hundreds of other MCRs to prove various points,
including staffing at various times, Respondent did not offer the
MCRs of Ramirez to show that he received pipe welders in
addition to Cancienne, and Respondent did not offer the MCRs
of any other foremen to show where such pipe welders would
have come from. I reject the testimony of Ramirez that several
pipe welders, in addition to Cancienne, were sent to him in the
period in question. I find that Cancienne was singled out for
reassignment to the platen area.
Foret Sr. testified that he made the decision to reassign Can-
cienne to the platen area at the general foremen’s meeting with
Pertuit. On direct examination Foret testified that Cancienne’s
name was not mentioned at the meeting; on cross-examination,
however, Foret testified that he announced his decision to reas-

431 I reject certain testimony by Foreman Sterling Dolese that he wit-
nessed Ramirez telling Cole that he needed pipe welders; cross-
examination showed that Dolese’s recollection (which was also unsup-
ported by available documentation) only went to March 1993.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1374
sign Cancienne to all who were there. Pertuit testified, how-
ever, that in the meeting there was no mention of names of
employees who were to be, or might be, reassigned. I do not
believe either version; nor do I believe Pertuit’s testimony that
he remembered Cole’s request for one pipe welder when such
requests for reassignments are made hundreds of times a
year.432 I find that Foret made the decision to reassign Can-
cienne to the platen area without a request from Cole (or Rami-
rez through Cole).
Foret Sr., after being led, testified that he selected Cancienne
because Cancienne had before worked for Cole. Foret did not,
however, testify that Cancienne was the only pipe welder on the
ships who had worked for Cole, and I do not believe this was
the real reason that Foret selected Cancienne for reassignment.
Contradicting his father, Foret Jr., testified that he really made
the decision to reassign Cancienne. Foret Jr. testified that he
selected Cancienne because he (Foret) had worked with the two
other pipe welders whom he then supervised. Foret Jr. was
unsure of those pipe welders’ names, and, certainly, Respon-
dent did not offer the MCRs that would have showed their
names and would have allowed scrutiny of Foret Jr’s. testimony
on this point. Finally, Foret Sr. described ships in the water as
“bombs” because of the welding that was being conducted; for
this work, he acknowledged, he usually liked to keep Respon-
dent’s most experienced pipe welders, of which Cancienne was
one. Pertuit also admitted that Respondent prefers to keep the
same welders on ships that are in the water. Therefore, assum-
ing that there was need for only one pipe welder to be reas-
signed to Ramirez, and further assuming that the pipe welder
had to come from the ships, and further assuming that Foret Jr.
was the only foreman on the ships who had pipe welders, the
institutional preference (as admitted by Pertuit and Foret Sr.)
was for the most experienced employee to remain on the ships,
not the employee who had worked with the foreman the most
time.433 Moreover, the latter assumptions were not, and could
not have been, valid; this is because the first assumption (that
Ramirez needed one pipe welder) was not proved. In his excess
of claiming need for “four or five” welders, when only one pipe
welder was shown to have been reassigned, Ramirez was com-
pletely incredible. I find that, as Arabie testified, when he first
heard that Cancienne was being reassigned to his crew, Rami-
rez told Alvarez that he did not even need pipe welders. I fur-
ther find that Ramirez would not have said such a thing had it
not been true.434
I therefore reject the unsupported, incredible, testimonies of
Ramirez, Pertuit, and Foret Sr. that there was need for a one-
man reassignment and that Cancienne was selected for nondis-
criminatory reasons. That is, Respondent has not shown by a
preponderance of the evidence that it would have reassigned
Cancienne to the platen area on July 1 even in the absence of

432 Pertuit’s testimony that he remembered Cole’s routine request
only because of the ensuing litigation is essentially an admission that he
was testifying from something other than an honest memory.
433 Foret Jr. was the only supervisor who denied knowledge of Can-
cienne’s union activities, and his testimony that he made the decision to
reassign Cancienne appears only to have been a vehicle for a denial that
the General Counsel had presented a prima facie case.
434 I simply do not believe Foret Sr.’s testimony that he did not dis-
cuss the reassignment of Cancienne with subordinate foremen other
than Foret Jr. It is obvious to me that he at least told Alvarez, and Alva-
rez told the other foremen (and Arabie) of Foret Sr’s. true reason for
selecting Cancienne.
his known protected activities. I therefore conclude that by that
reassignment Respondent violated Section 8(a)(3).
(2) Cancienne’s “rain-out” suspension
It is undisputed that there was a heavy rain on March 1, and
many employees were rained out because they were in areas
that were not sheltered. Cancienne testified, however, that he
was assigned to work in a sheltered area on platen 6 that day.
About 11 a.m., Cancienne was approached by his foreman for
that day, Sterling Dolese. According to Cancienne:

He said he had been told make sure I was especially
selected for a rain out. . . . He asked me what I done to piss
them off.
I told him I didn’t know.

Cancienne signed out at 11:10 a.m., and was suspended for the
rest of the workday. It is undisputed that none of the other
members of Dolese’s crew, about five employees, were told to
leave for the day.
Cancienne’s “rain-out” Suspension—Respondent’s Evidence
Dolese (vol. 137) essentially corroborated Cancienne’s tes-
timony about what he said to Cancienne on March 1. Dolese
testified that when it began raining heavily he ordered Can-
cienne and three other welders to work in an area that was shel-
tered. Dolese did not follow the employees to the sheltered area
at that time. Dolese testified that about 11 a.m., General Fore-
man Cole appeared at Dolese’s office and told Dolese to go and
“send 5660 home immediately.”435 Dolese testified that:

I argued with him for about five minutes saying that
the man is in a dry area; that it was wrong; I shouldn’t be
going out there and knocking him off; he is in a dry
area.436

Dolese first testified that Cole replied only: “You have your
orders; do what I just told you to do.” Dolese (although only
after blatant leading for which Respondent’s counsel apolo-
gized), added that Cole also stated that he was telling Dolese to
suspend Cancienne because, “Black Pertuit called.” Dolese
further testified that, during their 5-minute argument, Cole gave
him no reason for the suspension of Cancienne.
Dolese further testified that after the argument and Cole’s
departure, he walked out of his office and “stood in the rain for
about 10 minutes.” Dolese testified that he did this because, “I
was trying to decide what I should do, whether I should go
knock the man off or just do what I was told to do.” Then, ac-
cording to Dolese, “I went in there and said [to Cancienne], I
don’t know who the hell you pissed off, but I am sending you
home.” Later that day he approached Cole and told Cole that he
was worried about what he had done to Cancienne. Cole replied
that Dolese was just to follow orders. Dolese further testified
that a month later (after Dolese had been contacted about the
charge that had been filed on behalf of Cancienne), he ap-
proached Pertuit and asked why he had been told to suspend
Cancienne. According to Dolese, “And he says that during that
morning when it was raining, he witnessed Cancienne under-

435 Again, 5660 was Cancienne’s badge number. Also, to send an
employee “home” was shop argot for suspending him (but, actually,
Respondent’s supervisors probably did not care where the employee
went after he left the plant).
436 The Tr., vol. 137, p. 34,477, L. 20, is corrected to change “I was
wrong” to “it was wrong.”
AVONDALE INDUSTRIES

1375
neath the unit not welding, wasting time.” Dolese testified that,
on previous occasions, he had suspended employees who were
loafing in sheltered areas when rain-outs were called. On cross-
examination Dolese admitted that, at some times in the past,
when he had found members of his crew not working when
they should be, he ordered them to get to work, but he did not,
on those occasions, suspend the employees.
Pertuit testified that on March 1, as he rode about the platen
area, he saw several employees standing around, watching the
rain; he called their general foreman (whom Pertuit did not
name) and told that general foreman to “go knock those people
off,” or suspend them (or lay them off) for the remainder of the
day. Then Pertuit drove to the area of platen 6. He saw an em-
ployee whom he could not recognize because the employee had
his back turned, but he could identify him as a welding depart-
ment employee by the employee’s (color-coded) hardhat with
an “05” on it. Pertuit testified that the employee was doing:
“Nothing. Looking at the rain. . . . Just standing there looking at
the rain.” Pertuit further testified that he watched the employee
doing nothing for: “Two minutes, two and a half minutes.”
Pertuit called Cole who was the general foreman over that
platen area. Pertuit told Cole to “go check who was working in
that area and knock him off because he wasn’t producing
work.” When asked what Cole replied, Pertuit responded: “Yes,
he probably disagreed with me a little bit.” Pertuit insisted.
Further according to Pertuit, Cole called him back about 15 or
20 minutes later. According to Pertuit, Cole told him that the
employee that he found was Cancienne; Pertuit testified that
this was the first that he knew that the employee on platen 6
whom he had seen loafing was Cancienne; Pertuit further testi-
fied:

He [Cole] said that this man [Cancienne] could work
where he was at.
And I told him, “No, he wasn’t working where he was
at because I saw he wasn’t working.” So I told him to
knock him off.

Pertuit did not indicate in his testimony how long it was that he
watched the sheltered employees at other platens not working
before he called their (unnamed) general foreman; nor did Re-
spondent offer testimony that, on that day, the other general
foreman actually suspended those employees and that they did
so without warning. On cross-examination, Pertuit testified that
Cancienne was “sitting” during the 2 minutes that he observed
him.
Cancienne’s “rain-out” Suspension—Conclusions
The General Counsel first argues that Respondent has not es-
tablished that Pertuit saw Cancienne on platen 6 on March 1.
The General Counsel points out that Pertuit testified that he saw
Cancienne “in” the open end of a unit that was on platen 6, but
Dolese testified that, when he questioned Pertuit about the
event a month later, Pertuit told him that he had seen Cancienne
“underneath” the unit which was up on a jig or platform. Also,
Pertuit testified on direct examination that Cancienne was
standing to watch the rain, but on cross-examination Pertuit
testified that Cancienne was sitting. The differences do raise
some suspicion, but, absent rebuttal testimony by Cancienne
that he did not pause for 2 minutes (either in or under the unit)
to do nothing but watch the rain, I find that Pertuit saw Can-
cienne doing so.
Nevertheless, a 2- (or 2-1/2) minute pause for employees
who have no established work break seems entirely predictable.
Apparently Cole thought so, because he argued the matter with
Pertuit. It is further obvious that Dolese knew, or reasonably
suspected, that a short pause was all that Cancienne had taken,
because he not only argued with Cole for about 5 minutes, he
stood out in the heavy rain for 10 minutes contemplating
whether to disobey the clear order that he had received from
Cole. Such disobedience would assuredly have gotten Dolese
discharged, and his long period of indecision shows how con-
vinced he was that the suspension of Cancienne could not be
explained on any legitimate basis.
Dolese admitted that he had previously told employees to get
to work when he found them loafing. There are many instances
mentioned in this case where employees were issued discipli-
nary warning notices for loafing. In this case, however, Can-
cienne was issued a suspension for his loafing, even though his
general foreman and foreman thought the suspension was un-
justified. The half-day pay loss for Cancienne was a far greater
punishment for loafing (if Cancienne’s 2-minute pause could
legitimately be called that) than any warning notice that Can-
cienne might have received. (According to this record Can-
cienne had received no warning notices; moreover, as shown in
the case of discriminatee Marshall, at least 883 employees were
issued three or more warning notices in 12-month periods with-
out being discharged.) Finally, Dolese and Pertuit (and other
supervisors except, of course, Cole) testified that they had sus-
pended sheltered employees during rain-outs when they found
those employees loafing; specifically, Pertuit testified that he
ordered an (unnamed) general foreman to suspend other loafing
employees that day. I do not believe this testimony; moreover,
none of that testimony suggested that those other employees
were suspended without a preceding oral instruction to “get to
work” that was disobeyed.
The above-described admissions of Alvarez and Ramirez
prove that Respondent held the strongest degree of animus
toward the protected activities of Cancienne. There is no reason
to believe that such animus had dissipated by the time that Per-
tuit ordered the suspension of Cancienne. Rather, it appears
precisely that Pertuit seized upon his chance observation of
Cancienne’s pause in his work to suspend him, and it appears
that Pertuit did so because of Respondent’s animus. I so find. In
summary, Respondent has not met its burden of proving that it
would have suspended Cancienne even absent his known pro-
tected activities. I therefore find and conclude that by suspend-
ing Cancienne on March 1 Respondent violated Section 8(a)(3).
b. Mamoru Honjo’s reassignment from shop work
to field work
On April 22, 1994, Mamoru Honjo (vol. 21), a welder, was
reassigned from working inside in Respondent’s pipe shop to
working outside in the welding department.437 The second
complaint, at paragraph 146, alleges that by this reassignment
of Honjo Respondent violated Section 8(a)(3). The General
Counsel contends that Honjo’s reassignment was to a more
onerous position and that Respondent reassigned Honjo be-
cause of his known union activities and expressions of sympa-
thy which included his distributing union handbills to other
employees as they alighted from buses inside Respondent’s

437 All dates mentioned in Honjo’s case are from May 1993 through
April 1994, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1376
gates. The General Counsel contends that Honjo’s pipe shop
supervisor admitted to another employee that Honjo was reas-
signed because of those handbilling activities. The complaint
also alleges that, in violation of Section 8(a)(1), Honjo was
interrogated about his union activities and warned that the em-
ployees’ union activities were being maintained under surveil-
lance. Respondent denies that the admission, interrogation or
warning of surveillance occurred. Respondent further answers
that Honjo was reassigned along with other employees solely
because of economic necessity. Respondent admits that its su-
pervisors knew of Honjo’s prounion sympathies, and it admits
that the job to which Honjo was reassigned was more onerous
than his pipe shop job. Ultimately, I find and conclude that
Honjo was unlawfully reassigned to the welding department.
Respondent distinguishes between “loans” and “transfers” of
employees between departments. Several of Respondent’s su-
pervisors testified that loans are for shorter periods of time;
transfers are effectuated, and ASI-22 (transfer) forms are cre-
ated, when the employee is expected to stay in the recipient
department in definitely. I shall use Respondent’s terminology
in the following recitation of Honjo’s case, and “reassignment”
where the nature of the change is in issue.
Honjo, a first-class pipe welder, was first hired by Respon-
dent in 1970. Honjo was originally hired into the welding de-
partment, but in 1984 he was transferred to the pipe depart-
ment, and he worked only in the pipe shop until 1993. In 1993,
Honjo was formally transferred back to the welding depart-
ment, but twice thereafter he was loaned (back) to the pipe
department. The termination of Honjo’s second loan to the pipe
department, and the reassignment of Honjo to outside work in
the welding department (after the termination of that second
loan) is the action of Respondent that is alleged to a violation of
the Act.
The specific dates involved are as follows: From November
4, 1970, through May 30, 1984, Honjo was an employee of the
welding department. From 1984 through August 8, 1993, Honjo
worked only in the pipe shop. From August 9 through August
31, Honjo was on loan from the pipe department to the welding
department. On August 31, an ASI-22 (transfer) form was exe-
cuted, formally transferring Honjo to the welding department,
and Honjo continued working in the welding department
through November 3. On November 4, Honjo was loaned from
the welding department to the pipe department, and he contin-
ued to work in the pipe shop through December 31. On January
3, Honjo was returned to the welding department, and he
worked there through January 10. On January 11, Honjo was
again loaned to the pipe shop where he worked through April
21. On April 22, Honjo was again reassigned to the welding
department where he remained through the date of his testi-
mony. (Again, Honjo’s final return to the welding department is
the only assignment in issue; specifically, Honjo’s August
transfer to the welding department is not alleged as a violation
of the Act.)
The function of the pipe shop is the cutting, bending and
welding of pipe to specifications for use in the fabrication and
assembly areas. When working in the pipe shop, Honjo was
supervised by Foreman Kenneth Mouton; his general foreman
was Carroll Sonnier. While Honjo worked in the pipe shop, he
was protected from the elements; he had a fan in warm weather
and a heater in cold weather. In Honjo’s outside work in the
welding department, he has been required to do at least some
climbing; there was no climbing involved in his job in the pipe
shop. Also, as mentioned in Cancienne’s case, while working
outside, Honjo is subjected to being suspended for the day
without pay when it rains. Respondent does not dispute that all
of these factors make Honjo’s welding department work more
onerous than the work that Honjo did in the pipe shop. (As
Foreman Mouton put it: “Anybody going back out in the field
don’t like it.”)
Honjo testified that two weeks before the June 25 Board
election, he was approached by Mouton who was carrying a
clipboard that had upon it some employer campaign literature.
According to Honjo (whose first language is Japanese):

Mr. Mouton show to the clipboard and antiunion mate-
rial. He show it to me. I look in there. I told Mr. Mouton,
this is wrong information. . . .
He got so mad, he go [away from Honjo’s work
bench].

Honjo testified that he signed a union authorization card, and
he attended union meetings, but he wore a prounion button for
only 2 or 3 days in December, well after the June 25 Board
election. Honjo testified that, about a month after the Board
election, he was approached by Pipe Department Superinten-
dent Fradella. According to Honjo:

Mr. Fradella said that, “I knew you sign union authori-
zation card.” And [Fradella said] just like, “You no prob-
lem, hard worker.” And [Fradella asked,] “Why everybody
sign authorization card?”
I don’t tell nothing.

Based on this testimony by Honjo, paragraph 59 of the second
complaint alleges that Respondent, by Fradella: “(a) created the
impression among its employees that their union activities were
under surveillance by the Respondent; and (b) interrogated its
employees about their union membership, activities and sympa-
thies.” As discussed infra, Fradella denied this testimony by
Honjo.
Buses deliver employees to points inside Respondent’s gates;
the passengers, of course, have no opportunity to receive any
handbills that may be distributed at the gates. Honjo testified
that he took upon himself the duty of sometimes distributing to
bus riders handbills that had been distributed by the Union on
given days. Honjo testified that on the morning of April 21, he
distributed union handbills to employees as they alighted from
a bus inside Respondent’s yard. The handbill concerned the
May 6 meeting of Respondent’s shareholders that has been
mentioned several times before in this decision. The topic of
the handbill was union-sponsored proposals for changes to the
ESOP plan; those proposals had become a hotly contested issue
on which Respondent, as well as the Union, distributed hand-
bills to the employees. Honjo testified that during the afternoon
of April 21, about 5 minutes before the 3:20 p.m. cleanup whis-
tle, he was approached by Foreman Mouton and told that he
was being reassigned “outside,” or to the Welding Department,
starting the next day. Mouton gave Honjo no reason for the
reassignment. As mentioned, Honjo remained in the welding
department through the date of his testimony.
Current pipe department employee John Holmes (vol. 22)
testified that on April 21 he went to Mouton’s office to use the
telephone. When he completed the call, according to Holmes:

Well, as I was leaving, I asked him [Mouton], “What is
going on with Honjo?”
AVONDALE INDUSTRIES

1377
And he told me that Carroll Sonnier saw Honjo giving
out Union material, and he is being shipped out.
And so I said, “You guys are always doing crap like
that.”
So he said, “It is not me; it is Carroll.” So I left.

Based on this testimony by Holmes, paragraph 80 of the second
complaint alleges that Respondent, by Mouton, “told its em-
ployees that an employee was being transferred because he
aided or supported the Union.” Mouton denied this testimony,
as discussed infra.
Honjo’s Reassignment—Respondent’s Evidence
On direct examination, Mouton (vol. 147) testified that he
played no part in the decision to return Honjo to the welding
department. Mouton testified that the first that he heard that
such a decision had been made was early in the day of April 21,
when Sonnier told him that: “Honjo was going to be shipped
out the following morning with a couple of fitters.” Mouton
was not asked if Sonnier told him at that time why Honjo was
being reassigned. Mouton was asked and he testified:

Q. [By Mr. Cupp]: Did you tell Mr. Holmes on the day
that you told Mr. Honjo that Mr. Honjo was being sent out
of the shop because Mr. Sonnier saw him distributing Un-
ion leaflets?
A. Not to my knowledge, no.
Q. Did you ever tell that to Mr. Holmes?
A. No.

Mouton acknowledged that Holmes came to his office to use
the telephone, “[q]uite a few times.”
Pipe details are orders for pipes that are processed in the pipe
shop. Mouton testified that at one point the pipe shop had as
many as 500 pipe details per week, but, about the time that
Honjo was reassigned to the welding department, the pipe shop
was down to 150 pipe details per week. Mouton testified that:
“We just had to cut back.” Mouton further testified that “around
the same time” that Honjo was returned to the welding depart-
ment, three other welders (whom Mouton named) were also
returned to the welding department. Mouton testified that those
three welders were faster welders than Honjo. Five other pipe
welders were allowed to stay in the pipe shop after April, but
each of them was also a faster welder than Honjo. On cross-
examination Mouton reaffirmed that he played no part in the
decision to reassign Honjo to the welding department. Mouton
further testified that no records are kept that would show how
fast pipe shop welders worked.438
Sonnier (vols. 121, 125) testified for Respondent, but he did
not deny seeing Honjo distributing handbills to employees who
alighted from the buses on April 21. Sonnier testified that the
pipe shop had about 60 employees in 1993 and about 40 in
1994. The pipe shop has had as many as 18 pipe welders but at
the time that he testified the number was down to five.
Sonnier identified records that reflect the number of pipe
welders who worked in the pipe shop each day from March
1992 through December 1994. The records show that in early
1994 Respondent had as many as 18 pipe welders in the pipe
shop at a time and that during the first weeks of April, the pipe-

438 Mouton also testified that, as of the date of his testimony, Honjo
was working in the pipe shop, but on the night shift. There is no evi-
dence of when or how this night shift assignment first occurred, or how
long it was to last, and it will not be considered further.
welder complement of the pipe shop dropped from 16 to 13.
The return of Honjo to the welding department on April 22 (a
Thursday) dropped the number of pipe welders in the pipe shop
from 13 to 12. On April 26, 27, and 28, the number returned to
13. On April 29, the number dropped to 12, but it was back to
13 on the next workday, May 2. During May and early June,
the number of pipe welders in the pipe shop stayed below 13,
but on June 16 the number went back to 13. While the numbers
dipped occasionally thereafter, the records show that there were
13 pipe welders in the pipe shop as late as November 10 (and
on October 13 there were 14).
Sonnier testified that Honjo was returned to the welding de-
partment: “Because the work schedule slowed down.” Sonnier
testified that a week before Honjo was returned to the welding
department, he told Mouton “that we needed to move people.”
Mouton replied to Sonnier that Honjo “should go.” because he
was too slow and that, “ . . . he [Honjo] is not as good a welder
as the rest of them.” Sonnier further testified that Mouton rec-
ommended that “only” Honjo be returned to welding. Sonnier
further testified that he met with Pipe Department Superinten-
dent Fradella and told Fradella that he wanted to move “a
welder,” Honjo, from the pipe shop. Fradella, according to
Sonnier, replied to him, “If you want to move Honjo, we will
move Honjo.”
On cross-examination, Sonnier testified that when he first
notices that an employee is being too slow in his work he
speaks to that employee; Sonnier admitted, however, that nei-
ther he nor Mouton ever told Honjo that he was too slow in his
work, and neither he nor Mouton ever issued a warning notice
to Honjo for lack of production.439 Sonnier further testified that
employees are regularly moved in and out of the pipe shop, but
there was a “base core” of welders who usually stayed. He
admitted that Honjo was one of those welders. Sonnier further
admitted that the welders that he tried to keep in the pipe shop
were the “more productive.”
Fradella (vol. 113) denied that he told Honjo that he knew
that Honjo had signed a union authorization card or that he
asked Honjo why he had done so. Fradella testified that he first
learned that Honjo supported the Union shortly after the Board
election when Sonnier told him that, “Honjo was telling people
that, now that the election is over, the Union is going to change
things around Avondale.” Fradella denied that he discussed the
reassignment of Honjo with Mouton. Fradella testified that the
reassignment of Honjo came about when Sonnier told him that
he wished to return Honjo and welder Ralph Taylor to the
welding department and he agreed. On cross-examination
Fradella admitted that Sonnier did not tell him upon what basis
he had selected Honjo and Taylor for reassignment to the weld-
ing department.
Honjo’s Reassignment—Conclusions
Honjo had a far more favorable demeanor than Fradella, and
I credit his testimony that shortly after the Board election
Fradella told him that he knew that Honjo had signed a union
authorization card and he asked Honjo why some of the other
employees had also done so. Honjo had told Mouton that he did
not agree with Respondent’s preelection propaganda, but there
is no evidence that Honjo had told any supervisor that he had
signed a union authorization card. Even if he had, Fradella was

439 Honjo had been issued no warning notices during his 23 years of
employment by Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1378
not licensed thereby to ask him why other employees had done
so. I therefore conclude that Respondent, in violation of Section
8(a)(1), by Fradella, in July 1993, interrogated an employee
about his union activities. I further conclude that by Fradella’s
informing Honjo that he knew of the particulars of his union
activity, Respondent, by Fradella created an impression of
unlawful surveillance of an employee’s protected activities,
also in violation of Section 8(a)(1).440
Current employee Holmes testified that, on April 21, the day
that Honjo distributed handbills to the bus riders, Mouton told
him that Honjo was being “shipped out” because Fradella had
seen Honjo doing so. When asked if he had said such a thing,
Mouton first replied, “Not to my knowledge, no.” Mouton gave
an unequivocal denial when thereafter pressed to do so, but he
left an unfavorable impression in the process. Respondent sug-
gests no reason why Holmes would have lied and I do not be-
lieve that Holmes did lie. I credit Holmes’ testimony, and I find
and conclude that, in violation of Section 8(a)(1), Respondent,
by Mouton, on April 21, 1994, told its employees that another
employee had been reassigned because he had aided or sup-
ported the Union.
At minimum, Mouton’s statement to Holmes establishes a
prima facie case that Respondent’s April 22 reassignment of
Honjo to the welding department violated Section 8(a)(3). The
timing of the reassignment, coming immediately on the heels of
Honjo’s protected activity of distributing the prounion handbills
to the bus riders, is another factor that requires a finding of a
prima facie case.441 The burden therefore shifts to Respondent
to demonstrate by a preponderance of the evidence that it
would have taken the same actions against Honjo even in the
absence of his known protected activities. Respondent’s de-
fenses must therefore be examined.
Mouton testified that (and re-affirmed that) he had no input
to the decision to reassign Honjo; rather, Mouton testified that
decision was announced to him by Sonnier. Sonnier, however,
testified that Mouton asked that Honjo, and only Honjo, be
reassigned to the welding department. He then went to Fradella
and stated that he (and, presumably, Mouton) wanted Honjo
(and only Honjo) reassigned to the welding department.
Fradella testified, however, that Sonnier came to him and asked
that Honjo and one other employee (Taylor) be reassigned to
the welding department. Respondent suggests no way that this
quagmire of inconsistencies can be reconciled.
Respondent offered vague testimony that “around” the time
that Honjo was reassigned to the welding department, other
pipe welders were reassigned to the welding department also.
Respondent, however, suggests no way to reconcile that
(vague) testimony with its records which show that only Honjo
was reassigned on April 22. That is, its records show that the
number of pipe welders in the pipe shop dropped from 13 to 12
on the day that Honjo was reassigned; the number stayed at 12
for only 2 days (Friday, April 22, and Monday, April 25) but it
was immediately returned to 13 the day after that. At times
thereafter, the number of pipe welders in the pipe shop returned
to 13 (and even 14), but some welder other than Honjo was

440 See Electro-Voice, Inc., 320 NLRB 1094 (1996), as quoted
above.
441 Respondent argues that its supervisors knew of Honjo’s prounion
sympathies well before April 22; there is no evidence however, that
before that date the supervisors knew of Honjo’s activities that were
directed against Respondent’s position on the hotly contested issue of
the Union’s proposals for changes in the ESOP plan.
selected to bring the number to 13 (or 14). Over the years be-
fore Honjo’s April 21 handbilling activities, when Respondent
needed a pipe welder in the pipe shop, it called upon Honjo.
Indeed, Respondent left him there for 10 straight years. Re-
spondent did offer testimony that Honjo’s welding was slower,
and not as good, as that of other welders, but aside from being
totally unsupported,442 that testimony is irreconcilable with the
fact that, over the years before he was seen distributing hand-
bills for the Union on April 21, Honjo was repeatedly called
(and recalled) to the pipe shop when welders were needed.443
Respondent’s unsupported testimony of Honjo’s inferiority to
other pipe welders was simply incredible. (Moreover, although
Mouton, Sonnier, and Fradella testified that Honjo was slower
and less able than other welders, none of those supervisors
testified that Honjo was reassigned to the welding department
because he was slower, or less able, than the other welders.)
I find that Respondent has not shown that it would have reas-
signed Honjo to the welding department, at least as early as it
did, even absent his known protected activities. I therefore con-
clude that by its reassignment of Honjo to more onerous work
in the welding department, Respondent violated Section
8(a)(3).
c. Richard St. Blanc
On June 29, 1993, Richard St. Blanc (vols. 8, 9), an electri-
cian, was reassigned from inside “bench” work to work on a
ship with a crew that was pulling heavy cable. That cable-
pulling job lasted for 2 or 3 weeks; then St. Blanc was assigned
other work that is not in issue. On July 29, St. Blanc was as-
signed to a second cable-pulling job that lasted at least 2 more
weeks. The second complaint, at paragraphs 92 and 109, re-
spectively, alleges that St. Blanc’s June 29 and July 29 cable-
pulling assignments were assignments to more onerous jobs
and that by making those assignments Respondent violated
Section 8(a)(3). Also on July 29, St. Blanc was issued a warn-
ing notice. The second complaint, at paragraphs 69 and 70,
alleges that the warning notice was issued because St. Blanc
had engaged in the protected concerted activity of complaining
about working conditions and that by issuing the warning no-
tice to St. Blanc Respondent independently violated Section
8(a)(1) of the Act, as well as Section 8(a)(3). The General
Counsel contends that Respondent warned and assigned St.
Blanc to cable pulling duties because of: (1) St. Blanc’s known
protected concerted activities which included his encouraging
other employees to complain about working conditions; and (2)
St. Blanc’s known union activities and expressions of sympathy
which included his wearing prounion insignia, serving as an
alternate union observer in the June 25 Board election, passing
out prounion literature during the hours that the election was
conducted, and getting his picture in the local newspaper as a
prounion employee. The General Counsel further alleges that,
in violation of Section 8(a)(1), supervisors interrogated St.
Blanc, threatened him with unspecified reprisals, and threat-
ened him with closer supervision. Respondent denies that the
threats or interrogation occurred. Respondent further answers
that: (1) St. Blanc was assigned cable-pulling jobs solely be-
cause of business necessities, (2) even if St. Blanc’s cable pull-
ing assignments were onerous, they were nothing unusual for

442 Honjo was never issued a warning notice for slow, or inefficient,
welding (or anything else).
443 As Sonnier admitted, Honjo was part of a “base core” of welders
upon which the pipe shop had relied over the years.
AVONDALE INDUSTRIES

1379
electricians, and (3) when he was issued the warning notice, St.
Blanc had not been engaging in protected activities because he
was not engaging in strike activity but he did stop working and
he caused other employees to stop working. Respondent further
contends that St. Blanc was issued the warning notice solely
because he left his work area and he interfered with the work of
other employees. The General Counsel replies that, even if St.
Blanc was not engaged in protected concerted activity on July
29, he was disparately treated because he was inadequately
warned beforehand, and the General Counsel replies that St.
Blanc was disparately punished by being reassigned to cable-
pulling as well as given the warning notice. Although I find that
St. Blanc’s activities of July 29 were not statutorily protected, I
nevertheless ultimately conclude that by issuing the warning
notice to St. Blanc, and by giving him both of the cable pulling
assignments, Respondent violated Section 8(a)(3).
(1) St. Blanc’s reassignment from shop work to cable pulling
St. Blanc has been employed by Respondent for about 6
years; currently he is a first-class power electrician (as opposed
to a maintenance or an internal communication electrician). In
October 1992, St. Blanc sustained a nonoccupational injury to
his shoulder that required two operations and the sometimes-
wearing of a brace or sling. During that month, St. Blanc was
placed on light-duty status and given a bench-electrician’s job
in the plug shop. The function of the plug shop is to make plugs
that may have 50 to 100 pins each; it is not simple work, but
there is no evidence that Respondent had ever employed first-
class electricians in the plug shop before or after St. Blanc
worked there. The plug shop is air-conditioned, and the work
there is “clean” (at least as compared to electricians’ work on
the ships). In April 1993, St. Blanc’s doctor, and Respondent’s
medical department, released him as able to return to regular
duties, but St. Blanc was nevertheless retained in the plug shop
until June 29 when Electrical Department Superintendent
Robert Terry ordered him to be reassigned to a ship. From the
time that St. Blanc went on light duty in October through June
13, the plug shop foreman was James Grimes; on June 14,
Charles Gaudin replaced Grimes as foreman of the plug
shop.444
St. Blanc testified that on June 2, he wore a union pin to
work for the first time; he wore the pin on a sleeve of his shirt,
just above the elbow. During that day, St. Blanc was sent to a
ship for a few hours to help make an electrical connection. A
general foreman on that ship was Kenny Danos; Danos reported
directly to Gerald Gerdes, assistant to Terry. According to St.
Blanc:

Mr. Danos pulled me aside and said, “I am not trying
to tell you what to do, but I want you to know that word of
you wearing this button has reached Gerry Gerdes.” And
[Danos further told me that] Gerry Gerdes called back and
confirmed with Danos whether I was wearing the button,
and he did confirm that. He was just telling me that proc-
ess took place.

Danos was not called by Respondent to testify.
St. Blanc testified that employees are not required to wear
their hardhats while working in the plug shop. St. Blanc further
testified that on June 3, Grimes approached him as he worked
at his bench in the plug shop; according to St. Blanc:

444 This date was determined in Gaudin’s testimony; Grimes only
used the term “mid-June.”

Mr. Grimes asked me if I was wearing any stickers or
buttons on my hat, and I said, “No; on my sleeve.”
And he says, “That is not a very smart thing to do,”
that I was insulting management, and that every day I was
wearing it, I was “fucking up.” And then he said, “End of
conversation.”
That was it.

Based on this testimony by St. Blanc, paragraph 39 of the sec-
ond complaint alleges that Respondent, by Grimes, “(a) inter-
rogated its employees about their union membership, activities
and sympathies; and (b) threatened its employees with unspeci-
fied reprisals if they continued to aide or support the Union.”
As discussed below, Grimes denied this testimony by St. Blanc.
St. Blanc testified that about an hour after Grimes left his
bench, he was approached by Terry. St. Blanc testified:

Well, what he [Terry] did was, he came in to the Plug
Shop, and he went directly up to me and asked me to see
my hardhat, to make sure it was safe. . . .
I gave him the hat, and he looked it over, and he said,
“It seems to be in order,” and he handed it back to me.

St. Blanc testified that there were seven other employees in the
plug shop when Terry approached him; Terry came and left
without conducting an examination of the hardhat of any of
those other employees. St. Blanc testified that never before had
he had such an inspection of his hardhat. Terry did not deny
any of this testimony by St. Blanc. On cross-examination, Terry
confirmed St. Blanc’s testimony that employees are not re-
quired to wear hardhats while working in the plug shop.
As noted above in the case of discriminatee Molaison, when
called by the General Counsel as an adverse witness (vol. 42),
Terry acknowledged that, during the 30 days before the Board
election, he maintained a list of “union supporters.” Terry fur-
ther acknowledged that St. Blanc’s name was on that list.
St. Blanc testified that on June 21 he again wore his union
button on his sleeve. That day, as he was going to the restroom,
he met Terry who was coming from the opposite direction;
according to St. Blanc:

As I was walking to the bathroom, he hollered at me
from behind, and I had to turn around to speak to him. He
[Terry] said, “Richard, where are you going?”
I said, “I am going to the bathroom right there.”
And he said, “I am just checking to make sure every-
thing is okay.”
And then we—he was on the Moped and we kind
of parted, and as we were parting, I said, “Well, how
are you doing, Mr. Terry?”
And he said, “Better than you.”
I said, “Well, what do you mean by that?”
And he said, “You figure it out.” And then he took off.

As discussed below, Terry’s version of this exchange is only
slightly different.
On June 24, the day before the Board election, the Regional
Office conducted an instructional session for all employees
who were to serve as observers. St. Blanc testified that on June
24:

I called in to Jan, which is Jan Adams, Bob Terry’s
electricalsecretary, to report to her that I was going to miss
that day to come to the orientation to be an observer, and
she transferred my phone call to Bob Terry.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1380
When she transferred the call, I said, “Hello, Mr.
Terry, how are you?
And he said, “Better than you; I hear you want to be an
observer for the election” and [he said] that Avondale
wasn’t going to pay for that, but that he would have to
give me an excused absence.
And then he said, “When you report back, I want you
to report back to me.”
And when he said that, I asked him why.
And he said, “I want to know how many connectors
you are doing and the procedures you are following.”
And I said, “I keep a log of that for Mr. Gerdes [again,
general foreman of the LSD program and assistant to
Terry] already, and anything you want, I will give it to
you.”
And he said, “Those are the rules; you want to follow
the rules, don’t you?”
And I said, “Yes, sir, I do.” . . . And then we hung up.

St. Blanc testified that, before this exchange, Terry had never
before inquired about his work in the plug shop. Based on this
testimony by St. Blanc, paragraph 51 of the second complaint
alleges that Respondent, by Terry, “threatened its employees by
telling them that he would engage in closer supervision of their
work because its employees aided or supported the Union.”445
On June 25, the day of the election, as an alternate union ob-
server, St. Blanc worked at a polling place for about an hour.
During much of the remainder of the day, he stood outside
Respondent’s administration building and handbilled for the
Union. A picture of him doing that, along with discriminatee
Perera, appeared in the Times Picayune the next day. After the
election, St. Blanc placed union stickers on the front and back
of his hardhat.
St. Blanc further testified that when he did return to work on
Monday, June 28, he went to Terry’s office as Terry had in-
structed; when he got there, Terry told him that he did not want
to see him. Terry confirmed this testimony. St. Blanc testified
that, after leaving Terry’s office, he then returned to the plug
shop and worked the remainder of the day without event. On
June 29, however, Gaudin (who, again, had become the plug
shop foreman on June 14) told him to report Randy Owen, a
foreman over power electrician crews on “B-Hull,” or LSD-
50.446 St. Blanc testified that when he went to Owen, Owen sent
St. Blanc to Foreman Calvin Lewis whose crew was pulling
cable at that time.
St. Blanc testified that he pulled cables under Lewis for
about 3 weeks. St. Blanc described the work:

We pulled cable that some other people pulled and
they tangled it all up. We were cleaning the bilge out of all
the tie wraps and the electricaltrash that was in the bilge.
And when you pull cable, you are climbing in the racks,
you are pulling the cable, and you are using tie wraps, you
know.

. . . .

445 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against St. Blanc, as well as
the charge in Case 15–CA–12171–1.
446 Mentioned in several cases are A, B and C Hulls which were
temporary designations for LSDs 49, 50, and 51, respectively.
Well, the conditions on the ship are—they are hot, and
they are noisy, and it is filled with smoke . . . . And when
you get it [the wire-cutters] on the cable and you cut it, it
has a piece of nylon usually about that long [about 12
inches], and they all fall down in the bilge, and other peo-
ple who don’t clean up after themselves, you know, that is
what we were cleaning up.

When asked to compare that work with the bench work that he
had previously done in the plug shop, St. Blanc testified:

The bench work is, you know, clean. The environment
on the ship, it is hot, and there is smoke, and we are climb-
ing down into the bilge and getting all the dirt and the wa-
ter and the tie wraps and all on us.

Respondent did not dispute this testimony, and I find that St.
Blanc’s cable pulling work was more onerous than the plug
shop work that St. Blanc had been doing since October 1992.
St. Blanc testified that cable pulling does not involve the use of
any of the tools of a first-class electrician (except wirecutters
for the tie wraps), nor does it require his other skills such as
reading blueprints. St. Blanc testified that cable pulling is “pri-
marily” done by helpers.447
On cross-examination, St. Blanc admitted that, before his
October 1992 injury, he had worked in hot, dirty conditions on
the ships. St. Blanc further admitted that cable pulling is “not
an unusual job for a power electrician.” On redirect examina-
tion, however, St. Blanc testified that, before the events of this
case, as a first-class electrician, he pulled cable only when he
was preparing to make a connection and he found that cable
pulling crews had not pulled all the cables that they were sup-
posed to pull. St. Blanc testified: “And if there is a cable or two
missing and it is not that big stuff that we are talking about,
then you [a first-class electrician] will pull it.”
St. Blanc’s Reassignment from Shop Work to Cable
Pulling—Respondent’s Evidence
Grimes (vol. 150) testified that at the time that St. Blanc’s
light-duty status ended,448 he personally informed Terry that St.
Blanc had been released for regular duties. Grimes testified that
St. Blanc was allowed to remain in the plug shop because the
plug shop was in a time of “peak load” for completion of the
LSD-49. By June 14, when he left the plug shop for another
supervisory position with Respondent, the work on the plugs
for LSD-49 was “approximately 98 percent” complete. Grimes
further testified that when he left the plug shop, “We was on a
downward flow as far as work for LSD-49 to be performed.”
Grimes further testified that, in June, although LSD-50 had
recently been put in the water, production of its plugs and con-
nectors had not begun because of lack of materials that were
supplied by the U.S. Government. As a result, Grimes testified,
from early June until June 14, “We didn’t have enough work to
keep them all really gainfully employed at that time frame. We
just almost had to make work to keep them all occupied.”
Grimes admitted that he spoke to St. Blanc in early June
about the union button that St. Blanc was then wearing. Grimes
testified, “When I saw him wearing the button, I told him that I
thought it was sort of stupid to wear the button because I didn’t

447 As well as St. Blanc’s case, the testimony about who is assigned
to cable pulling crews is relevant to the case of alleged discriminatee
Sidney Jasmine which immediately follows.
448 Grimes placed the date in March, although it was actually April.
AVONDALE INDUSTRIES

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feel that the Union could do any good for Avondale.” Grimes
flatly denied, however, that he said anything else to St. Blanc at
the time. Upon completion of this testimony, the General Coun-
sel moved to amend paragraph 39 of the second complaint to
allege that, by Grimes’ admitted statement to St. Blanc, Re-
spondent: “(c) Disparaged, ridiculed and/or scorned its employ-
ees because they aided or supported the Union and told its em-
ployees their activities on behalf of the Union were futile.”
Respondent denies that Grimes’ admitted remarks to St. Blanc
constitute a violation of law.
On cross-examination, Grimes admitted that in June Re-
spondent was desirous of building up an inventory for use when
the LSD-50 was ready to receive plugs, but he again maintained
that a shortage of materials prevented the plug shop from start-
ing to build that inventory. Grimes conceded that there was no
documentation which would support his claim of such a short-
age of materials. Finally, Grimes admitted that, at the time that
he left the plug shop in mid-June, he had planned to use St.
Blanc there “indefinitely.”
Gaudin testified (vol. 148) that “one or two days” prior to
June 29, Terry called him to his office and told him that LSD-
50 needed “a” power electrician; he told Terry that St. Blanc
was available. Terry asked if St. Blanc had recovered from his
October injury, and Gaudin replied affirmatively. Terry told
Gaudin to have St. Blanc report to LSD-50. Gaudin testified
that he told Terry that St. Blanc was available because the plug
shop had caught up with the work on LSD-49 and the work for
LSD-50 “was starting up, but there wasn’t a lot at that particular
time.” Gaudin concluded: “I was a little bit overstaffed.”
Gaudin did not mention a lack of materials as a reason for the
plug shop’s not then working on plugs for LSD-50.
On cross-examination, Gaudin admitted that the plug shop
had begun working on the plugs for LSD-50 as early as October
1992. Later, after repeated leading objections by Respondent’s
counsel, Gaudin moved the date of work on LSD-50’s plugs to
the last 6 months of 1993, but in further answers Gaudin admit-
ted that LSD-50 plugs were being made before St. Blanc was
transferred to LSD-50. Gaudin further admitted that, had it been
up to him, he would have left St. Blanc in the plug shop, and he
admitted that, before he was called to Terry’s office, he had no
intention of calling any superior and telling him that he was
“overstaffed” in the plug shop; Gaudin testified, however, “[I]t
was coming to that.” Gaudin was then asked and he testified:

Q. Well, can you put in time when it was going to
come to the point when you were going to suggest that
someone go out of the plug shop?
A. It would have been in the very near future because
the 49 was coming to an end as far as plug making goes,
and the 50 wasn’t far enough along to where I needed a
full crew at that time in the plug shop.
Q. Can you be any more specific than that in terms of
months or years how much down the road it was it was go-
ing to be till you [sent] somebody out of the plug shop?
A. Probably about a month or maybe a month and a
half.

After conflicts became apparent, Gaudin was then asked and he
testified:

Q. Now that we have had a chance to go through the
status of the 49 and the 50, do you realize that you really
weren’t overstaffed in the summer of ‘93?

. . . .

THE WITNESS: I would say I wasn’t overstaffed. But I
had more—like I said before, I had more people than I
would like to have had for the amount of work I had at the
time.

(Gaudin did not dispute St. Blanc’s testimony that he was trans-
ferred to LSD-50 on June 29, even though an MCR introduced
through Gaudin shows that St. Blanc worked in the plug shop
for the first half-hour of June 30.)
On direct examination Terry testified (vol. 90) that the duties
of a first-class electrician include pulling cable and, when a
ship is in the initial stages of construction, and wireways
(which hold the cables) are first installed, there is little for elec-
tricians to do but pull cable. Terry testified that, in addition to
working on cable pulling crews, first-class electricians pull
cable for final “shape-up” when necessary to make “termina-
tions” (or final connections) and when work falls behind sched-
ule. Terry acknowledged that cable pulling crews often include
helpers, but he testified that Respondent prefers to have mostly
mechanics doing the cable pulling because of its vital impor-
tance to the ships.
The work of first-class power electricians, Terry further testi-
fied, is only on ships. Terry testified that St. Blanc was first
assigned to the plug shop when Terry was notified by the medi-
cal department that St. Blanc had suffered an injury which per-
mitted him only to perform light duty. At the time, work was
behind in the plug shop, and Terry sent him there. Terry further
testified that “shortly before the end of June, before the elec-
tion,” he determined that the number of power electricians on
LSD-50 was too low. Terry testified that one to 2 weeks before
St. Blanc’s reassignment, he called all of his general foremen
together to tell them that “some additional power mechanics”
were needed on LSD-50 and ordered them to tell him of any
other power electrician who might be available. Terry did not
testify that any of the general foremen reported back to him
about the availability of any power electrician. Terry did testify
that, at the time of the general foremen’s meeting, he did not
know that St. Blanc was no longer on light duty. Terry testified
that Grimes (not Gaudin, who by then was St. Blanc’s foreman)
told him that St. Blanc was off light duty, “shortly prior to the
transfer.”
As noted, St. Blanc testified that in two preelection ex-
changes with Terry, Terry stated that he was doing “better than
you.” Terry admitted to using the phrase once, on June 23 (not
June 21, as St. Blanc testified). Terry admitted that he told St.
Blanc that, “I am holding up better than you.” Terry further
testified that, when St. Blanc asked what Terry had meant, he
responded, “You will find out.” (St. Blanc, as mentioned, testi-
fied that Terry had responded, “You figure it out.”) Terry was
asked and he testified:

Q. [By Mr. Hymowitz]: Okay. And when you said,
“Better than you,” what did you mean when you said that
in response?
A. Well, Mr. St. Blanc had been injured—personal in-
jury. He was on limited duty, and I had observed him—I
knew he was in that situation at the time. And also, I knew
that we had discussed—Mr. St. Blanc, his supervisor and
I—it was pointed out to me that he may be off limited
duty, and I was in need of some power mechanics, and I
was looking at Mr. St. Blanc.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1382
I had not made a final decision, but I was looking at
him. I hadn’t checked with the medical department and so
forth to see what his physical condition was at the time,
but I certainly was considering moving him out of that
shop environment and putting him back shipboard. So I
feel like that was part of my comment also.
Q. But when you said, “I am doing better than you,”
what were you referring to in connection with him?
A. When I said that, I was referring to his health . . .
meaning the injury.

Terry testified that, at the time, he had not checked with the
medical department to see if St. Blanc had been released for
regular duty. Terry was not asked why, when St. Blanc asked
what Terry had meant by “Better than you,” he did not tell St.
Blanc that he was referring to St. Blanc’s health.
Terry did not deny that, when St. Blanc opened their tele-
phone conversation of June 24 by asking how Terry was, he
told St. Blanc “Better than you; I hear you want to be an ob-
server for the election.” Terry further admitted that, after hear-
ing that St. Blanc would be absent on June 24 and 25 because
of his duties as a union observer, he told St. Blanc to report to
his office when he returned to work on June 28. Terry testified
that he told St. Blanc to do this because: “I was looking, as I
previously stated, at transferring Mr. St. Blanc from the con-
nector [plug] shop back to shipboard duties, and I felt that by
the time he came back to work Monday, I would have made a
final decision on that.” Terry denied that he told St. Blanc to
report the numbers of plugs that he had been completing. Terry
first testified that he did not “recall” mentioning following the
“rules” to St. Blanc in that conversation; even when led, Terry
only hesitantly denied making a reference to rules (“Not—no,
sir”).
Terry agreed with St. Blanc that, when St. Blanc reported to
his office on June 28, he told St. Blanc that he did not want to
talk to him. When asked why he did not want to talk to St.
Blanc, Terry testified:

I was very disappointed due to the outcome of the vote
of the election not being a clear-cut victory for the Com-
pany, and knowing Mr. St. Blanc was a union supporter
and an observer, et cetera, at that point I just didn’t want to
discuss it anymore and discuss anything further with him.

Terry further testified that he made the final decision to reas-
sign St. Blanc from the plug shop to LSD-50 on that day, June
28.
On cross-examination, Terry claimed that he could not recall
how far in advance of St. Blanc’s reassignment from the plug
shop he became aware that there was a need for more power
electricians on LSD-50, and Terry testified that he could not
recall if any other power electricians were sent to LSD-50 as a
result of his meeting with his general foremen. Terry testified
that Ed Raymond was Grimes’ general foreman at the time of
this meeting and that Raymond was present at the general
foremen’s meeting. Raymond did not testify, nor did any other
general foreman testify about attending such a meeting. Terry
testified that, “I considered every power mechanic in the ship-
yard that wasn’t on the LSD-50,” but he could not remember
the names of any power electrician, in addition to St. Blanc,
who was considered for transfer to LSD-50, or where any such
other power electrician might have worked, or whether any
other power electrician, in addition to St. Blanc, was ultimately
transferred to LSD-50 as a result of his meeting with his general
foremen.
Terry testified that he found out from Grimes, “[w]ithin one
to two weeks before Mr. St. Blanc was transferred” that St.
Blanc was no longer on light duty. He reaffirmed that he made
the decision to transfer St. Blanc on June 28, but he disclaimed
memory about how many minutes or hours after St. Blanc’s
coming to his office that date that he made the decision to
transfer St. Blanc. On cross-examination (vol. 93) Terry testi-
fied that when he told St. Blanc, “You will find out,” he was
referring to St. Blanc’s reassignment that he was then contem-
plating, but he acknowledged that he did not say so to St.
Blanc.
St. Blanc’s Reassignment From Shop Work to
Cable Pulling—Conclusions
As will be discussed below, Respondent argues that cable
pulling is a routine part of the duties of any electrical depart-
ment mechanic, such as St. Blanc, who is classified as a first-
class electrician. One fact, however, is not in issue: cable pull-
ing aboard a ship is more onerous work than the bench work of
making plugs in the air-conditioned plug shop. I have so found
above. Even if while working aboard a ship a first-class electri-
cian could routinely be expected to pull cable, St. Blanc simply
was not working aboard a ship when he received the order that
sent him from bench work to cable pulling. Therefore, at least
as far as St. Blanc’s June 29 cable pulling assignment is con-
cerned, the comparison to be made is between the nature of that
assignment and the nature of St. Blanc’s immediately antece-
dent assignment; to wit: bench work in the plug shop. The
comparison in issue is not, as Respondent argues on brief, be-
tween St. Blanc’s June 29 cable pulling assignment and his on-
paper classification or even St. Blanc’s job assignments before
he came to the plug shop.
It is further undisputed that St. Blanc began wearing a union
button on June 2. It is further undisputed that General Foreman
Kenny Danos told him on that date that “word” had gotten to
Gerdes that St. Blanc was wearing a union button, and Gerdes
had called Danos to confirm the report. Respondent’s animus
toward those employees who wore prounion insignia is estab-
lished throughout this decision, and Danos’ remark to St. Blanc
was clearly a categorical statement to St. Blanc that he had
become an object of that animus. (Although Danos prefaced his
remarks to St. Blanc by saying that he was not telling St. Blanc
what to do, Danos was clearly indicating to St. Blanc what he
should do; to wit: take the union button off or suffer adverse
consequences.)
It is further undisputed that, the following day, Terry came to
the plug shop and performed a totally gratuitous, individual,
and solitary inspection of St. Blanc’s hardhat. Apparently in-
cluded in the “word” that St. Blanc was wearing a union button
was also the erroneous information that St. Blanc was wearing
prounion insignia on his hardhat (as opposed to his sleeve). It
was either that or Terry was engaging in some sort of games-
manship to hide his real purpose for coming to the plug shop; to
wit: a confirmation of the “word” in addition to the confirma-
tion that Gerdes had obtained from Danos.
These undenied demonstrations of animus that were cate-
gorically directed toward St. Blanc’s wearing of prounion in-
signia provide an entirely credible background for St. Blanc’s
testimony that, also on June 3, Grimes told him that he was
“fucking up” by wearing a union button. Moreover, St. Blanc
AVONDALE INDUSTRIES

1383
was entirely credible in his testimony that Grimes did exactly
that. Such a statement bears its own, obvious, threat. I therefore
find and conclude that, in violation of Section 8(a)(1), Respon-
dent, by Grimes, on June 3, 1993, threatened an employee with
unspecified reprisals because he was wearing prounion insig-
nia. 449
It is further undisputed that, during their exchanges of June
23450 and June 24, St. Blanc casually asked how Terry was.
When first asked on direct examination why he had replied to
St. Blanc on June 23, “Better than you,” Terry first gave the
nonresponsive answer that he had previously been considering
St. Blanc for transfer and he had heard that St. Blanc “may” be
off limited duty. When immediately asked again what he had
meant on June 23 by “Better than you,” Terry answered, “I was
referring to his health.” Terry impressed me as an abrupt man;
nevertheless, I do not believe he possessed the degree of rude-
ness (if not cruelty) that is required to reply to a casual inquiry
about his health by saying to the inquirer (who “may” still be
suffering from an injury), “Better than you.”
Terry also testified that in their June 23 exchange he told St.
Blanc, “You will find out,” when St. Blanc asked what Terry
had meant by saying, “Better than you.” Albeit in a nonrespon-
sive answer, Terry sought to convey the impression that he was
referring to his contemplated transfer of St. Blanc when he gave
this response. If it had been true, this testimony would have
been consistent with his testimony that he told St. Blanc, “You
will find out,” not “You figure it out,” as St. Blanc testified.
Even under Terry’s version, however, St. Blanc had just asked
what Terry had meant by saying, “Better than you.” An answer
of “[y]ou will find out” would not have been a response that
would indicate why Terry had said, “Better than you” if, as
Terry testified, he had been referring to St. Blanc’s health.
(That is, assuming the necessary degree of rudeness or cruelty
in Terry, if Terry had been referring to St. Blanc’s health when
he said, “Better than you,” he would have said something like,
“My health is better than your health,” not “You will find out,”
when St. Blanc asked Terry what Terry had meant when he
said, “Better than you.”) I credit St. Blanc’s testimony that
Terry replied, “You figure it out,” when St. Blanc asked Terry
on June 23 what he meant by “Better than you.”
Additionally, as is undenied, when St. Blanc again casually
asked how Terry was at the start of their telephone conversation
of June 24, Terry replied: “Better than you; I hear you want to
be an observer for the election.” Clearly, therefore, both of
Terry’s “Better than you” responses to St. Blanc were designed
to impress upon him the animus that Respondent held toward
his union activities of button wearing and serving as a union
observer in the Board election. If there was any doubt about the
matter, Terry on June 24 gave the unusual order to St. Blanc to
report to his office when he returned from working as a union
election observer. The unusual nature of the request was proved
by Terry’s own testimony that he usually talks to general fore-

449 There was, however, no coercive interrogation in the event; also,
the General Counsel’s amended “disparagement” allegation is entirely
superfluous, and his amended “futility” allegation is entirely baseless. I
shall therefore recommend that both of these allegations be dismissed.
450 For purposes of this discussion, I accept Terry’s testimony that
his first “Better than you” exchange with St. Blanc occurred on June
23.
men rather than line foremen.451 The greater includes the lesser.
Terry’s giving the (subforeman’s level) employee an order to
report to him personally, I find, was notice that the employee
had been singled out. St. Blanc was not singled out because
Terry then contemplated a transfer of the employee,452 but be-
cause of his protected activities. I further find that Terry told St.
Blanc that he would have to make an accounting of his work,
and that he should be mindful of the “rules,” as St. Blanc fur-
ther testified. Terry obviously did this further to impress upon
St. Blanc that, because of his protected activities, he was sub-
ject to scrutiny that other employees were not subject to. I
therefore conclude that, as alleged, in violation of Section
8(a)(1), Respondent, by Terry, on June 24, 1993, threatened an
employee by telling him that he would engage in closer super-
vision of the employee’s work because the employee had aided
or supported the Union.
Respondent’s knowledge of St. Blanc’s prounion sympathies
is, of course, not denied; in fact, St. Blanc was on Terry’s list of
prounion supporters possibly even before Terry knew that he
was to serve as an alternate observer in the June 25 Board elec-
tion.453 It was not until Terry learned that St. Blanc was to serve
as a union observer, however, that St. Blanc was reassigned
from the comparatively pleasant atmosphere of the plug shop to
the lugubrious duty of cable-pulling on the ship. Terry admitted
that he made the decision to reassign St. Blanc on June 28. June
28 was the first workday after the Board election, the results of
which Terry was so profoundly disappointed (if not angered).
Therefore, in addition to the explicit and implicit expressions of
animus contained in Danos’ June 3 remark that “word” had
reached Gerdes that he was wearing prounion insignia, and in
addition to the implicit expression of animus in Terry’s June 23
remark of “Better than you. . . . You figure it out,” St. Blanc
was (1) unlawfully threatened with unspecified reprisals be-
cause of his prounion sympathies, (2) unlawfully threatened by
the supervisor who ultimately made the decision to reassign
him to more onerous duties, and (3) immediately reassigned to
more onerous duties after he demonstrated those sympathies by
serving as a union observer in the Board election. Even without
reference to Respondent’s animus toward all other employees
who expressed prounion sympathies (by wearing prounion
insignia or otherwise), it is obvious that the General Counsel
has presented a prima facie case that St. Blanc was unlawfully
reassigned to more onerous duties on June 29, and the burden
shifts to Respondent to demonstrate by a preponderance of the
evidence that it would have taken the same actions against St.
Blanc even in the absence of his known protected activities.
Respondent’s defenses must therefore be examined.
Terry testified that Grimes told him that St. Blanc was off
light duty “shortly prior to the transfer.” Grimes, however,
testified that he told Terry that St. Blanc was off light duty as
early as April; Grimes would not have so testified if it had not
been true. Terry, therefore, necessarily had known for months
that St. Blanc had recovered from his October 1992 injury, but
he left St. Blanc in the plug shop until St. Blanc wore prounion

451 On day-42 of trial, Terry testified: “I don’t normally direct the
foremen; I don’t normally deal at a foreman’s level. I deal at the gen-
eral foreman level.”
452 To be noted is the fact that, when Terry decided on June 28 to
transfer St. Blanc, he did not then talk directly to the employee about
the matter.
453 Terry testified that his list of “Union supporters” was created
throughout the month of June.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1384
insignia and disclosed that he was going to act as a union ob-
server.
Terry testified that he met with his general foremen and told
them that “some additional power mechanics” were needed on
LSD-50 and told them to let him know the names of “some
additional power mechanics” who could be transferred to that
ship. Terry was asked and he testified:

Q. And ultimately, was a particular power electrician
found to transfer over to that vessel?
A. He was.
Q. And who was that power electrician?
A. Richard St. Blanc.

This was a clear admission that St. Blanc was the only electri-
cian who was transferred to LSD-50, and I do not believe
Terry’s other testimony that there may have been other trans-
ferees but he could not remember the names of others who were
similarly transferred. (Certainly, in other cases where Respon-
dent could show that other employees received treatment simi-
lar to that received by the alleged discriminatees, it was diligent
to do so.) I find that St. Blanc was singled out for transfer to the
LSD-50. Moreover, Terry’s testimony of a meeting of his gen-
eral foremen was corroborated by none of the general foremen
supposedly involved. (This is to be contrasted with the corrobo-
ration presented for Terry’s testimony about his meeting con-
cerning the petition of alleged discriminatee James “Danny”
Cox, supra.)
There is no doubt that Respondent could always use another
first-class electrician on a ship that was getting to a stage where
any electricians are being used. In view of Terry’s lie about the
general foremen’s meeting, and in view of his lie about discov-
ering that St. Blanc had been released for regular duty only just
before his June 28 decision, I do not believe his bare testimony
that there was a sudden need to transfer St. Blanc, and only St.
Blanc, to the LSD-50. Nor do I believe the testimonies of
Grimes and Gaudin to the extent that they sought to convey the
impression that the plug shop was overstaffed. Gaudin ulti-
mately admitted that his testimony to that effect was not true.
Moreover, Gaudin vacillated in his testimony about when it
was that the plug shop began working on plugs for LSD-50,
and, ultimately, he admitted that, on June 28, the plug shop was
“[p]robably about a month or maybe a month and a half” away
from being overstaffed to the point that he would recommend
that an employee be transferred out. Grimes was also com-
pletely incredible when he came up with his testimony that a
parts-shortage was responsible for the lack of work in the plug
shop for St. Blanc; if there had been any truth to that testimony,
either Terry or Gaudin would have made mention of the fact.
Also Grimes was forced to admit that, as of June 14, Respon-
dent was desirous of building up an inventory for use when the
LSD-50 was ready to receive plugs, and he had planned to keep
St. Blanc in the plug shop “indefinitely.”
Finally, I believe that both Terry and Gaudin lied when they
testified that Terry called Gaudin to his office and asked if
Gaudin knew of “a” first-class power electrician who might be
transferred to the LSD-50. Of course, only one such employee
worked under Gaudin at the time, and Terry undoubtedly knew
it. I do not believe that such a charade occurred; if it did hap-
pen, both Terry and Gaudin knew that Terry was actually tell-
ing Gaudin, without saying so, that he wished St. Blanc to be
reassigned to the LSD-50 for ulterior, and unlawful, purposes.
In summary, the entire scenario of testimony that Respondent
presented in defense of the reassignment of St. Blanc was false.
Respondent has not, therefore, met its burden of showing that it
would have reassigned St. Blanc to cable-pulling duties on June
29 even in the absence of his protected activities. I therefore
find and conclude that by assigning St. Blanc to more onerous
duties on June 29 Respondent violated Section 8(a)(3).
(2) St. Blanc’s warning notice and second
cable-pulling assignment
At some time before July 29, St. Blanc was transferred to
LSD-49 (or the “A-hull” as it was referred to in some testi-
mony). St. Blanc’s usual foreman on LSD-49 was Dennis Foret;
on July 29, Foret was absent, and Foreman James Imhoff took
Foret’s place. July 29 was a typically hot summer day in the
New Orleans area. In addition, according to the undisputed
testimony of St. Blanc, there was smoke from welding opera-
tions that were being conducted in the area to which St. Blanc
was assigned, part of the 05-level of LSD-49. St. Blanc testified
that he was assigned that day to the work of mounting panels
with employees Travis Hammond and Howard Breaud. Neither
Hammond nor Breaud testified. In doing this work, St. Blanc
testified, he, Hammond and Breaud were required to share a
drill motor and cord, blueprints and hardware (nuts and bolts).
As the three employees were working, some shipfitters who
were installing something in the area disconnected a fan that
had been providing circulation to the area. The shipfitters told
St. Blanc, Hammond and Breaud that the fan would have to
stay off for the rest of the day. St. Blanc testified that he then
went to the 04-level to find Imhoff “to get some more ventila-
tion put in.”
St. Blanc testified that when he found Imhoff, “I told Jimmy
that they was pulling the fan aside and [asked] if he could do
anything about it.” Imhoff replied that he could do nothing and
walked away. Further according to St. Blanc, a “safety man”
whose first name was Burt was standing “right there.” Accord-
ing to St. Blanc, he told Burt, “They are reducing our ventila-
tion up there, and it is already too hot and too much lack of
ventilation. I think it is a safety hazard. What do you think?
Can we do anything about it?” Burt and St. Blanc went to Gen-
eral Foreman Kenny Danos. According to St. Blanc, “I told
Kenny Danos what was going on up there.” Danos said he
could do nothing about the problem, and he waived to Gerdes,
who was in the area, to come over. Danos told Gerdes that
“Richard is complaining about the heat.” Gerdes told St. Blanc
to get back to work and, if he did not like the “working condi-
tions,” he could “clock out and go home.”
St. Blanc then went back to the 05-level where he spoke to
“a group of people who were around me while I was working.”
St. Blanc did not testify to the number that was in the “group,”
and he testified that he could identify only Hammond as one of
the group’s members. According to St. Blanc:

I told them that I went downstairs and complained
about the lack of ventilation and got chewed out, and it is a
condition that affects us all, and if they didn’t want to
speak up for themselves and try to get the ventilation cor-
rected—because I didn’t have any luck on my own—that I
didn’t care if they passed out on the deck, that I was going
to make it through the day. And that was it.

St. Blanc testified that his statement to the other employees
took “[a] minute,” and those employees continued to work
during that minute. Darrell Hall is another electrical department
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foreman who had a crew working on the 05-level on July 29.
St. Blanc further testified that, as he was talking to the group of
employees, Hall approached him. St. Blanc testified that Hall
“repeatedly asked me if that was my work area.” St. Blanc re-
plied that it was. St. Blanc further testified, “He left, and I was
resumed working.” St. Blanc further testified:

About 20 minutes later, when I was working, Jimmy
Imhoff and Darrell Hall came into the room that I was
working in.
They asked me if I was trying to encourage the work-
ers to complain about the lack of ventilation.
I said, yes, I was.
They told me not to do it again. . . . Then they left.

Based on this testimony by St. Blanc, paragraph 67 of the sec-
ond complaint alleges: “About July 29, 1993, Respondent, by
Darryl Hall and James Imhoff at its facility: (a) interrogated its
employees about their protected concerted activities; and (b)
threatened its employees with unspecified reprisals because
they engaged in protected concerted activities.”454
St. Blanc further testified that 20 minutes after Hall and Im-
hoff left the 05-level, he was approached by Terry, Gerdes and
Hall. According to St. Blanc:

Bob Terry asked me if I was encouraging the workers
to complain about the heat.
I told him the lack of ventilation is a condition that was
affecting us all, and then he re-asked the question, if I en-
couraged them to complain about the heat. And I said yes.
He said, “Well, here is what I am going to do for you,
Richard. I am going to give you a final warning citation
for being out of your work area and impeding your fellow
workers’ progress, and I am going to transfer you after
lunch . . . to B-hull to pull cable with Frank Lee. That way
you will be able to move around and catch a breeze, and
maybe you will cool off.”
Then I said, “You are trying to punish me, Mr. Terry.”
Then he didn’t reply. . . . And then they left the room.

As the testimony and a table of organization for the electrical
department that is in evidence indicates, Lee is a foreman for
crews that primarily pull cable.
Shortly after Terry, Gerdes and Hall left the 05-level, Imhoff
approached St. Blanc and presented him with the warning no-
tice that is in issue. The warning notice was signed by both Hall
and Imhoff. Checked are the boxes for the Avondale Employ-
ees’ Guide’s general offense-4 (“Wasting time, loitering or
leaving the working place without permission.”). and major
offense-15 (Threatening, intimidating, coercing, or interfering
with fellow employees in the performance of their duties.”).
Time of issuance is stated as: “11:45 a.m.,” and the time of
offense is stated as: “9:00 a.m., 7/29/93.” The “Reason for
Warning” space had been completed as:

Employee was observed out of his immediate work
area talking to another craftsmen [sic] which interfered
with the performance of that man’s duties.
This written warning comes after two verbal [oral]
warnings from Darrell Hall (W260) and James Imhoff
(W305).
This will be your final warning.

454 See fn. 445.
St. Blanc testified that he asked Imhoff who had initiated the
notice; Imhoff replied that it was Gerdes. Further according to
St. Blanc, he referred to the wording, “comes after two verbal
warnings” and:

I said, “When did I get two verbal warnings?”
And he said, “When we came and talked to you to-
gether; that constituted the two verbal warnings.”

St. Blanc testified that Imhoff told him to report to Foreman
Frank Lee on LSD-50 “after 12:00 on that day” (or immediately
after lunch). Instead, St. Blanc took a pass-out from Imhoff and
left the plant at noon. St. Blanc, according to an MCR that was
received in evidence, began working under Lee at 7 a.m. the
next day.
St. Blanc testified that when he reported to Lee, he was first
assigned to wrap “kick pipes.” The work was not particularly
difficult, but it required modest skills; certainly it required none
of the skills that had allowed St. Blanc to rise above a helper’s
classification. St. Blanc testified that, after he wrapped kick
pipes for 2 days, he was assigned to work with the rest of Lee’s
crew and pull long, extremely heavy cable; St. Blanc testified
that the cable that he pulled for 2 months under Lee was “about
four inches in diameter.” According to St. Blanc, that job was
“very strenuous,” and about 24 men were required to pull it.
There was one other first-class electrician on the crew, but the
others were new-hires and recent “transplants” from other de-
partments. That cable-pulling job lasted for 2 months before St.
Blanc was assigned to some work that is not in issue herein.
On cross-examination St. Blanc acknowledged that no one
else asked him to complain about the ventilation. Further on
cross-examination St. Blanc acknowledged that his pretrial
affidavit states, in part: “I returned to work the next day and
continued to pull the heavy cable until about two weeks . . .”.
On redirect examination, St. Blanc testified that it was “at
least” 2 weeks that he pulled 4-inch cable. St. Blanc again ad-
mitted pulling cable when there were just a few small strands
needed to complete a connection, but he testified that never
before had he been on a cable-pulling crew that pulled cable as
large as that which he helped to pull while working on Lee’s
crew.
St. Blanc’s Warning Notice and Second Cable-Pulling
Assignment—Respondent’s Evidence
Hall, who was the supervisor of another crew working on the
05-level of LSD-49 on July 29, testified (vol. 148) that early in
the day, while he was doing paperwork in his office on the
helicopter deck:

One of my employees, he approached me early that
morning saying that Richard St. Blanc was in their work
area complaining about the heat and trying to encourage
them to go and complain about the heat. And my em-
ployee affirmed that he was holding him up as well as
other employees from doing their job.

Hall identified the employee who made the report as Edmund
Guilliot; Guilliot did not testify. Hall testified that, after receiv-
ing Guilliot’s report, he went to the 05-level. According to Hall,
when he arrived he found St. Blanc who “was standing around,
but when he saw me he acted like he was doing a task, but he
wasn’t. You know, he was standing talking to employees.” Hall
told St. Blanc that if he was not in his work area he should go
there, “because he was holding up my people from doing their
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1386
job.” Hall testified that he could not recall if St. Blanc replied,
but he did recall that St. Blanc “left the area at that time.”
Hall further testified that about 2 hours’ later Guilliot ap-
proached him (again on the helicopter deck) and complained
that St. Blanc was again interfering with the work of the em-
ployees on Hall’s crew by encouraging them to complain to
their supervisors about the heat. Guilliot asked Hall to come
and do something “because he [St. Blanc] was holding him
[Guilliot] up from doing his job.” Hall contacted Imhoff. Hall
and Imhoff then went to the 05-level and confronted St. Blanc.
According to Hall, St. Blanc was still in Guilliot’s work area.
Imhoff asked St. Blanc if Hall had not previously told him to
stay in his own work area. St. Blanc replied that he was there
because the power electricians had only one set of blueprints to
share, “and so he was up there looking at the blueprint to see
what he had to do.” Imhoff told St. Blanc to go back to his own
work area. Hall testified that St. Blanc did walk away, and he
and Imhoff talked about the situation. Hall testified: “He asked
me what did I want to do about it, and I suggested that we
needed to let our general foreman know what had taken place,
which is Mr. Kenny Danos.”
Hall further testified that he and Imhoff did go to General
Foreman Danos and told him what had happened. According to
Hall, Danos told Hall and Imhoff that he would report the mat-
ter to Gerdes and Terry. Shortly thereafter, Terry and Gerdes
approached Hall while he was, again, on the helicopter deck.
Hall testified:

I explained to him [Terry] about the complaint that I
had from Edmund Guilliot and that Mr. St. Blanc was
complaining about the heat, and he was encouraging other
employees to go to their foremens and complain about the
heat also.

After that, further according to Hall, he, Terry, and Gerdes
went to the 05-level and approached St. Blanc. Terry told St.
Blanc “not to be encouraging other employees to complain,”
because the foremen knew about the heat situation and all that
could be done was being done. Hall was then asked and he
testified:

Q. Did Mr. Terry ever tell St. Blanc that he was going
to get a warning notice for disturbing other people?
A. Not to my knowledge.
Q. Did Mr. Terry say that Mr. St. Blanc was going to
get a warning notice for complaining about the heat?
A. Not to my knowledge.
Q. Did Mr. Terry say that St. Blanc was—he was go-
ing to transfer St. Blanc to another ship in order for him to
catch a breeze and cool off?
A. Not to my knowledge.

After this testimony Hall was shown the above-quoted warning
notice that was issued to St. Blanc. Hall testified that he did not
know who drafted the warning notice, and he denied knowing
when he signed it as the “Witness.” When asked why he signed
as the “Witness,” Hall answered: “Well, that is just the normal
procedure that I would sign as a witness by my employee [Guil-
liot] being involved in it, and I was the one that voiced a com-
plaint.”
On cross-examination Hall was asked if Guilliot had told
him how St. Blanc had interfered with his work; Hall replied,
“He [Guilliot] basically said that he [St. Blanc] was in his
[Guilliot’s] way.” Hall admitted, however, that Guilliot did not
say how it was that St. Blanc could have gotten “in his way.”
Later in his cross-examination, Hall testified that he could not
recall if Guilliot had told him how St. Blanc had impeded his
work. Still later in the cross-examination, Hall admitted that
Guilliot described no act by St. Blanc that would have inter-
fered with Guilliot’s work. Hall also admitted that he, himself,
saw St. Blanc do nothing that would have interfered with the
work of other employees.
Hall admitted that he occasionally found employees talking
and not working, and he would tell them to get to work. If he
came back later and the employee was still talking, without
working, he would give him an oral warning. Hall further testi-
fied that he played no part in issuing the warning notice to St.
Blanc, he did not know who wrote it out, and he did not re-
member who brought it to him for signing. In none of his testi-
mony did Hall make mention of a warning notice for St. Blanc
being discussed between himself and Imhoff, inside or outside
the presence of St. Blanc.
Imhoff (vol. 148) testified that Hall came to him on July 29
and stated that “Richard had been caught out of his work area
several times stopping his people, Darrell’s people, from doing
their assigned job.” Imhoff further testified that Hall then told
him: “That it wasn’t the first time; he had given him two verbal
[oral] warnings before Darrell had come to see me.” Imhoff
responded to Hall: “Let’s go talk to Richard St. Blanc.” When
they reached St. Blanc, further according to Imhoff, he asked
St. Blanc what he was doing out of his work area, but, “He
didn’t give any particulars of why he was there.” Imhoff testi-
fied that he then told St. Blanc that he would be getting a warn-
ing notice; St. Blanc replied, “You have got to do what you
have got to do.” Imhoff further testified that Hall then left the
area and he and St. Blanc “continued to talk.” Imhoff testified
that he did not know where Hall went as he and St. Blanc “con-
tinued to talk.” (Of course, this is contrary to Hall’s testimony
that he and Imhoff went to see Danos who, in turn, stated that
he would notify Terry and Gerdes about the situation.) Imhoff
further testified that, after Hall left the area, he and St. Blanc
continued to talk and he explained to St. Blanc that he agreed
that “work conditions were getting kind of unbearable.”
Imhoff further testified that, after he and St. Blanc spoke, he
went directly to his office, wrote out the warning notice, took it
to Hall to sign as a witness, and then took it to St. Blanc. Im-
hoff flatly denied that he consulted in any way with Terry,
Gerdes, Danos or “anybody” else about the warning notice or
its wording. Imhoff testified that, when he presented the warn-
ing notice to St. Blanc, St. Blanc asked for a pass-out to leave
at noon.
Imhoff denied that he accused St. Blanc of trying to get other
employees to complain about the heat. He testified that he is-
sued the warning notice to St. Blanc only “for being out of his
assigned work area and for impeding production of other
workmen.” Finally on direct examination, Imhoff denied that
he had any input into the decision to reassign St. Blanc from
LSD-49 to LSD-50.
On cross-examination, Imhoff testified that Hall told him
that he (Hall) had warned St. Blanc about being out of his area
and disturbing employees on July 28. Imhoff then testified that
the decision to issue a warning notice to St. Blanc was “pretty
much a co-decision between Darrell Hall and myself.” When
asked to describe how the “co-decision” came about, Imhoff
testified:

AVONDALE INDUSTRIES

1387
Just after we confronted St. Blanc, and he really didn’t
have any definitive answers of why he was where he was
or what he was talking about, couldn’t prove—when he
couldn’t prove that, I said, “Well, I am going to leave it up
to Darrell.”
And Darrell says, “This is the third time; we can’t keep
having this; write the citation.”
And I agreed that if it was the third time, he had two
verbal warnings before that, is why he got the citation.

Imhoff then testified that, when he was drafting the warning
notice, he was counting oral warnings that Hall had said he had
given to St. Blanc the day before. Imhoff acknowledged that he
had not given any previous oral warnings to St. Blanc.
Gerdes (vols. 122, 123) testified on direct examination that
when he and Terry came to St. Blanc’s work area Terry spoke
to St. Blanc, and St. Blanc complained about the heat; Terry
agreed that it was terrible and told Gerdes to investigate the
matter. Gerdes testified that he then contacted Imhoff and Foret
(although, again, Foret was not there that day), and Imhoff and
Foret told him that the matter was being corrected. Without first
asking Gerdes what else was said during the exchange between
St. Blanc and Terry, Respondent’s counsel led Gerdes directly
to denials that Terry asked St. Blanc if he had been encouraging
other employees to complain about the heat, that Terry told St.
Blanc that he was going to be issued a warning notice, that St.
Blanc was going to be reassigned to another ship, or that he
could then cool off as he caught breezes while cable-pulling.
Gerdes further testified that St. Blanc did not ask Terry if Terry
was punishing him. Gerdes further testified on direct examina-
tion that, because of the work flow, he often moved personnel
from ship to ship, but he did not testify that there was any need
to transfer St. Blanc from one ship to another on July 29 or 30.
On cross-examination, Gerdes was evasive about how he and
Terry happened to be together on LSD-49, but he did testify:

I do remember that day Mr. Terry was with, and I think it was
Imhoff - Mr. Imhoff, and Mr. Foret, that did say that Richard
St. Blanc was—they said something to the effect—it was ei-
ther to myself or Mr. Terry, that it was not the heat, but it was
the disruption or lost time we were having. . . . The disruption
was that Mr. St. Blanc was supposedly soliciting employees
to complain.

Gerdes testified that he and Terry went to St. Blanc’s work area
only: “Because we didn’t know what the condition was.”
It will be remembered that, in the discussion of the case of
alleged discriminatee John Joseph, Gerdes was asked on cross-
examination if there were rules about when electricians could
leave the ship. Gerdes did not mention an “11:30 rule” on
cross-examination, but, after Respondent’s counsel requested a
break, Gerdes came back on redirect examination and testified
that there was such a rule and that Joseph had clearly violated
it. After that same counsel requested break, Gerdes also testi-
fied on redirect examination that the only report that he and
Terry received about St. Blanc was that: “He was all over the
ship. He was out of his work area, and he was wasting time. . . .
And there were other people that he was conversing with that
were also wasting time.” Then Gerdes was led to testify that
neither he nor Terry had come to the ship to investigate the
reports that they had received about St. Blanc.
When returned to re-cross-examination, however, Gerdes
was asked if Imhoff had not told him and Terry that St. Blanc
was soliciting other employees to complain; Gerdes replied,
“Yes, to that—somewhat to that degree. Yes.” Gerdes was also
asked how his testimony on redirect examination could be rec-
onciled with his cross-examination; Gerdes testified, “I think I
expressed my feelings to you about what Mr. St. Blanc had
said.” Of course, Gerdes had not been asked about his “feel-
ings.”
On direct examination Terry testified (vol. 90):

I was making my rounds with [Gerdes], and we were
on LSD-49 up in the superstructure of the vessel, and I
happened to walk in there in Mr. St. Blanc’s work area,
and Mr. St. Blanc reported to me that he was very con-
cerned about the lack of ventilation or inadequate ventila-
tion in his work area at that time.

Terry testified that he agreed with St. Blanc that it was hot, and
he told Gerdes to investigate the matter. Terry testified that he
did not recall anything else being said between him and St.
Blanc; Terry specifically denied asking St. Blanc if he had been
encouraging other employees to complain about the lack of
ventilation, or that St. Blanc told him that he had been encour-
aging other employees to complain about the lack of ventila-
tion, or that he told St. Blanc that he was going to cause a warn-
ing notice to be issued to St. Blanc for being out of his work
area and impeding other employees, or that he was going to
transfer St. Blanc to another ship after lunch to pull cable and
“catch a breeze.” Terry further denied that he ordered any su-
pervisor to issue a warning notice to St. Blanc.
Terry testified that after he returned to his office, “that same
day” (July 29), Foret called him “to give me an update,” on
work that had been done to improve the ventilation in the area
where St. Blanc had been working. (As mentioned, of course,
Foret was absent on July 29; that is why Imhoff was then sub-
stituting as St. Blanc’s foreman. Terry’s willingness to lie about
the acts of persons who were not present was first demonstrated
in the case of discriminatee Molaison where Terry testified that
he took Molaison’s confession of misconduct and discharged
Molaison for that confessed misconduct even though Terry,
himself, was not present on the day that Molaison was dis-
charged.)
On cross-examination (vol. 92) Terry again testified that he
and Gerdes were making routine rounds when St. Blanc ap-
proached him about the heat. Terry denied that, before St.
Blanc approached him, anyone had reported to him that St.
Blanc had been complaining about the heat. Terry denied that
he knew anything about the warning notice that St. Blanc re-
ceived, and he denied knowing that St. Blanc was transferred to
another ship after their exchange on LSD-50 . He admitted that
employees are allowed to talk while they are working.
St. Blanc’s Warning Notice and Second Cable-Pulling
Assignment—Conclusions
In his lengthy brief on the issues surrounding St. Blanc’s
warning notice and second assignment to cable-pulling, the
General Counsel repeatedly argues that St. Blanc’s complaints
were concerted, and the General Counsel demonstrates why
those complaints should be considered to be concerted. This
was an easy argument, and demonstration, to make; even
Gerdes admitted that, when he and Terry came to the ship, Im-
hoff told them that St. Blanc had caused a “disruption,” and
Gerdes admitted, “The disruption was that Mr. St. Blanc was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1388
supposedly soliciting employees to complain.”455 Therefore, St.
Blanc was at least suspected of engaging in concerted activities
immediately before he was issued a warning notice and reas-
signed to cable-pulling duties.
The General Counsel, however, makes no argument on brief
of how it can be said that St. Blanc’s activities of July 29 were
statutorily protected. On brief, the General Counsel does not
contend that St. Blanc was engaging in any strike, or prestrike,
activity. As St. Blanc, at all relevant times, was being paid to
work, he should have been working, or talking and working,
and his nonwork activities were therefore not protected. The
General Counsel never contends that St. Blanc continued work-
ing every minute that he spoke to other employees, and I do not
believe that he did. Nor do I believe St. Blanc’s testimony that
he was always in his immediate work area when he was talking
to the other employees about the working conditions. I do not
believe St. Blanc’s testimony that he only spoke to employees
when he was going to share blueprints or tools. That is, al-
though neither Guilliot’s report to Hall, nor Hall’s or Imhoff’s
observations of St. Blanc, is probative evidence that St. Blanc
caused any other employee to stop working, I nevertheless find
that St. Blanc stopped his own work to encourage other em-
ployees to complain, and St. Blanc’s so doing was not activity
that was protected under the Act.456 Therefore, St. Blanc was
subject to discipline for his conduct of July 29, but, because a
strong prima facie case of unlawful discrimination has been
made by the General Counsel, Respondent must have demon-
strated that St. Blanc was disciplined in a nondisparate way.
The warning notice that was issued to St. Blanc recites:
“This written warning comes after two verbal [oral] warnings
from Darrell Hall (W260) and James Imhoff (W305).” More-
over, Hall testified that he would issue at least two oral warn-
ings to an employee whom he found to be talking instead of
loafing. The recitation in the warning notice and the admission
by Hall make it clear that Respondent did not consider St.
Blanc to be subject to a warning notice until he committed the
offense after two oral warnings, or at least after two oral in-
structions to get back to work.
Imhoff testified that Hall had told him that he had warned St.
Blanc about his conduct twice the day before, and these are the
warnings to which he made reference in the warning notice.
Imhoff is belied by his own words on the warning notice which
are that both he and Hall had previously warned St. Blanc
twice. Moreover, if Hall had warned St. Blanc the day before,
and if he had told that to Imhoff, Hall assuredly would have so
testified. Hall, I find, had done no such thing, and Imhoff’s
testimony on the issue was clearly false. St. Blanc did get two
instructions to stop talking about the lack of ventilation; the
first was when Hall came to the 05-level, and the second was
when Hall and Imhoff came there together. Contrary to the
assertion on the warning notice, there is simply no evidence
that St. Blanc continued talking to other employees after his

455 Other evidence that St. Blanc’s activities were concerted lies in
St. Blanc’s credible testimony and the above-quoted admissions by
Hall.
456 St. Blanc’s testimony that Hall and Imhoff asked him what he
was doing, and told him to stop it, was credible. Because St. Blanc’s
activity was not statutorily protected, however, the testimony cannot, of
course, support the allegations of unlawful interrogation or threat. I
shall therefore recommend dismissal of those allegations of the com-
plaint.
second instruction not to do so.457 The recited predicate for the
warning notice, therefore, was missing and its spurious nature
is thereby disclosed.
Imhoff, I further find, also falsely testified that, in St.
Blanc’s presence, he asked Hall what he thought should be
done and Hall replied, “This is the third time; we can’t keep
having this; write the citation.” Hall did not testify that a warn-
ing notice was even mentioned when he was in the presence of
Imhoff and St. Blanc (and neither did St. Blanc). Indeed, Hall
testified to total ignorance of how, or when, the warning notice
came to be drafted; he further testified that he signed the warn-
ing notice as a witness only because a member of his crew,
Guilliot, had been involved. Respondent suggests no rationale
by which the testimonies of Hall and Imhoff on this point can
be reconciled.
Hall further testified that, after he and Imhoff left St. Blanc,
they went to General Foreman Danos to report the matter. Da-
nos told them that he would report the matter to Terry and
Gerdes. Clearly Danos did so because, as St. Blanc testified,
within 20 minutes after Hall and Imhoff had left St. Blanc on
the 05-level, Terry and Gerdes appeared. (And, as St. Blanc and
Hall testified, Hall was with them.)
Gerdes was evasive and forgetful about why he and Terry
came to be in St. Blanc’s work area. Terry testified that he and
Gerdes were making routine rounds, and they “happened” upon
St. Blanc. Hall, however, testified that when Terry and Gerdes
came to the ship he told Terry and Gerdes that: “St. Blanc was
complaining about the heat, and he was encouraging other em-
ployees to go to their foremens and complain about the heat
also.” It was then that Hall, Terry and Gerdes went to St.
Blanc’s work area. Hall would not have so testified if it had not
been the truth.
Terry and Gerdes testified that, when they “happened” upon
St. Blanc, Terry only commiserated with St. Blanc about how
hot it was and Terry ordered an investigation (which included
Foret, who was absent that day). Gerdes admitted that, when he
and Terry got to the ship, Imhoff told them that St. Blanc had
caused a “disruption . . . supposedly soliciting employees to
complain,” but both Terry and Gerdes denied that Terry asked
St. Blanc if he were “soliciting employees to complain.” That
is, Respondent would have me believe that, although Terry and
Gerdes got a report from Hall and Imhoff that St. Blanc was
“soliciting employees to complain,” when Terry and Gerdes got
to St. Blanc, they only discussed the heat and what would be
done about it. The palpable nature of this lie would be evident
even without a relevant background, but here the situation de-
veloped with the proven background of Terry’s fury at the con-
certed activity of alleged discriminatee James (Danny) Cox and
his petition about working conditions, as discussed above. But
more importantly, Terry and Gerdes were shown to have been
testifying untruthfully by the testimony of their own subordi-
nate. As Hall testified, when they came to the ship, Hall told
Terry and Gerdes that St. Blanc “was encouraging other em-
ployees to go to their foremens and complain,” Then, further
according to Hall, Terry (with Gerdes along) went to St. Blanc
on the 05-level and Terry there told St. Blanc “not to be en-
couraging other employees to complain.” Again, Respondent

457 I further find that, as St. Blanc testified, when he asked when his
second warning had occurred, Imhoff replied that the dual visit by him
and Hall was being counted as two warnings.
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suggests no way that the testimonies of Terry and Hall can be
reconciled.
Hall would not have testified that Terry told St. Blanc “not to
be encouraging other employees to complain” unless it had
been the truth. When further asked on direct examination if
Terry had also (1) told St. Blanc that he was going to get a
warning notice for disturbing other employees, (2) told St.
Blanc that he would get a warning notice for complaining about
the lack of ventilation, or (3) told St. Blanc that he was going to
transfer St. Blanc to another ship in order for him to catch a
breeze and cool off, Hall tried to avoid lying by answering
repeatedly: “Not to my knowledge.” This tactic, in my opinion
as the trier of fact, was an admission that St. Blanc, not Terry or
Gerdes, testified truthfully. I find that, as St. Blanc testified,
Terry asked St. Blanc if he was encouraging other employees to
complain about the lack of ventilation, and when St. Blanc
replied affirmatively Terry told St. Blanc that he was going to
cause St. Blanc to be issued a warning notice and that he was
going to cause St. Blanc to be transferred to the cable-pulling
crew of Lee on LSD-50. I further find that Terry did exactly
that.
In addition to Hall, other supervisors consistently testified
that, before issuing warning notices for loafing-type infractions,
they gave multiple oral warnings beforehand. As noted, how-
ever, the warning notice that was issued to St. Blanc was spuri-
ous from its inception because St. Blanc had not repeated his
offense after his second oral warning, contrary to the recitation
of the warning notice. The only reason that the warning notice
would have included a recitation that two oral warnings had
preceded St. Blanc’s last infraction is that Terry had ordered
that St. Blanc get a warning notice; Imhoff knew that he had to
draft the warning notice to look at least facially valid by includ-
ing at least one oral warning that had not been given. I so find.
Accordingly, I find that Respondent has not shown that it
would have issued the warning notice to St. Blanc, even in the
absence of his protected activities that preceded July 29. I
therefore conclude that by issuing that warning notice Respon-
dent violated Section 8(a)(3).
It is further clear that Terry did, in fact, order that St. Blanc
be reassigned to the cable-pulling crew of Lee on LSD-50. The
MCRs in evidence prove that St. Blanc reported to Lee at 7
a.m. on July 30. Respondent makes no suggestion of where St.
Blanc might have gotten the orders about where to report on
that day if they did not come as St. Blanc testified. That is,
Terry told St. Blanc that he would be transferred, and minutes
later, according to St. Blanc’s credible testimony, Imhoff told
St. Blanc to report to Lee’s crew.
Although Gerdes testified generally that transfers of employ-
ees among ships are often necessary, neither Gerdes nor any
other supervisor testified that there was any business necessity
for the transfer of St. Blanc from LSD-49 to LSD-50 on July 29.
The sequence of events, and the credited testimony, prove that
St. Blanc was transferred as punishment. Assuming that the
warning notice was punishment only for St. Blanc’s nonpro-
tected activity, and further assuming that the warning notice
was lawfully issued, Respondent makes no argument that em-
ployees are sometimes punished by reassignments, as well as
warning notices, for loafing-type offenses (or any disciplinary
offenses). Respondent has made no effort to show why St.
Blanc was so disproportionately punished by his reassignment
on July 29. Respondent has therefore not shown that St. Blanc
would have been reassigned on July 29, even absent his pro-
tected activities that preceded that date.
The only issue remaining is whether the work to which St.
Blanc was assigned on LSD-50 was more onerous than that
which he had been doing immediately theretofore on LSD-49.
St. Blanc testified that the pipe-wrapping work that Lee ordered
him to do during the first 2 days was demeaning for a first-class
electrician, and I find that St. Blanc reasonably so concluded.
Moreover, St. Blanc’s testimony that the cable that he thereafter
pulled for at least 2 weeks was the heaviest that he had ever
pulled, and that testimony was not disputed (although Terry did
credibly testify that none of the ship’s cables was as large as
four inches in diameter). I therefore find that the work to which
St. Blanc was assigned for at least 2 weeks after he was trans-
ferred to LSD-50 was more onerous than the journeyman elec-
trician’s work that St. Blanc had been doing on LSD-49.
Accordingly, I find and conclude that Respondent assigned
St. Blanc to more onerous duties in violation of Section
8(a)(3).458
d. Sidney Jasmine
On December 20, 1993, Sidney Jasmine (vols. 23, 52), a
first-class electrician, was reassigned from the job of installing
electricalpanels to the job of pulling cable. On June 2, 1994,
when Jasmine was trimming wires for terminations of a cable
in a console, Electrical Department Superintendent Robert
Terry told Jasmine to pick up the refuse as he went, rather than
finish his trimming and then do the sweeping. The second com-
plaint, at paragraph 132, and the fourth complaint, at paragraph
35, respectively, allege that the cable-pulling assignment and
the pickup order constituted assignments to more onerous jobs
and that by making those assignments Respondent violated
Section 8(a)(3). The General Counsel contends that Respondent
ordered the reassignment and issued the pickup order because
of Jasmine’s known union activities and expressions of sympa-
thy which included his wearing and displaying prounion insig-
nia and his speaking up for the Union during an employer cam-
paign meeting. Respondent answers that the reassignment and
the order were nothing more than routine work assignments that
were based on the needs of the jobs. Ultimately, I find and con-
clude that Jasmine’s cable-pulling assignment was made in
violation of Section 8(a)(3) but the pickup order was not.
(1) Jasmine’s reassignment from skilled work
to cable-Pulling
Internal communications equipment throughout a ship in-
cludes such utilities as fire alarms and public address systems.
For several months before December 20, 1993, Jasmine worked
as an internal-communications electrician on LSD-50. Jasmine
testified that, as an internal-com-munications electrician, he
“hooked up,” or completed, connections of cables that other
employees had previously pulled to internal communications
panels or consoles. Louis Lester (vol. 135), Jasmine’s foreman,
described the internal communications work that Jasmine was
doing at the time of the reassignment in question; Lester testi-

458 Even if the work on LSD-50 was not more onerous, the statutory
word “discriminate” means to treat differently, not just to treat worse
(or even better). By the reassignment as punishment, in addition to the
punishment of the warning notice, St. Blanc was treated differently.
And, as I have concluded, St. Blanc was treated differently because of
his protected activities that preceded July 29.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1390
fied that, after the cable had been pulled to the panel that Jas-
mine was installing:

He had to straighten it [the cable] out, get it untangled,
get the panels ready, and you had like this box, what we
call a trough. He had to bolt to the top and drill it out first,
put all his ampere seals on it, fit it, put it up top, run his
cables, get them in, mark them, pull them back out, strip it,
clean it, put them back in, and shape, because according
your drawing—
That is why you had to be real good, because some
conductors went to—you had eight panels, and we have
some conductors in this one, some in this one, some in this
one, on down the line.

Jasmine admitted to doing only a minimal amount of cable-
pulling before the events of this case.
(As a matter of background, the General Counsel introduced
Jasmine’s testimony that in late 1992 he was given cable-
pulling assignments immediately after an incident in which he
spoke up for a fellow employee in a dispute with Electrical
Department Foreman Jerry Kaywood. According to Jasmine,
the cable-pulling assignment lasted until shortly after he made a
complaint at an employer campaign meeting in April, as dis-
cussed below. As well as background for Jasmine’s comment
that was made at that employer campaign meeting, the General
Counsel contends that Jasmine’s testimony about the 1992
cable-pulling assignment, coupled with the evidence of the case
of discriminatee St. Blanc, shows that Respondent uses cable-
pulling assignments as punishment. The General Counsel called
employee Samuel Selmon (vol. 30) to corroborate Jasmine’s
testimony about his 1992 cable-pulling assignment, but Selmon
testified that he and Jasmine were assigned to cable-pulling
some 2 months after the Kaywood incident. Kaywood did not
testify, but there is no evidence (such as an admission or testi-
mony about an admission) that would indicate that the 1992
assignment to Jasmine was made as punishment. Moreover, the
circumstantial evidence of timing is too weak to support a con-
clusion that in 1992 Jasmine was given a cable-pulling assign-
ment as punishment. I find that St. Blanc’s case is the only case
in which the General Counsel has shown that, before Jasmine’s
December 20 assignment to cable-pulling, Respondent used a
cable-pulling assignment as punishment.
Jasmine testified that he began wearing a prounion sticker on
his hardhat, and displaying one on his lunchbox, from the time
that the Union began its organizational campaign in March
through the date of his testimony. Jasmine testified that in
April, Foreman Ronald Lee conducted an employer campaign
meeting. Present were Terry and General Foremen Henry
McGoey and Arnold Dufrene. Jasmine testified that at the
meeting he spoke up and complained about his assignments to
cable-pulling (and cable-strapping, which is essentially the
same thing). Jasmine testified that he concluded his comment
by saying: “I was a prime example of why we needed a union.”
Jasmine testified that shortly after this meeting, he was reas-
signed to work as an internal-communications electrician on the
crew of Foreman John Crutchfield. Jasmine stayed on Crutch-
field’s crew for several months. Jasmine testified that while he
was working under Crutchfield he told Crutchfield that, “the
Union would be more of a benefit to us.” Crutchfield did not
testify and this testimony by Jasmine stands undenied.
Jasmine continued to work for Crutchfield and other inter-
nal-communications foremen on LSD-50 until the time of the
assignment that is in issue here. Jasmine testified that in No-
vember, when Lester was his foreman and Jimmy Mancuso was
his general foreman, he was approached by Lester; Lester told
Jasmine that he was pleased with Jasmine’s work, but Mancuso
did not want Jasmine to continue working on LSD-50. On De-
cember 17, Jasmine was working in a place known as Damage
Control Central (or DC Central), which is the control center for
alarms and other disaster-related communications, when he was
approached by Lester. According to Jasmine, Lester told him
that on December 20 he was to report to another ship, the mine
hunter, to pull cable because Mancuso did not want him work-
ing in DC Central.459
On the mine hunter Jasmine worked under Foreman Delling
Thibodeaux. Jasmine compared the cable-pulling work that he
did under Thibodeaux with the internal communications work
that he had done on LSD-50 as:

Well, IC [internal communications] work is clean
work. It is not very strenuous work in comparison to cable
pulling. It [cable-pulling] is dirty. It is strenuous, and there
is a lot of climbing involved. You have to climb over mo-
tors or tanks or whatever obstacle may be in the path of
the cable that you are pulling. It is very physical.

This testimony was not disputed. Jasmine further testified that,
when he was cable-pulling, he was using none of the skills he
had needed to work as a first-class internal-communications
electrician. Jasmine testified that he continued pulling cable
until May 1994 when he was assigned to do internal communi-
cations work aboard the mine hunter. Although Jasmine was a
first-class electrician, the leadman for the cable-pulling aboard
the mine hunter was Karon Bradley, a second-class electrician.
There were about 12 employees on Bradley’s crew (again, un-
der Foreman Thibodeaux), and Jasmine testified that he was the
only first-class electrician for about 2 months. In February, two
other first-class electricians joined the crew. Jasmine testified
that, in his prior experience, second and third class electricians,
and helpers, usually manned cable-pulling crews, not first-class
electricians.
Jasmine’s Assignment to Cable-Pulling—
Respondent’s Evidence
Respondent’s engineering department writes work orders for
specific jobs (such as cable-pulling) that are to be done on a
ship. The work order numbers appear on the MCRs that the
employees sign each day. Through Robert Oehmichen (vol.
153), Respondent’s manager of production engineering, and
through Jennifer Adams (vol. 154), a project leader in Respon-
dent’s information resources department, Respondent intro-
duced records that reflect that Jasmine worked on cable-pulling
crews for all, or almost all, of the full workdays from June 18
through September 28, 1990, from April 21 through May 27,
1992, and from September 2, 1992, through March 31, 1993.
Jasmine was not called in rebuttal to contradict this evidence.
Foreman Lester testified that it was he who selected Jasmine
for transfer from the LSD-50 to the mine hunter. Lester freely
admitted that he knew at the time that Jasmine was a prounion
employee; Lester had heard Jasmine talking about the Union as
he worked and, as Lester put it: “He wore union stickers on his

459 On Br., p. “Electrical-159,” Respondent states that the General
Counsel’s witness Merland Farria contradicts Jasmine’s testimony
about “this event.” Farria, however, testified about an (ultimately ir-
relevant) event that occurred a week before December 17.
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hat.” Lester testified that in November General Foreman
Mancuso told him that Terry had been dissatisfied with the
quality of the electricians that the LSD program had theretofore
sent to the (newer) mine hunter program. Lester further testified
that during the week of December 17, General Foreman
Mancuso told him that Terry had ordered Mancuso to send a
first-class internal-communications electrician to the mine
hunter. Lester testified that, at the time, he had two internal-
communications electricians on his crew, Jasmine and William
Evans. Lester testified that he selected Jasmine because he
knew that Jasmine did good work, but Evans had only been on
his crew for about 2 weeks and Lester had not formed an opin-
ion of him. Lester had other first-class electricians on his crew,
but he did not consider them because they were not internal-
communications electricians and Mancuso had told him that
Terry specifically wanted an internal-communications electri-
cian sent to the mine hunter.
Lester testified that when he told Jasmine that he was to be
transferred, he only stated that the mine hunter program needed
another internal-communications electrician. Lester denied that
he told Jasmine that Mancuso did not want him working in DC
Central; Lester denied mentioning Mancuso at all. (And Lester
also denied that Mancuso had told him that he did not want
Jasmine in DC Central.) Finally, Lester testified that he could
not have told Jasmine that he would be pulling cable on the
mine hunter because he did not know that Jasmine would be
pulling cable on the mine hunter. Lester acknowledged that,
when Jasmine left LSD-50, there were about 3 weeks of work
left for him to do on the panel of DC Central that he had been
working on.
On cross-examination Lester testified that in the few weeks
before December 17 his crew was pulling cable and “hooking
up” (completing installation of power or internal communica-
tions cable). Lester testified that he had Jasmine hooking up,
rather than pulling cable, because “I knew he was a very good
hook-up man.” Lester was asked what he usually did when he
found that he needed more labor. Lester testified that he would
go to his general foreman and: “If I am hooking up, I would
say, ‘I need more hook-up people.’ If I am pulling cable, I just
say, ‘I need more bodies.’” Further during cross-examination,
Lester admitted that, although the job on which Jasmine was
working on December 17 would have taken only about 3 more
weeks, there were at least 2 additional months of work on LSD-
50 that he intended to assign to Jasmine.
Mancuso (vols. 131, 141) testified that Terry “called and just
told me he needed a first-class IC mechanic [for the mine
hunter program] and not to send him any trash.” Mancuso de-
nied that Jasmine’s name was mentioned in the telephone call
with Terry. Mancuso testified that he contacted Lester because
“[h]e is the IC foreman.” Mancuso acknowledged that on LSD-
50 he had another internal communications foreman, Crutch-
field, but he did not call Crutchfield about Terry’s order be-
cause Crutchfield’s crew was doing work that had to be com-
pleted before the work of Lester’s crew.
Mancuso testified that he called Lester and: “I told him we
needed a first-class IC mechanic to go to the mine hunter,” and
Lester selected Jasmine. Mancuso denied that he ever told Les-
ter that he did not want Jasmine working in DC Central.
Mancuso further testified that he had no reason to say such a
thing because Jasmine was a good worker. Mancuso confirmed
that Jasmine still had work to do on the LSD-50, but he sent
Jasmine to the mine hunter, “Because Mr. Bob [Terry] wanted
me to send him a first-class IC mechanic.” Mancuso denied that
he had any knowledge of Jasmine’s prounion sympathies.
On cross-examination Mancuso testified that, before the
week of December 17, he told all of his 16 foremen on the
LSD-50 to expect to lose some electricians to the mine hunter
program, but he admitted that Jasmine was the only one whom
he could remember who went to the mine hunter. Mancuso
testified that he had a “general sense” that there were such oth-
ers.
Terry (vol. 90) testified that Production Vice President
Simpson told him that the needs of the mine hunter were para-
mount to the needs of all other ships in the yard because the
mine hunter was behind schedule and that failure of the mine
hunter program could bring financial ruin to the Company.460
Terry further testified that the mine hunter has the most com-
puters and the most complex electrical wiring systems of any
ship that Respondent has ever built. Terry testified that the ship
is the only one that Respondent has built that has four segre-
gated wireways. The segregated wireways are necessary, Terry
testified, to prevent the creation of electromagnetic interference
that disrupts the operation of the computers. It is therefore im-
perative, Terry testified, that the cables of the mine hunter be
pulled correctly within those wireways.
Terry testified that he decided to use first-class electricians to
pull the cables on the mine hunter because:

Number one, we started to realize rework because the
cabling was being installed in the wrong wireways, and
number two, we realized schedule slippage. So my deci-
sion was to infuse the job with a higher skill level of peo-
ple so that I could improve the quality of the work and
also the production of the work.

Terry testified that to accomplish that end:

What I did was, I called a meeting of my general
foremen, which represents all of the work in the shipyard.
Each general foreman [is] basically assigned to a different
contract.
And I know as the manager of the Electrical depart-
ment where we can—where the talent is, where the most
expertise is, and also schedule adherence, what that is
across the board in the department.
And I made the general foremen aware that we had
this need on the mine hunter program to get additional
skill level higher expertise people assigned to the job to
assist in cable-pulling. And in particular, I told General
Foreman Jerry Gerdes that I wanted him to give at least
one first-class IC mechanic to the mine hunter program,
because that was an area, one particular area where we
needed the help.

Terry denied that, at the time of this meeting, he knew of Jas-
mine’s prounion sympathies, or even knew who Jasmine was.
Terry denied that he named any electrician to be transferred
from the LSD program to the mine hunter program.
On cross-examination Terry testified that during the period
in question he was transferring “four to six people at a time”
from the LSD program to the mine hunter program, but he con-
firmed that at his meeting of general foremen he asked Gerdes
for only one first-class internal-communications electrician to
be sent to the mine hunter. This testimony, however, was con-

460 Simpson (vol. 139) supported this testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1392
tradicted by Lester; on cross-examination Lester testified that
LSD-50 had four, or more, segregated wireways.
Gerdes (vols. 122, 123) also testified that he attended a meet-
ing of general foremen with Terry and that meeting concerned
staffing of the mine hunter program. Gerdes testified: “He did
say he wanted a cross-sector of the five groups, first-, second-,
third-, fourth-class of lighting, power, IC, electronics, cable-
puller, and electrical layout personnel.”461
Gerdes was further asked and he testified:

Q. [By Mr. Hymowitz]: Now, what did you do after
you received this message from Mr. Terry?
A. I immediately went and had meetings with my su-
pervisors on both [LSD] ships at that time and discussed
with them as a group what peoples we could release—our
better peoples—our top-of-the-line mechanics we could
release without impacting the job—my job—to send over
to the mine hunters.
Q. Now, did you specifically select yourself—did you
specifically select anybody to go over to that particular
mine hunter job?
A. No.
Q. Who did the selections?
A. The line supervisors—of [from] the five groups that
we just expounded upon.

Thibodeaux (vol. 130) testified that, at the time that Jasmine
was transferred to his crew on the mine hunter, “We were heav-
ily pulling cable at this time. Also the status of the job at that
time, we were running behind.” Thibodeaux testified that, about
a week before Jasmine was transferred to his crew, he met with
his general foreman, Jerry Bourque, and told him that he
needed more first-class internal-communications electricians to
help pull cable because he then had only “approximately three”
on his crew. Thibodeaux testified that Bourque said that he
would get back to Thibodeaux about the matter. Thibodeaux
further testified that he asked for first-class electricians because
of the complexity of the cable-pulling aboard the mine hunter
and the close quarters in which work had to be done (a mine
hunter being much smaller than other ships).
On December 20, Jasmine’s first workday under
Thibodeaux, Thibodeaux had a crew of 13 employees, includ-
ing Jasmine. Seven of those employees, including Jasmine,
were first-class electricians. Two of those first-class electri-
cians, in addition to Jasmine, were internal-communications
electricians; they also pulled cable, according to Thibodeaux.
Thibodeaux did not testify that any other employees (first class
or otherwise) were transferred to his crew about the time that
Jasmine was transferred to his crew. Thibodeaux acknowledged
that the leadman of the cable-pulling employees, Bradley, was a
second-class electrician; Thibodeaux testified that he made
Bradley the leadman because he had been on the mine hunter
even longer than Thibodeaux himself. Thibodeaux further ac-
knowledged that, when Jasmine arrived for work on his crew,
he was wearing prounion stickers on his hardhat.
Respondent also introduced the testimony of Electrical De-
partment Foreman Randy Owen who was in charge of a power
crew (as opposed to an internal communications crew) when
Jasmine arrived on the mine hunter. Owen testified (vol. 136)

461 The General Counsel moves on brief to correct the transcript, vol.
122, p. 30,017, L. 9. This testimony by Gerdes makes the motion moot;
moreover, the transcript is correct.
that several members of his power crew were first-class electri-
cians, and several of them pulled “cable,” but he acknowledged
that most of those “cables” were actually “feeder” lines to ca-
bles; that is, they were not the full cables of the weight that
some employees on Thibodeaux’s crew were pulling.462
Jasmine’s Reassignment to Cable-Pulling—Conclusions
Respondent contends that no prima facie case of unlawful
discrimination against Jasmine has been established because
Jasmine, himself, was never unlawfully threatened and because
of the lapse of time between Jasmine’s speaking at an April
employer campaign meeting and his December 20 reassignment
to cable-pulling aboard the mine hunter. As admitted by
Thibodeaux, however, Jasmine continued to wear prounion
insignia on his hardhat through the date of the reassignment. As
I have concluded above, Respondent’s supervisors continued to
unlawfully threaten its employees for wearing prounion insig-
nia even after December 20; to wit: Machine Shop Foreman
Autin, in April or May 1994, Paint Department Foreman San-
chez, on or about April 20, 1994, and Sheetmetal Department
Foreman DeNicola, on June 6, 1994, threatened Respondent’s
employees specifically because they were wearing prounion
insignia. There is no reason to believe that, about December 20,
there was some hiatus in Respondent’s animus toward its em-
ployees who wore prounion insignia. Moreover, as I have fur-
ther concluded above, Respondent’s threats in various forms
continued through 1994, including a threat of discharge by
Production Vice President Simpson and, specifically, a threat of
transfer to more onerous working conditions by Pipe Shop
Foreman Mouton. Again, there is no reason to believe that this
animus had somehow abated at the time of Jasmine’s reassign-
ment.
As well as wearing the prounion insignia, Jasmine did speak
up for the Union at an employer campaign meeting conducted
by Foreman Lee by saying: “I was a prime example of why we
needed a union.” Terry, it is undisputed, was present at that
meeting. Despite his denials, Terry is further charged with
knowledge of Jasmine’s prounion sympathies by Jasmine’s
wearing of prounion insignia. Terry testified that he regularly
made “rounds” to inspect the work of the electrical department
employees, and Terry assuredly would have seen Jasmine wear-
ing his hardhat with the prounion stickers. Additionally, Terry
acknowledged keeping a list of “Union supporters,” and he
acknowledged that he charged his subordinate supervisors with
keeping him informed of who those prounion employees were.
From Jasmine’s comments to his supervisors, as well as his
wearing of prounion insignia, it is safe to conclude, as I do, that
Jasmine was on Terry’s list of union supporters. I find that
Terry, as well as all other supervisors who were involved in the
decision to reassign Jasmine to cable-pulling duties aboard the
mine hunter, knew Jasmine, and they knew of his prounion
sympathies. The General Counsel has, therefore, presented a
prima facie case of unlawful discrimination against Jasmine,
and Respondent must have demonstrated by a preponderance of
the evidence that it would have reassigned Jasmine to cable-

462 Contrary to the assertion of Respondent (at Br., p. “Electrical-
155”), Owen did not testify that any other employees were transferred
to his crew about the time that Jasmine was transferred to Thibodeaux’s
crew. Jim Trent, according to Thibodeaux, was the third electrical
department foreman on the mine hunter at the time that Jasmine was
transferred to his crew; Trent did not testify, and there is no evidence
that he received any electricians at the time.
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pulling aboard the mine hunter even in the absence of Jas-
mine’s protected activities.
It is undisputed that Jasmine’s work aboard the mine hunter
was less sophisticated, more strenuous and relatively less
“clean” than the internal communications work that Jasmine
had been doing for about 8 months aboard the LSD-50. The
work to which Jasmine was assigned on December 20 was,
therefore, more onerous than the work which he had been doing
when that assignment was made. The only remaining issue is
whether Respondent would have selected Jasmine for that more
onerous work even absent his protected activities.
On brief, page “Electrical-163,” Respondent states:

On Thibodeaux’s crew in addition to Jasmine, 3 other First
Class Electricians pulled cable. In fact over 20 electricians
were transferred to the [mine hunter] at around the same time
Jasmine was transferred.

There is documentary evidence for the proposition of Respon-
dent’s first quoted sentence; there is none for the second. For
all of Respondent’s testimony about the necessity of transfer-
ring electricians, specifically first-class electricians, and more
specifically first-class internal-communications electricians,
there is no evidence (other than bare, vague testimony) that
anyone else was reassigned from other ships to the mine hunter
at the same time that Jasmine was reassigned. Terry testified
that he could recall the names of no other employees who were
similarly reassigned to the mine hunter; Mancuso testified that
he had a “general sense” that there were others, but he also
could recall no names. Respondent’s case was as well prepared
as it could have been; it is certain that if Respondent could have
shown that someone else was similarly reassigned, it would
have done so.463
Terry testified that Simpson told him that the needs of the
mine hunter were paramount to the needs of all other ships in
the yard because the mine hunter was behind schedule and that
failure of the mine hunter program could bring financial ruin to
the Company. Terry further testified that, because of what
Simpson had told him, he called a meeting of his general fore-
men and told them that he needed “a” first-class internal-
communications electrician to be reassigned to the mine hunter;
he further testified that he told Gerdes to make sure that “a”
first-class internal-communications electrician was reassigned
to the mine hunter. Gerdes, however, testified that Terry asked
him to produce five “groups” of electricians, not specifically an
internal-communications electrician. Indeed, Gerdes testified
that Terry told him and the other general foremen at the meet-
ing that “he wanted a cross-sector of the five groups, first-,
second-, third-, and fourth-class of lighting, power, IC, elec-
tronics, cable-puller, and electricallayout personnel.” Gerdes
further testified that he went and told his subordinate supervi-
sors to suggest employees from “the five groups that we just
expounded upon.” Also, rather than telling his general foremen
that the needs of the mine hunter program were paramount, and
that they should send their best employees to the mine hunter
program, Gerdes testified that he told his general foremen to
send whatever employees that they could, “without impacting
the job—my job.” (Gerdes’ “job,” of course, was the LSD pro-
gram.) The testimony of Gerdes and Terry is too conflicting for

463 For example, Respondent could have, but did not, produce the
MCRs that would have shown when the other first-class electricians
arrived on the mine hunter. I draw an adverse inference for its failure to
do so.
logical resolution,464 and no other general foreman who was
supposedly at the meeting testified. I find that both Gerdes and
Terry testified falsely on this point; I find that the meeting of
the general foremen did not occur.
As well as squarely conflicting with Terry about what he told
his general foremen to do, Gerdes’ testimony is revealing on
another point; to wit: cable-pullers were in a category, if not a
classification, separate and apart from journeymen electricians
such as internal-communications electricians, power electri-
cians, layout electricians and lighting electricians. Jasmine,
himself, had been assigned to periods of cable-pulling before
his internal communications work on LSD-50. Nevertheless, the
clear preponderance of the evidence is that, although all electri-
cians pulled some cable at some times, the work of pulling
cable day-after-day-after-day was usually assigned to lower-
skilled employees, such as all members of the crew of discrimi-
natee Vernon Charles, as discussed above.465 As Lester so
graphically testified, when he needs additional labor: “If I am
hooking up, I would say, ‘I need more hook-up people.’ If I am
pulling cable, I just say,’ I need more bodies.’” That is, as the
General Counsel’s witnesses testified, cable-pulling was not
usually assigned to employees of the skill level of Jasmine.
(Lester’s quoted testimony, alone, is a testament to the skill and
quality of Jasmine’s work.) As St. Blanc and other electricians
testified, most of the cable-pulling that they did was in the un-
usual cases of a few cables that may have been omitted by the
usual cable-pulling crews. Even if the cable-pulling aboard the
mine hunter required some number of first-class electricians,
internal-communications electricians or otherwise, there is no
evidence of any increase in that need around December 20, and,
again, Respondent has not shown that any other employees
were reassigned to the mine hunter to meet such a suddenly
increased need.
Terry did not testify that, in addition to his meeting with
Gerdes and the other general foremen in the LSD program, he
also spoke to Mancuso individually. Mancuso, however, was
very clear that he was contacted individually by Terry and told
to send a first-class internal-communications electrician to the
mine hunter. At the time, Mancuso had 16 line foremen under
him on the LSD-50. Terry did not simply forget about such an
important individual. Even if he could have otherwise forgotten
about Mancuso, or what he said individually to Mancuso, Terry
certainly knew by time of trial that Jasmine had come from
Mancuso’s ranks of electricians, and it would have been impos-
sible for Terry to have forgotten about such an exchange with
Mancuso if it, in fact, occurred.
I am not required to resolve the conflicts between Terry,
Gerdes and Mancuso about what employees (or, more pre-
cisely, employee) that Terry wanted to be reassigned to the
mine hunter. I find that all three men were testifying untruth-
fully about the matter. As the General Counsel points out on
brief, Mancuso testified well after Terry and Gerdes, and
Gerdes had utterly failed to corroborate Terry. Mancuso’s tes-
timony about his order from Terry, I find, was an orchestrated
attempt to substitute a plausible, but false, scenario for the se-
lection of Jasmine after Terry’s testimony was shown to be

464 Certainly, Respondent on brief suggests no way to resolve the
conflicts between Terry and Gerdes.
465 Also, Jasmine had done highly skilled internal-com-munications
work for 8 months after his last period of cable-pulling; there is no
evidence that any other employee who demonstrated such skills was
ordered to pull cable day-after-day, except St. Blanc.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1394
false by the testimony of Gerdes. Lester’s testimony about his
part in the process, I find, was but another piece of false testi-
mony in the substitute scenario of how Jasmine was singled out
for reassignment.
I believe that, although Lester did not tell Jasmine that
Mancuso wanted Jasmine out of DC Central, Lester did tell
Jasmine that he was going to the mine hunter to pull cable,
which is exactly what happened. Even if I am incorrect about
what Lester told Jasmine, however, Respondent has not met its
Wright Line burden by presenting the absolutely irreconcilable
testimonies of Terry, Gerdes, and Mancuso in defense of the
prima facie case that the General Counsel presented for Jas-
mine’s reassignment to cable-pulling on the mine hunter.
Moreover, Respondent has not shown that any other employees
were reassigned to the mine hunter at the time that Jasmine
was. Again, to meet its Wright Line burden, Respondent could
have, but did not, produce records that would have shown when
other first-class electricians on Thibodeaux’s crew arrived
there. For all this record shows, they had been on Thibodeaux’s
crew for months.
I also do not believe Thibodeaux’s testimony that he, as a
line foreman, coincidentally requested that a first-class internal-
communications electrician be assigned to his crew for cable-
pulling. This testimony was not corroborated by the general
foreman to whom he made the request, Bourque, and it appears
to be nothing more than more late-surfacing testimony designed
to cover the inconsistencies between Terry, Gerdes, and
Mancuso (each of whom testified that the impetus for the trans-
fer came from above, not from a foreman’s level). Finally, even
if Thibodeaux’s testimony were true, the failure of corrobora-
tion would require the conclusion that his request played no
part in the reassignment of Jasmine on December 20.
Respondent has therefore not shown that it would have reas-
signed Jasmine to more onerous duties on December 20 even in
the absence of his known protected activities. I conclude that by
doing so it violated Section 8(a)(3).
(2) Jasmine’s order to pick up refuse that he was creating
Jasmine testified that, on June 2, 1994, he was assigned to
install an internal communications panel on the mine hunter. As
he stripped the cable ends of their sheathing materials, refuse
accumulated on the deck. Electricians, Jasmine testified, usu-
ally do all the end-stripping and then cleanup the refuse. Jas-
mine testified that on June 2, however, Terry approached him
and told him to place the sheathing materials into a bag as he
stripped the end of each cable. This had the effect of slowing
Jasmine down in that day’s work, but he was not otherwise
penalized by Terry’s instruction.
Terry testified, however, that the panel upon which Jasmine
was working was in an extremely narrow passageway; more-
over, there was a hatchway (opening in the deck) that was quite
near, and anyone who slipped on the material possibly could
have fallen into the hatchway.
The General Counsel offered no rebuttal of Terry’s testi-
mony in this regard, and I found Terry credible on this point. I
find that Respondent has demonstrated that it would have or-
dered Jasmine to pick up the sheathing material as he stripped
each cable end even in the absence of his known protected ac-
tivities. I shall therefore recommend dismissal of this allegation
of the complaint.
e. Harold Dennis’ reassignment from a truck-driving job
to a welding job
On June 29, 1993, Harold Dennis (vol. 32) was reassigned
from the job of driving a garbage truck to the job of welding
scaffolds aboard ships. The second complaint, at paragraph 95,
alleges that the reassignment was to a more onerous position of
employment, and Respondent admits that fact.466 The complaint
further alleges that the assignment violated Section 8(a)(3), and
Respondent denies that allegation. The General Counsel con-
tends that Respondent made the assignment because Dennis
had placed a prounion sticker on his lunchbox and because,
before the June 25 Board election, Dennis refused the requests
of two supervisors to wear a “Vote-No” sticker on his hardhat.
The complaint further alleges that the supervisors’ requests
constituted an interrogation in violation of Section 8(a)(1).
Respondent contends that the requests did not occur. Respon-
dent answers that, if Dennis had any prounion sympathies, its
supervisors did not know of the fact, and it answers that the
reassignment was made because of business necessities.467
Ultimately, I find and conclude that the General Counsel did
not prove a prima facie case that Dennis was unlawfully reas-
signed.
Dennis was hired in 1988 as a tacker-welder in the shipfit-
ting department. In 1989, Dennis was transferred to the CDC
(cleanup during construction) operation468 where he worked as
a garbage truckdriver until the events of this case. Dennis testi-
fied that he placed a prounion sticker on his lunchbox during
the organizational campaign, but he kept the lunchbox in his
truck, or other places away from casual observation, and there
is no credible evidence that the sticker could have been seen by
any supervisor before June 29.
As a garbage truckdriver, Dennis drove one of two garbage
trucks that Respondent operated. The other garbage truck was
operated by employee LeRoy Daphne. As garbage truckdrivers,
Dennis and Daphne drove the trucks around the yard collecting
steel, sand, and trash, and they took such to a dump.
Dennis testified that during the week before the Board elec-
tion, he started his days by coming to an office on wet dock-3
that was used by CDC General Foreman Donny Harris and
Foreman Adrian (Champ) Champagne to enter his time on the
MCR. Dennis testified that on June 23, he went to the office
before 7 a.m., as usual. When he got there, Daphne, Cham-
pagne, and Harris were already in the room. Dennis noticed
some “Vote-No” stickers that were in the room. According to
Dennis, “Champ and Donny Harris say, ‘You all take these
“Vote-No” stickers and put them on your hardhat.”‘ Based on
this testimony by Dennis, paragraph 50 of the second com-
plaint, as amended at trial, alleges that Respondent, by Harris
and Champagne, “interrogated employees about their union

466 As well, Dennis credibly testified to facts that require the conclu-
sion that his welding work was more onerous than his truck-driving
work.
467 Respondent further contends that no charge was filed that sup-
ports the 8(a)(3) allegation. Respondent acknowledges that the charge
in Case 15–CA–12234–1, filed on July 26, alleges that Respondent
violated Section 8(a)(3) “by change of conditions of employment” of
Dennis. On brief, Respondent contends that: “An onerous reassignment
is not closely related to a change of condition[s] of employment as a
matter of law.” For this “matter of law,” Respondent cites no authority.
The complaint allegation is obviously supported by the charge.
468 At the time, CDC was a division of the paint department.
AVONDALE INDUSTRIES

1395
membership, activities and sympathies.”469 Dennis further testi-
fied that Daphne took one of the stickers and placed it on his
hardhat. Dennis took a sticker, but, when he got outside the
office door, he threw it away. Dennis testified that Daphne
wore the “Vote-No” sticker on his hardhat through the election
day.
Dennis testified that when he arrived at work on June 29, he
was called to the office of Leroy Cortez, the superintendent of
CDC. Dennis testified that Cortez said that superintendents of
other departments were complaining that Dennis had been
stopping other employees to talk when they, and Dennis, should
have been working. Cortez further told Dennis that, because of
those complaints, he was going to transfer Dennis to the super-
vision of Foreman Tommy Richard to build scaffolds. Dennis
immediately reported to Richard and began building scaffolds.
(Again, Respondent does not deny that scaffold-building was
more onerous than truck driving.) Dennis continued to build
scaffolds under Richard until January 1994 when Cortez trans-
ferred Dennis to another truck-driving job. Dennis testified that
he is satisfied with his second truck-driving job; the General
Counsel does not ask that Dennis be reinstated to driving the
garbage truck.
Dennis testified that when he was assigned to the garbage
truck, he talked to other employees no more than was necessary
to get the job done. He further testified that during the first
week that he was transferred to scaffolding, Timmy Gaudet
drove the truck that he had been driving; previous to that week
Gaudet had worked in scaffolding. Gaudet had no experience as
a garbage truckdriver, and Daphne trained Gaudet on Monday,
June 28, the first day after the Board election. Dennis testified
that after that first week, employee Vic Cortez, who had previ-
ously substituted for Daphne and Dennis when either of them
was absent, began driving the garbage truck that Dennis had
previously driven. Dennis further testified that Vic Cortez, as
well as Daphne and Gaudet, wore “Vote-No” stickers on their
hardhats before the election.
As noted, the allegation that employees were interrogated by
being offered “Vote-No” stickers was amended at trial. The
original complaint had alleged that it was Cortez who had of-
fered the “Vote-No” stickers to employees. The original allega-
tion was based on a March 7, 1994 affidavit in which Dennis
testified that it was Cortez who offered him the sticker on June
23, and that Cortez had done so in Cortez’ office. Dennis was
asked on cross-examination, and he testified:

Q. [By Ms. Canny]: As of March 7, 1994, wasn’t it
your recollection that Mr. Cortez is the one who said
something to you on approximately June 23, 1993, about
stickers?
A. No.

That is, although he had remembered that it was not Cortez
who offered him the “Vote-No” stickers, he testified in his
March 7, 1994 affidavit that it was. When given an opportunity
to explain the inconsistency on redirect examination, Dennis
testified that in his affidavit he named Cortez, not Harris and
Champagne because, “Well, I look at about Leroy Cortez being
the superintendent; that he calls all the shots. That is why I said

469 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against Dennis, as well as the
charge in Case 15–CA–12171–1.
Leroy Cortez.” Dennis was not asked on redirect examination
why he had stated that the interrogation occurred in Cortez’
office, rather than the office of Harris and Champagne.
I simply do not believe Dennis’ trial testimony that he named
Cortez as his interrogator in his affidavit, even though he was
actually interrogated by Harris and Champagne, because Cortez
was the organizational superior of Harris and Champagne.
Moreover, the General Counsel offers no explanation for Den-
nis’ testifying in the affidavit that the interrogation occurred in
Cortez’ office and Dennis’ testifying at trial that the interroga-
tion occurred in the office of Harris and Champagne. Harris
(vol. 110) denied that the interrogation occurred, and, on the
basis of this record, I cannot find that it did. I shall therefore
recommend dismissal of this 8(a)(1) allegation of the com-
plaint. Moreover, Harris testified that Dennis did, in fact, wear
a “Vote-No” sticker on his hardhat for a while. Dennis was not
called in rebuttal to deny this testimony, and I credit it.470 I
therefore find that the General Counsel has not presented a
prima facie case that Dennis was unlawfully discriminated
against in violation of Section 8(a)(3), and I shall also recom-
mend dismissal of that allegation of the complaint.
f. Lorraine Moses’ assignment to the building area
On June 2, 1993, Lorraine Moses (vol. 35), a laborer, was
reassigned from a job of cleaning compartments on a launched
ship (a ship that was in the water) to cleaning units that were on
platens in the building area of the yard. The second complaint,
at paragraph 83, alleges that Moses’ reassignment was to a
more onerous job and that by making the reassignment Re-
spondent violated Section 8(a)(3). The General Counsel con-
tends that Respondent reassigned Moses because of her known
union activities and expressions of sympathy which included
her speaking favorably about the Union at an employer cam-
paign meeting. The General Counsel further alleges that, in
violation of Section 8(a)(1), Moses was threatened with dis-
charge because of her prounion sympathies and that Moses
was, on a separate occasion, instructed not to talk with union
representatives. Respondent denies that the threat and the in-
struction occurred. Respondent further answers that its supervi-
sors had no knowledge of any prounion sympathies that Moses
may have had at any relevant time and that Moses’ transfer was
caused solely by business necessity. Finally, Respondent an-
swers that Moses’ work in the building area was no more oner-
ous than the work that she had done before.471 Ultimately, I find
and conclude that Moses was reassigned to more onerous work
in violation of Section 8(a)(3).
From 1988 through the time that she testified, Moses was
employed by Respondent in the cleanup-during-construction
department (CDC). As that name implies, a principal function

470 I also credit Cortez’ testimony about the complaints that he re-
ceived from other supervisors about Dennis’ wasting time, and that
those complaints, and lack of need, were the reasons that he transferred
Dennis. I further credit Cortez that, after Dennis was sent to build scaf-
folds, it was only sporadically that CDC needed the operation of two
garbage trucks, and Cortez could more economically fill CDC’s occa-
sional need with other CDC employees rather than transferring Dennis
back from building scaffolds.
471 Respondent further contends that no charge was filed that sup-
ports the 8(a)(3) allegation for Moses. Respondent acknowledges,
however, that the charge in Case 15–CA–12234–5, filed on July 26,
alleges that Respondent violated Sec. 8(a)(3) “by change of conditions
of employment” of Moses. The complaint allegation is therefore sup-
ported by the charge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1396
of CDC is to do cleanup work at various stages of construc-
tion.472 Picking up trash, sweeping, dusting, wall-washing and
mopping are principal functions of the CDC employees, and
that is the type of work that Moses did during her tenure with
Respondent.473 At wet docks-3 and -4, ships undergo the final
steps of construction before and after launchings. As final in-
stallations of equipment are made, and rework is done, com-
partments of ships at wet docks-3 and -4 are continually
cleaned. This final, or finish, cleaning continues until the times
of final inspections and acceptances by the Navy. Moses testi-
fied, without contradiction, that, until the events of this case,
she had always done cleaning of compartments of ships that
were at wet docks-3 and -4.
Moses testified that when she was working on ships on wet
dock-3, she performed finish cleaning after “call-outs” and
Navy inspections. On “call-outs,” Moses typically accompanied
inspectors from Respondent’s quality assurance (QA) depart-
ment. Inspectors came to the area when QA had been notified
that certain rooms were finished according to Avondale’s stan-
dards. If deficiencies were found by the QA inspectors, then
Moses would perform whatever cleaning was necessary. Once
QA passed on a compartment, the Navy inspectors were noti-
fied. Moses performed a similar role during those inspections (a
process that was called “selling it to the Navy”). On the ships at
wet dock-3 and -4, Moses usually worked in the “house” por-
tion of the ship. This portion was mostly composed of com-
partments on the second deck up through the 06-level. Moses
also performed some cleaning on lower levels, in areas such as
the restrooms or control rooms in the vicinity of the engine
room. Usually, Moses would not perform work in the bilges or
the tanks. That work, and cleaning work in other portions of the
engine room, was typically performed by male CDC employ-
ees. Moses further testified that the physical work environment
at wet dock-3 was usually pleasant because there was a greater
control of temperature; there were either blowers or fans on wet
dock-3 ships, and house portions of those ships were air-
conditioned after a certain point in construction.
It is necessary to establish a chronology of Moses’ assign-
ments through both the testimony and the documentary exhibits
in evidence: The T-AG (the TAG) is a reconnaissance ship that
had been at wet dock-3 (first on land and then in the water)
since May 1991 (according to Respondent’s “Master Yard
Schedule”). Moses testified that she worked under Foreman Joe
Cardella on the TAG from the time that it reached wet dock-3
until the time that the TAG was launched, finished and deliv-
ered to the Navy. Respondent introduced records that the TAG
was delivered to the Navy on May 26. Moses testified that,
after working on the TAG, she worked for 2 weeks on LSD-49
which was also at wet dock-3. Respondent introduced docu-
ments reflecting that Moses worked on LSD-49 at wet dock-3
on Monday, May 31 and Tuesday, June 1. The exhibit (R. Exh.
720), starts on May 31, and there is no relevant documentation
for Thursday, May 27, or Friday, May 28, and Moses could
possibly have worked on LSD-49 on those dates also. I shall
assume that she did because it is undisputed that Moses went
directly from the TAG to the LSD-49, and there is no reason to

472 CDC also has a “Construction Services” function which includes
such activities as scaffold building and garbage-truck driving. Alleged
discriminatee Harold Dennis, whose case is discussed infra, is a con-
struction services employee.
473 Moses is no longer an employee of Respondent because she did
not report to work for a year after an injury.
believe that Moses was absent on May 27 or 28. Moses testified
that her work on LSD-49 ended when she was reassigned to
work in that part of the building area which is known as “Wet
dock-2” (which, even though it is called a “dock” is actually a
unit-building area). Respondent introduced MCRs of Foreman
Billy Ledet that reflect that Moses began working in the build-
ing area beginning on June 2. Therefore, although Moses testi-
fied that her reassignment to the building area occurred in
April, and the complaint alleges that the reassignment occurred
in May, I find that Moses’ reassignment from LSD-49 at wet
dock-3 to the building area at wet dock-2 occurred on June 2. In
summary, Moses worked on the TAG at wet dock-3 for several
months ending on May 26. On May 27, 28, and 31 and June 1,
Moses worked on the LSD-49 at wet dock-3. On June 2, Moses
was reassigned from the LSD-49 at wet dock-3 to the building
area at wet dock-2. (Again, it is by this June 2 reassignment
that Respondent is alleged to have violated Section 8(a)(3).)
To continue her overall chronology: Moses continued work-
ing at wet dock-2 until July 28, at which time she was injured
on the job. She returned to work, still at wet dock-2, on October
25. On October 26, Moses was absent. October 27 was Moses’
last day to work for Respondent, as she then went on indefinite
medical leave thereafter. Moses was terminated in 1994 after
she had not returned to work for 12 months. (The lawfulness of
Moses’ termination, which occurred after Moses testified, is not
in issue herein.)
Moses testified that in April, while she was still on the TAG,
Foreman Joe Cardella conducted an employer campaign meet-
ing. Moses testified that at one point in the meeting she spoke
up and:

I asked why do we need 32 vice presidents—why do employ-
ees need 32 vice presidents when we can’t get no kind of
raise. . . . And I told them that, “When we vote for a president,
we give him a chance; why not give the Union a chance?”

Moses testified that Cardella did not respond to her. Moses
testified that alleged discriminatee Josephine Hartman and em-
ployee Noreen Turner also spoke up. Moses testified that
Hartman complained about her wages being cut, but she did not
testify that Hartman said anything about the Union when Hart-
man did so.474 Turner did not testify, and Hartman did not cor-
roborate this testimony by Moses. Nevertheless, although
Cardella (vol. 150) generally denied that Moses ever made any
statements about the Union to him, Cardella did not deny this
specific testimony by Moses. I credit Moses.475
Moses testified that on June 1, when she was working on
LSD-49, General Foreman Harris ordered her to go to the office
of CDC Superintendent Leroy Cortez. According to Moses:

He [Cortez] said that his boss had jumped on him say-
ing that two ladies was accused of making a statement in
front of [Electrical department Superintendent] Bob Terry.
. . . He said the two ladies had said, “Let’s go up the stairs
before . . . a foreman jumped on our ass.” . . . He was say-
ing we said it, myself and Cathy Henry. . . .

474 Moses’ testimony that Hartman complained without reference to
the Union is consistent with testimony by Superintendent Cortez that I
credit in Hartman’s case, infra.
475 Respondent argues on brief that Moses cannot be credited be-
cause her testimony was not corroborated by current employee Cathy
Henry. Moses, however, did not place Henry at the meeting.
AVONDALE INDUSTRIES

1397
He said I would have to be moved to wet dock-2 be-
cause of this.

Moses denied that she made any such statement that could have
been heard by Terry, and, in that regard, Moses was corrobo-
rated by Henry (vols. 60, 61) who was also called by the Gen-
eral Counsel. Further according to Moses, when Cortez finished
talking to her about the reassignment to wet dock-2:

He said while I was there, he wanted to talk to me
about the Union. . . . He asked me what do I think about
Avondale insurance.
I told him I think it was too high; $16 a week was too
high for one person, and I had to take my son off of there
and get a cheaper insurance. . . .
And he wrote something down, but I couldn’t tell what
it was, and then I went back to work.

The questioning by Cortez is not alleged as a violation of the
Act. The General Counsel argues that Cortez’ reference to
Terry was a pretext for the reassignment of Moses to the build-
ing area, and the General Counsel further argues that the ex-
change demonstrates Cortez’ knowledge of Moses’ prounion
sympathies.
On the following day, June 2, Moses was reassigned to work
under Foreman Billy Ledet at wet dock-2. Ledet’s crew was
working on a TAO that was being fitted with a second hull
(pursuant to then-new Federal regulations that require double
hulls on some ships). Moses testified that her work there was
harder and under more difficult conditions, although it was
work that other employees (including other women) were doing
at the same time. Moses described her work at wet dock-2
thusly:

It was hot. There was no lighting. It was full of water
and mud and trash. . . .
I had to pick up different irons and mud and trash and
water and go in some holes and—where they don’t have
no heat or no air, no nothing; is just nothing but heat. I
crawled in. And sometimes, you have to lay on your stom-
ach to crawl in some of the holes, and climb over a lot of
things, a lot of angles, sort of, where you have to stand up
and go through one part of the hole and climb over the part
of the hole.
Some parts, you have to—you can’t stand up in it; you
have to go through it laying on your stomach, to get to one
little section, to go to the other section, or to leave out
where they have a hole in the wall and the floor. And, you
know, it is very unsafe. . . . [b]ecause you would have to
walk on the scaffold boards. And if they don’t have no
light in some of the areas, they have a hole on—in the
floor where you could easily fall down because it is not
covered up.

Moses further testified that, before she was assigned to wet
dock-2, she had never been required to work in unventilated
areas, or in mud or standing water, or in areas where she would
be required to crawl. Finally, Moses testified that she had never
before been required to work in areas that she considered un-
safe.
Moses testified that, while she was working on wet dock-2,
an employer campaign meeting was conducted in the office of
General Foreman Ruben Barrios. After the meeting, she asked
to speak to Cortez who had been present during the meeting.
According to Moses, she asked Cortez how much longer she
was going to be required to stay at wet dock-2, and Cortez re-
plied, “Not that long.” Moses was then asked, and she testified:

Q. And what, if anything, else did Mr. Cortez say?
A. He said that I am not supposed to be talking to no
one outside the gate dealing with the Union, neither get-
ting any kind of union papers. . . . Then I went to work.

Based on this testimony by Moses, paragraph 24 of the second
complaint alleges that Respondent, by Cortez, “told its employ-
ees that they could not talk to any of the union organizers
handbilling at the Respondent’s gates or take any handbills
from them.”476 (The complaint further alleges that this incident
occurred in May. Moses did not advance a date in her testi-
mony, but she did testify that it happened after her reassign-
ment to wet dock-2, but before another employer campaign
meeting that occurred in May. Implicitly, therefore, Moses was
testifying that her encounter occurred in May. Also, on cross-
examination, Moses acknowledged that her pretrial affidavit
states that this incident occurred in May. As noted above, how-
ever, it has been established that her reassignment to wet dock-
2, where the incident allegedly happened, occurred on June 2,
and, if it happened at all, it happened in June.)
As mentioned, from July 28 until Monday, October 25,
Moses was absent from work because of a job-related injury.
When she returned to work on October 25, she was sent back to
wet dock-2 under Supervisor A. J. Rodrigue. She was assigned
to cleaning tanks at the bottom of a unit. Moses testified that
she asked Rodrigue why she had been sent to work on wet
dock-2 and:

[Rodrigue] said he don’t know why they are pulling
me back there; they just—he had just had to, you know,
put me back to work. He said he didn’t know why they
were treating me like that, either. . . . [Rodrigue also said
that] I better be careful because it looks like they are trying
to fire me.

Moses testified that she was absent on October 26, but she re-
turned to work on Wednesday, October 27. Moses testified that
on October 27, she was spoken to rudely by General Foreman
Donald Harris. Afterwards, she went to Rodrigue in his office.
Moses was asked and she testified:

Q. And what, if any, discussions did you have with A.
J. [Rodrigue]?
A. I asked him why did Harris talk to me like that.
Q. And what, if any, response did A. J. make?
A. He said I had better [?] because it looked like Harris
was trying to fire me.477
Q. And what else, if anything, did A. J. say?
A. He was telling me about I had to be careful; it
looked like he was trying to fire me. . . . That I had to—
Harris wanted me in the tanks because that was—the hard-
est part of the job is going in the tanks.

476 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against Moses, as well as the
charge in Case 15–CA–12171–1.
477 I insert the question mark into the quotation to indicate that the
witness never indicated what Rodrigue was telling her that she “had
better” do.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1398
Based on this testimony by Moses, paragraph 77 of the second
complaint alleges that Respondent, by Rodrigue, “threatened its
employees with discharge by telling them that Respondent was
going to fire an employee because of the employee’s union
activities.”478 Rodrigue did not testify. Respondent formally
denied that, at the time of this incident, Rodrigue was a super-
visor under Section 2(11) of the Act. Moses testified that on
October 25 and 27 she signed the MCR of Rodrigue, and, dur-
ing that time, Rodrigue wore a white hardhat, but this is not the
only evidence on the issue.
I find and conclude that Rodrigue was a statutory supervisor
through at least October 27 for the following reasons: (1) Al-
though Moses was shown to be confused about other dates of
her employment history, Respondent did not dispute that Moses
returned from her accident and worked on October 25 and 27.
Respondent also did not dispute Moses’ testimony that she was
presented Rodrigue’s MCR to sign on those dates. As the MCR
form indicates, only salaried supervisors maintain (and com-
plete) those forms. Respondent’s vice president of personnel,
Ernest Griffin, testified (vol. 28) that all salaried supervisors
have the authority, inter alia, to discipline employees by issuing
warning notices and even discharging employees. (2) Such
deduction, however, is not entirely necessary in the case of
Rodrigue, at least for his authority as of October 25 and 27. In
what is apparently a most remarkable coincidence, CDC Super-
intendent Cortez, on October 27, 1993, testified in the represen-
tation case, and Cortez’ testimony on that date involved the
issue of the supervisory status of Rodrigue. On day-31 of the
trial in this case (Oct. 11, 1994) the General Counsel called
Cortez as an adverse witness. During that examination, after
being shown a copy of the transcript of his October 27, 1993
testimony in the representation case, Cortez acknowledged that
he then testified that Rodrigue was, as of that date, a salaried
line foreman of the CDC department and that Rodrigue then
possessed the same supervisory authorities as all other salaried
foremen in CDC, including the authority effectively to disci-
pline employees. Although confirming the truth of that 1993
testimony, Cortez further testified on day-31 that, shortly after
October 27, 1993, Rodrigue was demoted to a nonsupervisory
employee. Cortez was vague about when Rodrigue’s demotion
occurred. At one point he testified that it was “at least two
weeks” after October 27; at another point, Cortez testified that
Rodrigue was demoted, “[j]ust a day or two,” after October 27.
At any rate, Cortez testified, both in the representation case and
in this case, that Rodrigue was a line foreman of the CDC de-
partment through October 27, 1993, and that, as such, Rodrigue
possessed the authority to discipline employees. I therefore find
and conclude that, at least through October 27, Rodrigue was a
supervisor within Section 2(11) of the Act.
Moses’ Assignment to the Building area—
Respondent’s Evidence
Cardella testified that he started working a crew on the TAG
at wet dock-3 about 6 months before it was launched on June 6,
1992; therefore, Cardella would have started on the TAG in late
1991. Cardella testified that Moses began working on the TAG
at wet dock-3 when he did because she came with him to the
TAG after LSD-48 was finished at wet dock-3. Cardella could
name only two other employees who had stayed on his crew
through the different ships, as did Moses. Cardella confirmed

478 See fn. 476.
that his crew did cleanup work before Navy inspections and
call-outs, but he testified that the members of his crews cleaned
engine rooms as well as compartments. Cardella denied that
there was a division of labor between the men and the women
under his supervision.
Cardella testified that he was reassigned to the building area
at wet dock-2 on May 27, the day after the TAG was delivered.
At wet dock-2, there were two types of construction going on,
the completion of the second hull for a TAO and completion of
the units that made up LSD-51’s “house” (again, the superstruc-
ture, where living and control compartments are located).
Cardella testified that his crew worked on LSD-51.
On cross-examination Cardella testified that he did not know
who made the decision where to send Moses after she worked
on the TAG. Cardella testified that his general foreman just told
him where to send the employees that he was not taking with
him to the units of LSD-51 at wet dock-2. Further on cross-
examination Cardella could name only two other employees
who usually were assigned to clean compartments in the upper
areas of the ships (and one of those was alleged discriminatee
Josephine Hartman).
Ledet (vol. 150) testified that he could not remember what
work his crew was doing on June 2 when Moses arrived from
wet dock-3; specifically, he testified that he could not remem-
ber what work Moses did under him, other than to say that she
was “cleaning up.” Therefore, Moses’ testimony that she
cleaned the hull or bilges of the TAO, and other dirty, muddy
areas, stands undenied.
Harris (vol. 110) testified that he made the decision to move
Moses away from wet dock-3, but he denied that he knew about
any prounion sympathies that Moses may have had. Harris
confirmed that in 1993, Moses was one of the employees who
usually did room cleaning on “lead” ships, or ships that were
being readied for sea trials. (Harris referred to such employees
as “my finishing people.”) Harris also confirmed that Moses
was one of the employees who went with Navy personnel when
final inspections were being done. The other employees who
went on final inspections were Leadperson Craft and alleged
discriminatee Hartman. Harris further testified that he kept his
“better workers” on the LSD-49, and Moses was not one of
them. When asked to name who his better workers were, Harris
named only Leadperson Willa Mae Craft, employee Cathy
Henry, and one “David.” Harris was not asked on direct exami-
nation why he did not consider Moses one of his better work-
ers.
Harris was asked and he testified:

Q. And after the TAG was delivered, do you know
what happened to Lorraine Moses?
A. She went to the -49.
Q. At some point, was she moved from the -49?
A. She was moved from the -49 to the -51.
Q. Why was she moved from the -49 to the -51?
A. Because I needed some more people over there.

On cross-examination, after an extensive exercise in eva-
siveness, Harris admitted that “[m]ost of the time,” Moses
worked in the “house” portion of ships. Harris was further
asked and he testified:

Q. Would you agree with me, sir, that it would be the
practice for the foremen working under your direction in
CDC to typically try to send their more responsible or bet-
ter employees with the Navy inspectors?
AVONDALE INDUSTRIES

1399
A. Not really.

Further on cross-examination Harris described Moses as only a
“fair” employee. When asked why he did so, Harris replied:
“She griped about her job. She didn’t like the working area
when she [got] dirty. She was kind of slow on her inspections
and all.” Harris admitted, however, that he could not say how
often it was that Moses griped about her job; in fact, he could
not say if any “griping” by Moses that he had personally wit-
nessed occurred in the 1990s. Harris further professed memory
of only one occasion when a compartment that was assigned to
Moses was not ready when an inspection was scheduled; how-
ever, Harris could only guess that that one occasion occurred in
the 1990s. Harris testified that either Cardella or Emilio Gon-
zalez was the foreman on that occasion; Gonzalez did not tes-
tify, and Cardella mentioned no such occasion in his testimony.
Cortez (vols. 96, 97) was asked on direct examination and he
testified:

Q. Did you ever make a decision in May or June of
1993 to move Ms. Moses in particular from one work lo-
cation or assignment to another?
A. No, I did not.
Q. In May or June or July of 1993, did you ever have a
conversation with Ms. Moses concerning her move from
one work location to another?
A. Not to my knowledge, no.
Q. Did you ever promise Ms. Moses anything about
being able to work in the finishing area?
A. No.
Q. Did you ever tell Ms. Moses she would be able to
work in the finishing area again?
A. No.

Cortez was asked nothing else about exchanges he may have
had with Moses.
On cross-examination Cortez was asked and he testified:

Q. Now, how about Lorraine Moses? Before she was
injured, what kind of employee was she?
A. A pretty good employee.
Q. And was she one of these—did she gripe some-
times?
A. Not that I—I don’t think so.
Moses’ Assignment to the Building Area—Conclusions
Moses testified that for years before her June 2 assignment to
wet dock-2 she only cleaned compartments. Although Respon-
dent showed that Moses did some work on wet dock-2 before
the events of this case, it made no attempt to show, and it did
not show, that she previously did other than room-cleaning type
work. Certainly, Respondent did not show that Moses was re-
quired to do the heavy bilge-cleaning-type work that she was
sent to do on June 2. It is further undeniable that such work is
more onerous than room-cleaning work. I credit Moses’ testi-
mony in this regard, and I find that the work to which Moses
was assigned on June 2, and thereafter, was more onerous than
that which she had done before. (Specifically, I credit Moses’
testimony that engine-room cleaning, and other such work, had
been assigned principally to male employees when she was
working under Cardella.)
In his brief direct examination about Moses, Cortez did not
deny that he knew that Moses bore prounion sympathies and he
did not deny that he told Moses not to talk to union representa-
tives at Respondent’s gates and not to take handbills from them.
I find that he did, and I conclude that, in violation of Section
8(a)(1), Respondent, by Cortez, in June 1993, ordered an em-
ployee not to take literature from union representatives and not
to talk to them at Respondent’s gates.
It is further undenied that Foreman, and Statutory Supervisor
A. J. Rodrigue told Moses on October 27 that he thought Harris
was trying to discharge her. No mention of the Union was made
during this exchange, however, and the General Counsel makes
no argument that a reasonable employee necessarily would
have concluded that Rodrigue was telling Moses that Harris
was attempting to discharge her because of her protected activi-
ties. I shall therefore recommend dismissal of paragraph 77 of
the second complaint.
It is further undisputed that in an April employer campaign
meeting Moses spoke up to Cardella and rhetorically asked why
Respondent needed “32 vice presidents when we can’t get no
kind of raise.” Moses further told Cardella, “When we vote for
a president, we give him a chance; why not give the Union a
chance?” Respondent contends, however, that the General
Counsel has not presented a prima facie case that Moses’ June
2 reassignment was unlawfully motivated because Harris made
the decision to reassign Moses and Harris denied knowing of
any prounion sympathies that Moses may have held. I disagree.
The General Counsel has shown that Cardella knew before the
reassignment that Moses favored the Union. I do not believe
that Cardella would have withheld this information from his
superior, Harris, and, from Cardella’s knowledge alone I would
impute relevant knowledge to Harris. Moreover, Cortez, Harris’
superior, certainly knew after the reassignment that Moses fa-
vored the Union; otherwise, Cortez would not have taken the
trouble to instruct Moses, unlawfully, not to talk to union repre-
sentatives or take their literature. Therefore, the supervisors
immediately above and below Harris knew of Moses’ prounion
sympathies before and after the assignment, and I find that
Harris did also. Respondent’s animus toward employees who
held prounion sympathies is established throughout this deci-
sion. Accordingly, the General Counsel has presented a prima
facie case, and Respondent’s defense for Moses’ June 2 reas-
signment must be examined.
Harris testified that he assigned Moses to the building area
because he needed more labor for LSD-51. However, it is un-
disputed that Moses was not assigned to LSD-51; instead she
was assigned to clean bilges and tanks of the TAO. Ledet, her
supervisor at wet dock-2, testified that he could not remember
what Moses did at wet dock-2; in fact, he could not remember
what his entire crew was doing at the time in issue. This testi-
mony was simply incredible. At any rate, Moses’ testimony
about what she did stands undenied. Moreover, Moses’ testi-
mony is supported by Cardella’s testimony that there were the
units of only two ships at wet dock-2 when Moses was sent
there, LSD-51 (where there was compartment-cleaning to be
done) and the TAO; Moses, again, was not on the LSD-51.
Harris further testified that he did not continue Moses’ work-
ing on the LSD-49 at wet dock-3 because she was not one of his
“best,” or even “better” employees because she griped and she
was sometimes slow. Harris could only be vague when asked
why he said these things. Moreover, Cardella, who had been
Moses’ direct supervisor for at least 2 years, offered no such
testimony. Indeed, Cardella testified that Moses had followed
him, over a 2-year period, from the LSD-48 to the TAG. If
Moses’ work had been deficient in any meaningful way,
Cardella presumably would not have retained her on his crews
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1400
(and he would not have given her the additional responsibilities
of going with Navy personnel on final inspections). Finally,
Cortez acknowledged that Moses was “[a] pretty good em-
ployee,” and he denied that she ever griped. Harris’ testimony
about not continuing Moses with LSD-49, or not continuing her
with Cardella’s crews that were doing more compartment-
cleaning on the house units of the LSD-51, was simply not
credible.
Finally, Moses testified that Cortez is the supervisor who
told her that she would be reassigned to wet dock-2; she fur-
ther, specifically, testified that Cortez first accused her of mis-
conduct (that was witnessed by Electrical Department Superin-
tendent Terry) and stated that her misconduct was the reason
that she was being reassigned. After he told her of the reas-
signment, further according to Moses, Cortez told her that he
wanted to talk about the Union, and then asked her what she
thought of Respondent’s insurance program. When Cortez was
on direct examination, however, he was not asked to deny this
specific testimony by Moses; instead, he was only asked gener-
ally if he discussed a reassignment with Moses. Cortez an-
swered, “Not to my knowledge, no.” Respondent’s failure to
seek specific denials is telling; the diffidence reflected in Cor-
tez’ answer is even more telling. I find that Moses testified
truthfully that Cortez told her that she was being reassigned to
wet dock-2 because of spurious charges of misconduct.
On June 2, there was plenty of finish work at wet dock-3. As
admitted by Harris, on June 2 there was another TAO at wet
dock-3, as well as LSD-49. (On Br., p.”CDC-CS-113,” Re-
spondent identifies that ship as TAO-202, and Respondent
states that it was at wet dock-4, where Moses also sometimes
worked.) The compartments of that TAO would have needed
finish cleaning, as well. Cortez did not tell Moses that she was
being reassigned because (as Harris testified) she was needed
more at wet dock-2 than on wet dock-3. Moses was produc-
tively working on LSD-49; she knew that there was more work
to do on LSD-49;479 and she presumably knew that there was
another TAO at wet dock-3 that would need much finish clean-
ing. Any assertion that she was needed more at wet dock-2 than
at wet dock-3, therefore, would have been effectively chal-
lenged as nonsense by Moses. For that reason, I find, Cortez
advanced as a pretext for the reassignment the lie that she had
been seen by Terry engaging in misconduct. It further appears
to this finder of fact that, when Cortez then told Moses that he
wanted to talk about the Union, and he asked Moses what she
thought about Respondent’s insurance program, Cortez was
offering a reprieve from the wet dock-2 assignment if Moses
would give the “right” answer. Moses, instead, criticized the
insurance program, and Cortez accordingly sent her away to the
more onerous work in the bilges and tanks of the TAO at wet
dock-2.480 The Board has noted that, in any large organization,
jobs of relatively unskilled employees can be shuffled among
other employees at any time.481 That is obviously what hap-
pened here with Moses, and it happened for an unlawful pur-
pose.

479 Moses gave credible testimony in this regard; moreover, accord-
ing to Respondent’s master yard schedule, the LSD-49 was not sched-
uled for delivery until August 1994.
480 As Rodrigue, it is undisputed, told Moses, “Harris wanted me in
the tanks because that was—the hardest part of the job is going in the
tanks.”
481 Flexsteel Industries, 316 NLRB 745, 757.
In summary, Cortez (not Harris) made the decision to send
Moses to more onerous work on June 2, and he did so because
of her expressed prounion sympathies of which Cortez knew.
That is, Respondent has not shown that it would have reas-
signed Moses to wet dock-2 when it did, even in the absence of
her known protected activities. I therefore find and conclude
that by assigning Moses to more onerous work on June 2, 1993,
Respondent violated Section 8(a)(3).
g. Josephine Hartman’s isolation and assignment
to the building area
Josephine Hartman (vol. 30) was a laborer who, until the
events of this case, usually cleaned rooms on launched ships at
wet dock-3. On June 28, 1993, when she was working on LSD-
49, Hartman was ordered to clean rooms alone rather than
jointly with another employee as she had done in the past. That
assignment lasted for 1 week. On July 13, Hartman was reas-
signed from the job of cleaning rooms on ships to the work of
cleaning units in the building area. The second complaint, at
paragraphs 93 and 99, respectively, alleges that Hartman’s
assignments were to an isolated job, and to a more onerous job,
in violation of Section 8(a)(3). The General Counsel contends
that Respondent made these assignments to Hartman because of
her known union activities and expressions of sympathy which
consisted of her speaking favorably about the organizational
attempt during two employer campaign meetings. The General
Counsel further alleges that, in violation of Section 8(a)(1),
Hartman was interrogated by one supervisor and she was told
by another supervisor that she was reassigned to isolated work
because of her union activities. Respondent denies that either
the interrogation or the isolation remark (as I shall call it) oc-
curred. Respondent further denies that the individual who al-
legedly made the isolation remark is a supervisor within Sec-
tion 2(11) of the Act. Respondent further denies that any of its
supervisors knew of any prounion sympathies that Hartman
may have held at any relevant time, and it answers that Hart-
man’s assignments were made solely because of business ne-
cessities.482 Ultimately, I find and conclude that the General
Counsel has not presented a prima facie case that Hartman was
unlawfully discriminated against.
Hartman has been employed by Respondent since 1973 in
the CDC department. She testified that she has always done
cleaning work such as trash pickup, dusting, sweeping, and
mopping. Hartman testified that she spoke up for the Union at
two employer campaign meetings that were conducted in the
CDC department about a week apart during the month preced-
ing the June 25 Board election. At the first meeting CDC Su-
perintendent Leroy Cortez addressed about 18 employees. Pre-
sent also were General Foreman Donald Harris, Foremen Tracy
Plaisance, and Emilio Gonzalez. According to Hartman:

He [Cortez] was just stating that the Union wouldn’t
be good for Avondale, that Avondale would be better
without the Union, that the contracts would be given to
nonunion shipyards before the Union one. And he was
speaking—at the time they had union—Bayou Steel was

482 Respondent further contends that no charge supports the 8(a)(3)
allegations for Hartman. Respondent acknowledges, however, that the
charge in Case 15–CA–12234–3, filed on July 26, alleges that Respon-
dent violated Sec. 8(a)(3) “by change of conditions of employment” of
Hartman. The complaint allegation is therefore supported by the
charge.
AVONDALE INDUSTRIES

1401
on strike, and National Canal-Villere [a local chain of gro-
cery stores] was on strike. And he was talking about the
Union wasn’t any good.
And then I asked him, why was he saying that the Un-
ion wasn’t any good, because the people of National Ca-
nal-Villere are only trying to keep their benefits, their cur-
rent rate of pay, and their benefits what they already had.
They weren’t asking for any more money.

Hartman testified that at the second June meeting:

Well, Leroy [Cortez] was speaking again about the
benefits of being nonunion, and, you know, he was just
talking about Avondale would get these contracts without
a union. And he told me that he knew I was for [the] Un-
ion. And I asked him, how did he know that. He said be-
cause I was wronged; I was cut, and they didn’t give me
my pay back.

(The background for this remark lies in certain testimony by
Hartman that during the first 2 weeks of 1987 she was laid off.
When she was called back, it was at a reduced hourly rate of
pay.) Hartman testified that after this meeting:

Well, when we were getting ready to leave and go
back to the ship, Leroy Cortez called me aside and asked
me, what did I think the ladies483 thought, and I told him I
did not know what the ladies thought, I could only speak
for myself.
And then he asked me, did I have confidence in man-
agement, and I told him no. And he asked me, “What
about the Union?” I told him I didn’t know, and if I knew
for sure, it would be easier for me to make my decision.

Based on this testimony by Hartman, paragraph 33 of the sec-
ond complaint alleges that, in violation of Section 8(a)(1), Re-
spondent, by Cortez, “interrogated its employees about their
union membership, activities and sympathies and the union
membership, activities and sympathies of their fellow employ-
ees.”484
For at least 1 month before the Board election, Hartman had
been performing her work assignments on LSD-49 along with
another employee, Kathy Henry. On Monday, June 28, the first
workday after the June 25 Board election, Hartman and Henry
were approached by Leadperson Willa Mae Craft. According to
Hartman:

She said, “I have to separate you; I am going to tell
you, Donald Harris told me to separate you all,” because I
had influenced the ladies to vote for the Union at the last
minute. . . .
She told me to go on one side of the ship, and she told
Kathy to go on the other side and work by ourselves.

Current employee Henry (vols. 60, 61) also testified that Craft
made the remarks in issue. Based on this testimony by Hartman
and Henry, paragraph 57 of the second complaint alleges that,
in violation of Section 8(a)(1), Respondent, by Craft, “told its
employees that an employee was being isolated from other

483 The female employees who cleaned rooms on ships were some-
times referred to by the witnesses as “the ladies.”
484 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against Hartman, as well as the
charge in Case 15–CA–12171–1.
employees because the employee aided or supported the Un-
ion.”485 Respondent denies that Craft is a supervisor within the
meaning of Section 2(11) of the Act, and Respondent denies
that Craft made the remark in question. Craft (vol. 101) denied
that she made the remark, but I found Henry and Hartman more
credible, and I find that Craft did make the remark. The only
issue, therefore, is Craft’s supervisory status.
Section 2(11) of the Act defines “supervisor” as:

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

As the statutory definition is couched in the alternative, posses-
sion of any one of mentioned indicia of supervisory status es-
tablishes an individual as a supervisor under the Act. The Gen-
eral Counsel contends that he has proved that Craft did “direct”
the work of crews of female CDC employees, and that she did
“discipline” them, within the meaning of Section 2(11). The
evidence, however, is that the only direction of work that Craft
gave was of a most “routine” nature; the work was the cleaning
of rooms, much like cleaning rooms in a home, as the General
Counsel acknowledges on brief. Moses did tell employees
which rooms to clean, and when, but no “independent judg-
ment” was employed by Craft; rooms were cleaned after crews
of construction workers finished whatever they had been doing.
Even in giving these directions, Craft acted as a mere conduit;
the construction departments told CDC supervision when they
were through, and the word came down through foremen to
Craft. Finally for the General Counsel’s “direction of work”
contention, it is to be noted that the General Counsel acknowl-
edges that salaried foremen also directly supervised Moses,
Henry, Hartman, and the approximately 6 to 10 other employ-
ees who cleaned rooms with Craft; if Craft were also a statutory
supervisor, this would be an elevated supervisory ratio for this
most routine work that the employees do. Also, there is no pro-
bative evidence that Craft disciplined employees. None of the
General Counsel’s witnesses testified that Craft ever disciplined
them. During the rebuttal phase of the General Counsel’s case,
Respondent produced documents pursuant to subpoenas con-
cerning other topics, and one of those documents was a warning
notice that Craft had signed as a “Witness.” The warning notice
is to an employee for absenteeism, but it is dated “9–5–91.” No
other warning notice signed by Craft was offered by the Gen-
eral Counsel. Aside from the singularity and remoteness of the
warning notice, however, it is to be noted that employees some-
times did sign warning notices as witnesses. For example, al-
leged discriminatee Joseph Melton signed as a “Witness” to a
warning notice that was issued by Pipe Department Foreman
James Walker.486 Neither party contends that Melton was ever a
supervisor. There being no probative, credible, evidence that
Craft possessed any of the statutory indicia of supervisory

485 Id.
486 Compare the signatures on R. Exhs. 361 and 363 with the G.C.
Exh. 72.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1402
status at any relevant time,487 I shall recommend that paragraph
57 of the second complaint be dismissed.
Hartman testified that after Craft separated her from Henry,
she was assigned to clean rooms by herself for the remainder of
the week. Hartman testified that, theretofore, she had only oc-
casionally been required to work alone in performing her clean-
ing duties on ships at wet dock-3. Hartman testified that on July
5 she began a 1-week vacation. When she returned to work on
July 13, she was assigned to work in the building area until
January 1994 when she was reassigned to do finish cleaning on
ships at wet dock-3.
Hartman testified that the two employer campaign meetings
at which she spoke up for the Union occurred in June. Hartman
further testified that Henry was present at both meetings, and,
“Lorraine Moses, I think was there.” Moses, it has been shown
above, was not working in the wet dock-3 area after June 1, and
Hartman’s expressed doubt about Moses’ being at the June
meetings was well founded. Henry, however, was at wet dock-3
during June. Henry testified that some employees spoke up for
the Union at employer campaign meetings that she attended
while working at wet dock-3, but she could not remember who
they were.
Cortez (vols. 96, 97) admitted that Hartman spoke up at one
employer campaign meeting that he conducted, but he denied
that Hartman ever spoke in favor of the Union. (Rather, Cortez
testified, Hartman spoke only about the historic failure of Re-
spondent to pay her for wages that she had lost after her layoff.)
Cortez further denied that he told Hartman that he knew that
she was in favor of the Union, and he denied asking Hartman
how she or any other employees felt about the Union.
It is understandable why Moses did not corroborate Hart-
man’s testimony about what she said at employer campaign
meetings. (Moses had been reassigned to the building area at
the time of the employer campaign meetings in question, and
Hartman was simply mistaken about the possibility that Moses
was present during the employer campaign meetings that Hart-
man attended in June.) It is not understandable, however, how
Henry could have failed to corroborate Hartman about her
prounion statements at employer campaign meetings if that
testimony had been truthful. Certainly, Henry knew Hartman,
and she appeared to be present to help Hartman to the extent
that she honestly could. I credit Cortez’ denial of Hartman’s
testimony that she spoke up for the Union at any employer
campaign meeting at which he was present. I further believe
Cortez’ testimony that he did not ask Hartman how she, or any
other employees, felt about the Union.
Although Craft told Hartman that she was being assigned to
work alone because Harris suspected her of influencing other
employees to vote for the Union, Craft was not a supervisor,
and there is no evidence that Harris, did, in fact, tell that to
Craft. Having discredited principal parts of the testimony upon
which the General Counsel relies as support for a prima facie
case that Hartman was unlawfully discriminated against by her
assignment to work alone and her assignment to work in the
building area, I shall recommend that paragraphs 33, 93, and 99
of the second complaint be dismissed.

487 The General Counsel further contends that Craft was Respon-
dent’s agent within Sec. 2(13) of the Act because she spoke against the
Union at employer campaign meetings. All employees were allowed to
voice their opinions at such meetings, however, and there is no evi-
dence that any supervisors ever led the employees to believe that Craft
was speaking for Respondent.
h. Larry Gibson
Larry Gibson (vols. 26, 60) is a former painter who, on May
28, 1993, was reassigned from the crew of one foreman to the
crew of another.488 The second complaint, at paragraph 85,
alleges that this reassignment was to more onerous working
conditions and that by making that assignment Respondent
violated Section 8(a)(3). The General Counsel contends that the
reassignment involved Gibson’s going from a job of touchup
painting to a more onerous job of using hand-held power tools
(power-tooling). The General Counsel contends that Respon-
dent assigned Gibson to the power-tooling job because he had,
just the week before, responded affirmatively to an unlawful
interrogation of himself and discriminatee Ancar at a local gro-
cery store (Comeaux’s). Respondent denies that the interroga-
tion occurred, but, as I have found above in Ancar’s case, it did.
Respondent contends that Gibson’s reassignment was not more
onerous than other work that he had previously done and that it
was made solely because Gibson was used to doing that type of
work.489 Ultimately, I find and conclude that the reassignment
of Gibson was unlawful.
On May 10, 1994, Gibson, who had been absent because of a
nonwork-related problem with his feet, asked for light-duty
work, but his request was denied; Gibson did not come to work
for several months thereafter when his condition improved. The
fourth complaint, at paragraph 27, alleges that Respondent’s
denial of light-duty work to Gibson violated Section 8(a)(3).
The General Counsel contends that Respondent denied Gibson
light-duty work because of his known union activities and ex-
pressions of sympathy which included his wearing of prounion
insignia, his responding affirmatively to the interrogation men-
tioned above, and his serving as an alternate union observer at
the June 25 Board election. Respondent answers that Gibson
was not given light-duty work because his condition was not
work related, he did not request a light-duty job in appropriate
fashion, and there was no light-duty work available at the time
that Gibson was competent to do. Ultimately, I find and con-
clude that the denial of light-duty work to Gibson, which was in
effect a suspension,490 was also unlawful.
(1) Gibson’s assignment to power-tooling
Reporting to Paint Department General Foreman Tommy
Bourgeois at wet dock-3 during 1993 were three “lead” fore-
men: Carl Mott Jr., Terry Knight, and Terry Merna. Reporting
to each lead foreman were several “line” foremen. Those line
foremen reporting to Mott included Randall Laborde, Eldon

488 Gibson had been discharged by time of trial; his discharge is not
alleged as a violation of the Act.
489 Respondent further contends that no charge was filed that sup-
ports the 8(a)(3) allegations for Gibson. Respondent acknowledges,
however, that the charge in Case 15–CA–12211–2, filed on July 9,
1993, alleges that Respondent violated Sec. 8(a)(3) “by change of con-
ditions of employment” of Gibson. The complaint allegation is there-
fore supported by the charge. Respondent also contends on brief that,
because a similar charge on behalf of employee James Lanham was
withdrawn, the General Counsel “is estopped” from acting on Gibson’s
charge. The withdrawal of Lanham’s charge was necessarily voluntary,
but, even if it had not been, Respondent cites as a basis for its position
no authority under any aspect of the law of estoppel. (At minimum,
there was no litigation of Lanham’s charge.) Respondent’s “estoppel”
argument is therefore also without merit.
490 Whether it was lawful or not, the denial of light duty to Gibson
on May 10 was a suspension because, by that denial, Respondent pre-
vented Gibson from working until he was able to assume full duties.
AVONDALE INDUSTRIES

1403
Pierre, and Richard Sahuque. Gibson testified that from about
1991 until May 1993, he only did touchup painting and “sell-
ing” of compartments of ships at wet dock-3 to Respondent’s
quality assurance (QA) inspectors. Compartments (and some of
the structures within compartments) went through several paint-
ing processes, and the inspectors would inspect after each. In
selling compartments, Gibson testified, he would accompany
the QA inspectors. If the QA inspectors found discrepancies,
Gibson would fix them with a roller or brush. While doing
touchup painting and room-selling, Gibson testified, he would
use power tools for scraping or buffing, but only for “[f]ive or
ten minutes” per room. Gibson testified that the only exception
to his touchup painting of rooms (and incidental power-tooling
of small surface areas during that process) was when he was
called upon to use power tools to apply an abrasive, “Non-
Skid,” to weather-exposed decks of ships. Gibson further testi-
fied that the application, and subsequent painting, of occurs
only about 3 weeks before sea trials, or near the end of the
building processes of ships. Gibson testified that “most often”
his foreman was Laborde and, from March through May 25,
Laborde was his only foreman. In May, Gibson was working on
LSD-49 which was only at the beginning of the construction
processes that are performed at wet dock-3.
As found above, Gibson and discriminatee Ancar met Fore-
men Laborde and Mott at a local grocery store one afternoon in
mid-May. At that time, in violation of Section 8(a)(1), Mott
asked Ancar and Gibson if they had signed union authorization
cards. Both Ancar and Gibson replied affirmatively. When
Mott asked Gibson and Ancar if they would vote for the Union,
both replied that they would. When Mott asked the employees
why they felt that way, Gibson went to his automobile and
brought back some prounion literature that he gave to Mott.
Gibson had previously told Laborde (who was then his personal
friend) of his prounion sympathies, but he had not previously
told Mott. In Respondent’s case, Mott admitted that he made
the decision to reassign Gibson from Laborde’s crew to Pierre’s
crew on May 31.
Gibson testified that on Pierre’s crew he did power-tooling,
and only power-tooling. More specifically, Gibson testified that
he was required only to use heavy, air-driven handtools that
scraped, chipped, and buffed slag from welds and other metal
detritus so that painting could be done. Gibson testified that no
other member of Pierre’s crew was required to do power-
tooling; the other members did only spray and brush painting.
Gibson further testified that all of the work that he did on Pi-
erre’s crew was outside, where he was sometimes rained out,
and some of his work was on scaffolds on the sides of the ship.
Gibson testified that the power-tooling was hard, dirty, and
dusty work that was quite unlike the work that he was required
to do when he was working on Laborde’s crew. When asked to
compare his room-selling work with power-tooling on the out-
side of the ship, Gibson replied: “Don’t get sent home. Not on
scaffolds. Better condition working.” Gibson testified, without
qualification, that when he worked on Laborde’s crew, he
worked in air-conditioning. Finally, Gibson testified that when
he was reassigned to Pierre’s crew, three other employees were
brought to Laborde’s crew to do touchup painting.
On June 30 Gibson was reassigned from Pierre’s crew to the
crew of Foreman Sahuque. Gibson testified that he was then
required to do power-tooling in the tanks of LSD-49 and paint-
ing there that involved climbing on beams. Gibson further testi-
fied that he also was required to paint with epoxy paint which
had “real bad” fumes. Gibson testified that there was inade-
quate ventilation as he worked in the tanks under Sahuque.
Current employee Leonard Watkins (vol. 44) testified about
power-tooling:

Well, it is hard. It is dusty. It is just a filthy job. I mean
when you are working overhead, you have got stuff falling
in your eyes. You have got protection for your eyes, but it
is not 100 percent. When you are working on a deck, your
back hurts and your knees hurt, and it is still the same
amount of dust and rust [and] fumes, all over the place. . . .
It is pretty noisy. . . . But if you wear earplugs, it is bear-
able.
They have got the kind [of power tool] that sands like
a big, heavy-duty sander. They have got the kind that
chips away paint, and they have got the kind that scrapes,
too. But mostly what they use is the big sanders, like a big,
high-power [disk] sander.

Respondent did not dispute Watkins’ description of power-
tooling work.
Gibson’s Power-Tooling Assignment—
Respondent’s Evidence
Attendance registers (G.C. Exh. 693 and R. Exh. 727) show
that from January 1 through Friday, March 5, Gibson was on
the crew of Foreman Luke Ledet. During the week of March 8
through 12, Gibson was on crews of Knight, Bourg Jr., and
Ledet. From Monday, March 15, through Tuesday, April 13,
Gibson was on the crew of Bourg, Jr. From Wednesday, April
14, through Tuesday, May 11, Gibson was on sick leave. From
Wednesday, May 12 through Friday, May 28, Gibson was on
Laborde’s crew. Therefore, contrary to Gibson’s testimony that
he was on Laborde’s crew for almost all of March, April and
May before he was reassigned to Pierre’s crew, he was on La-
borde’s crew for only 13 workdays during that period. As well
as also showing that, from Monday, May 31, through Tuesday,
June 29, Gibson was on Pierre’s crew, the exhibits further show
that from Wednesday, June 30, through Friday, December 24
Gibson was on Sahuque’s crew. (As discussed in the second
section of his case, Gibson started extensive sick leave on
Monday, December 27.)
Laborde testified that during May and June his crews did
work in compartments that preceded installation of insulation.
After any power-tooling in a compartment, the room is “blown
down” to free it of dust; then spray painting and touchup paint-
ing are done. Touchup painting is done with a swab or brush.
Foremen, not employees, usually accompany QA inspectors
when a room is supposed to be ready for inspection. The fore-
men will tell an employee if any discrepancies are found, and
that employee will do more touchup painting. Then insulation
is applied, and the compartment is painted again. Laborde fur-
ther testified that before insulation is installed in compartments,
they are not air-conditioned; there are ducts for ventilation, but
they are not completely efficient. Employees working outside
compartments therefore have better air to breathe. Laborde
testified that when Gibson was on his crew, his crew only did
painting that comes prior to insulation (when there was no air-
conditioning). Laborde was further shown his MCRs for May
31 and June 1; Laborde testified that two of the employees on
those MCRs were newly assigned to his crew on May 31 be-
cause they were slender and could get into overheads where
power-tooling needed to be done; Gibson is hardly a slender
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1404
person. Laborde, however, did not testify that while Gibson
was on his crew, all members of his crew did power-tooling, he
did not testify that he saw Gibson doing any power-tooling, and
he did not deny that Gibson participated in the selling of com-
partments to the QA inspectors. Also, Laborde did not testify
that Gibson was removed from his crew to make room for em-
ployees of slender build.491
On cross-examination, Laborde testified that, when Gibson
was on his crew, “I believe he was doing some light power-
tooling and touching up prior to insulation.” When asked if
Gibson’s “light power-tooling” consisted only of doing inciden-
tal work, Laborde completely evaded answering. Further on
cross-examination Laborde acknowledged that Ancar, who was
also removed from his crew on May 31, is about 5 foot 7
inches, and weighs about 160 pounds. (At the time that Ancar
testified, however, he was quite slender.) Laborde further ad-
mitted that, after Gibson (and Ancar) left his crew, other mem-
bers of his crew continued to do touchup painting. Finally on
cross-examination, Laborde testified that it was Lead Foreman
Mott who told him that Gibson was to be moved from his crew
to Pierre’s; Laborde testified, however, that Mott did not tell
him why the move was being made. (Laborde further acknowl-
edged that Ancar was moved from his crew, also on May 31,
but he testified that he did not know why. There is no allegation
that Ancar’s reassignment violated the Act.)
Mott (vol. 126) testified that “shrinking” is a process
whereby the bulkheads (interior walls) and overheads (ceilings)
of a ship are heattreated in order to remove superficial buckling
that occurs when (the enormous) weights are put above them.
The process results in the need for repainting of essentially all
overheads and bulkheads after a ship reaches wet dock-3. Mott
was asked why he reassigned Gibson from Laborde’s crew to
Pierre’s crew on May 31, and he testified:

Well, because there again, we was doing interior work,
new construction. The ship was shrunk solid, and Larry
was a NonSkid roller, and he was an exterior person. He
knew the exterior, so I moved him to the outside.

Mott was not asked why he chose to remove Gibson on May 31
and not before that date. Mott testified that he considered
power-tooling outside of compartments more agreeable work
than power-tooling inside compartments because there was a
greater concentration of dust on the inside. Mott further testi-
fied that Gibson was one of “maybe a handful” of employees
who had been trained to apply NonSkid to decks. Mott did not
dispute Gibson’s testimony that NonSkid is applied only to-
ward the end of the construction process at wet dock-3, shortly
before sea trials. Mott did not testify that Gibson did, in fact,
apply any NonSkid before the end of 1993 when he was on
Pierre’s crew or Sahuque’s crew.
Pierre (vol. 114) testified that, when Gibson was on his crew,
he did power-tooling of decks, but Pierre did not testify that
Gibson’s power-tooling on his crew included the application of
NonSkid. (In fact, Pierre did not mention NonSkid in his testi-
mony.) Pierre acknowledged that Gibson did work on a scaf-
fold, but, Pierre testified, “Most of the time, he wasn’t on a
scaffold.” Pierre further testified that other employees on his
crew did power-tooling. Pierre denied that any member of his

491 Gibson testified that, on May 28, he heard Lead Foreman Knight
tell Laborde that “changes” were to be made on May 31. Laborde and
Knight (vol. 115) denied that testimony. I believe Gibson, but the tes-
timony proved nothing.
crew was ever required to power-tool for an entire day; he testi-
fied that, on days that Gibson did power-tooling, he also would
spend part of the day painting. Pierre also testified that, while
Gibson was on his crew, his crew was never rained out.
Gibson’s Power-Tooling Assignment—Conclusions
I shall not repeat Watkins’ unchallenged (and credible) tes-
timony of the nature of power-tooling; it is hard, dirty work—
much harder and dirtier than touchup painting (or any other
type of painting).
Gibson clearly exaggerated the amount of time that he spent
on Laborde’s crew. I further find that Gibson was never rained
out when he worked on Pierre’s crew; he did paint, as well as
power-tool, on Pierre’s crew; and the other members of Pierre’s
crew also did power-tooling. Nevertheless, after considering all
of the testimony, it is clear to me, and I find, that Gibson did
substantially more power-tooling on Pierre’s crew than the
“touch-up” power-tooling that he had done on Laborde’s crew.
In addition, Gibson was required to do the more difficult, dan-
gerous work of power-tooling on scaffolds while working on
Pierre’s crew (albeit not “[m]ost of the time,” as Pierre would
put it). Moreover, although it was shown that Gibson was not
on Laborde’s crew before May 12, it is not disputed that he
spent most of his time during the period from March through
May 12 indoors, doing touchup painting. It is further not dis-
puted that, during this period, he did accompany QA inspectors
and do final touchesup (to get painted areas passed to the next
stage of construction). Finally, Laborde essentially corrobo-
rated Gibson by testifying that Gibson did only “light” power-
tooling, as part of the process of touchup painting, during the
period from May 12 through 28. I therefore find that the work
to which Gibson was assigned on May 31 was more onerous
than that which he had done before. This more onerous work
assignment, however, lasted only until June 30 when Gibson
was reassigned to Sahuque’s crew. It is apparent, even by Gib-
son’s own account, that the power-tooling that he did on Sahu-
que’s crew was only incidental to his painting work, just as it
was incidental to his painting work when he was on Laborde’s
crew. The other adverse factors to which Gibson credibly testi-
fied that he was subjected while working on Sahuque’s crew
are the normal conditions of any painter. (Indeed, the working
conditions of Sahuque’s crew appeared to be better than those
of Pierre’s crew.)
Therefore, the issue becomes whether the General Counsel
has presented a prima facie case that Gibson’s assignment to
more onerous work on Pierre’s crew was unlawfully motivated.
The date of the meeting at Comeaux’s Grocery Store was not
established, except that it was in mid-May. The assignment
came on May 31. Therefore, within no more than 10 or 11 days
after Gibson was interrogated by Mott, and within nor more
than 10 or 11 days after Gibson responded affirmatively to that
interrogation,492 Gibson was reassigned to more onerous work
by Mott. The timing, alone, supplies the element of animus for
Gibson’s case. Moreover, Respondent’s animus toward em-
ployees’ prounion sympathies is established throughout this
decision. Accordingly, I find and conclude that the General
Counsel has presented a prima facie case that Gibson’s May 31

492 As well as answering affirmatively to Mott’s interrogation about
whether he had signed a union authorization card and whether he would
vote for the Union, Gibson told Mott why he thought a union would be
beneficial for the employees, and he also presented Mott with union
literature.
AVONDALE INDUSTRIES

1405
reassignment was unlawful, and Respondent’s defense for that
action must be examined.
Mott testified that “Larry was a NonSkid roller, and he was
an exterior person. He knew the exterior, so I moved him to the
outside.” Even if Gibson was “an exterior person,” he had not
suddenly become such. Laborde testified that Mott did not tell
him why he was taking Gibson from his crew and sending him
to Pierre’s; if it had been because Gibson was “an exterior per-
son,” or any other legitimate reason, Mott would presumably
have told Laborde so. Mott’s testimony that Gibson’s ability to
roll NonSkid played a part in the reassignment was a complete
fabrication. Gibson’s testimony that NonSkid is not applied
until just before sea trials was not disputed. Respondent’s re-
cords show that the first sea trial of LSD-49 was not scheduled
until April 18, 1994, almost a year later. Laborde testified that,
after Mott reassigned Gibson to Pierre’s crew, his crew re-
ceived two “slimmer” painters; Laborde, however, never testi-
fied that, somehow, Gibson was removed from his crew to
make room for those slimmer painters. Indeed, Laborde did not
testify that Gibson’s comparative heft in any way interfered
with his ability to do interior work, and, as I have noted, Re-
spondent did not dispute Gibson’s testimony that for several
months he had done only interior work, except when he per-
formed occasional NonSkid applications. That is, neither Mott
nor Pierre testified that there was some particular need for an-
other “exterior person” on Pierre’s crew at the time that Mott
ordered the reassignment (except for the NonSkid testimony of
Mott that I have discredited).
Respondent has therefore not shown that it would have reas-
signed Gibson to more onerous work on May 31 even in the
absence of his known protected activities. Accordingly, I con-
clude that by doing so Respondent violated Section 8(a)(3).
(2) Gibson’s being denied light-duty work
Gibson testified that during the week before the June 25
Board election he placed a union sticker on his hardhat, but he
took it off immediately after the election. At the election, Gib-
son served as an alternate observer. For several hours on the
day of the election, Gibson and other alternates stood outside
Respondent’s headquarters building, and at a main gate, where
they carried signs and passed out union literature. Gibson
credibly testified that, as he did so, Mott, Laborde and Pierre
came to the area and watched for about 20 minutes; at one point
Gibson saw Laborde looking at him and shaking his head.
In late December 1993, because of a condition that did not
relate to his employment with Respondent, Gibson had surgery
on his feet. As noted above, Gibson began sick leave on De-
cember 27. Gibson testified that on May 3, 1994, he went to his
doctor’s office.493 On a prescription form, the doctor wrote:

Larry Gibson may return to light duty at this time with no ex-
cessive standing or climbing.

The note was originally dated “4/3/94,” but the “4” that would
indicate April is marked over with a “5.” The note was not
introduced through Gibson, and he was not asked about the
alteration on direct examination or cross-examination.
Gibson testified that on May 10 he went to Respondent’s
medical department and presented the note to two attendants
whose names he did not know. The attendants told him to go to
Paint Department Superintendent Bourg and ask him about

493 All dates mentioned in the remainder of Gibson’s case are in
1994, unless otherwise indicated.
getting light-duty work. Gibson further testified that he then
went to Bourg and presented the doctor’s note to him. Accord-
ing to Gibson, Bourg asked him no questions about the doctor’s
note. Bourg did ask Gibson if his condition was work related;
Gibson replied that it was not, and Bourg told him: “[W]e could
have [placed] you somewhere if . . . it was a job-related, . . .
[b]ut if it is not job-related, we don’t have no light-duty work.”
Gibson testified that Bourg told him to go back to the medi-
cal department. There the attendant told him that he was to call
in each day thereafter and see if there was any light-duty work,
and that Gibson was to return when his doctor released him to
full duty. Gibson further testified that there were several light-
duty jobs that, theretofore, had been made available to injured
employees; these included some touchup painting jobs, color-
coding of pipes, taping, crushing empty paint cans, small tool
repair, and toolroom work. Gibson testified that he returned to
work about July 20 when he was first able to resume regular
painter’s duties.
Paint department employee Vernon Forest (vol. 60) testified
that at different times in 1992, 1993, and 1994 he asked Bourg
for light-duty work because he had bleeding ulcer and colon
problems. Forest testified that when he asked for light duty in
1992 and 1993, Bourg put him in the repair shop where he did
light repairs and sometimes drove the Bobcat (a small tractor-
sweeper). Forest further testified that everyone in the shop was
“sick.” Forest testified that Bourg never asked him if his ulcer
and colon condition were work related. Forest acknowledged
that the last two times that he asked for light duty Bourg denied
his request. (Forest was on medicalleave at the time that he
testified.) On cross-examination Forest acknowledged that
Bourg required him to go through the medical department be-
fore Bourg would give him a light-duty job.
Paint department employee James Lanham (vol. 61) testified
that he sustained neck and back injuries in an automobile acci-
dent in 1986. After missing some time because of those inju-
ries, Lanham later returned to work. In 1991, however, he had
something of a relapse of his symptoms; Lanham testified that
he began having trouble with his shoulders and neck and “I just
couldn’t do my job.” He then missed 22 workdays, but returned
with restrictions that he could not lift more than 50 pounds and
could not work “with my hands over my head.” Lanham went
to the medical department where he was examined by Dr. Ma-
bey (the Respondent’s in-house physician) and given forms to
take to the paint department. Lanham met with Bourg and Gen-
eral Foreman Tommy Bourgeois. At the conclusion of that
meeting, according to Lanham, Bourg told Bourgeois to “find
me something to do that I don’t have to work with my hands
over my head or lift over 50 pounds.” The next day, Lanham
was given brush-painting jobs; shortly thereafter he was as-
signed to light duty in toolrooms where he worked until 1993.
On cross-examination Lanham was asked if the paper from the
medical department did not tell Bourg how long his restrictions
were to last; Lanham testified that “I didn’t get to read it.”
(That answer was incredible.)
The General Counsel called Bourg as an adverse witness on
day-59 of trial. Bourg asserted unequivocally: “I don’t give
light duty to a personal injury.” By “personal,” Bourg ex-
plained, he meant not work related. If an injury is work related,
Bourg testified, he would attempt to find suitable light-duty
work for an employee. Bourg further testified that he does not
give light-duty work to any employee (even if a malady was
work related) unless that employee presents a completed, stan-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1406
dardized, form from the medical department which lists the
limitations of the employee and the durations of those limita-
tions.
Bourg was shown the doctor’s note quoted above, but he
flatly denied that Gibson presented him with that paper or any
other paper. Bourg testified that Gibson came to him and asked
for light-duty work because he was limited in how much he
could walk and “he said he couldn’t climb or stand for any
length of time.” Bourg admitted that he told Gibson that if his
condition were work related he would attempt to find light-duty
work for him, but, since it was not, he would make no such
attempt. Bourg testified that not putting employees on light
duty unless their injuries were work related was “my rule,” and
it had been his rule since 1989 when he became superintendent
of the paint department.
Bourg testified that he could not remember Lanham, but he
did remember Forest. Bourg testified that he knew that Forest
suffered from a bleeding ulcer, and he admitted to placing For-
est on light duty because of it, but Bourg testified: “I thought at
the time it was work related, because, you know, we do deal
with hazardous types of chemicals. And I thought the stuff that
he was dealing with at that time was—may have caused this.”
Bourg acknowledged, however, that he had no reason to think
that Forest ever received workers’ compensation for the time
that he lost because of his ulcer condition. Bourg testified that
each time that Forest asked him for light-duty work, he did not
consider the request unless Forest presented forms completed
by the medical department stating the nature and duration of
Forest’s incapacity. Bourg testified that, at some point, the
medical department personnel told him that Forest’s condition
was not work related, and he thereafter did not assign Forest to
light-duty work.
When Bourg was called in Respondent’s case (vol. 82), he
was asked nothing about Gibson; on cross-examination, how-
ever, Bourg was asked and he testified:

Q. In regard to employees in the Paint Department that
become medically unfit in circumstances such as when
their health no longer allows them to be out in the dust and
paint fumes, instead of firing those employees, you put
them in positions such as the tool room or in hazardous
waste areas.
A. If there is spots available, we do. We make an effort
to—instead of terminating that employee, yes, sir. We try
to find work within the yard.
Q. For example, a job might be the can-crusher?
A. Could be the can crusher; could be anything; could
be even outside my department.
Q. Or—and tool room man would be an example.
A. It could be.

(Again, a can-crusher is a pneumatic machine that was some-
times operated by employees on light duty.)
Denial of Light-Duty Work to Gibson—
Respondent’s Evidence
Respondent called Bourgeois (vol. 132) who testified that he
once gave Lanham a toolroom assignment, but Lanham was not
on light duty at the time, and Lanham’s physical condition had
nothing to do with his assignment. Bourgeois, however, did not
deny that he attended a meeting with Lanham and Bourg and in
that meeting Bourg told Bourgeois to get Lanham a light-duty
job.
Respondent called several other witnesses who testified that
all of the light-duty jobs that Gibson named required “some”
climbing and “some” standing, and that Gibson was not quali-
fied to do some of them, even if he had been fully able.
Respondent’s medical director, David Sansoni (vol. 140),
testified that the medical department attendants would never
accept as conclusive evidence of a need for light duty a private
doctor’s memorandum that was (1) altered or (2) does not con-
tain a diagnosis and estimation of period of disability. Sansoni
further testified that the attendants are required to give stan-
dardized forms to the employees and tell them to have their
physicians complete them with a diagnosis and a prognosis.
(The details of this procedure, including the wording of the
forms used, are found above in the case of alleged discrimina-
tee Charles Giles.)
Denial of Light Duty to Gibson—Conclusions
I simply do not believe that Gibson attempted to come back
to work after being on sick leave for nearly 6 months, and at-
tempted to be placed on light duty, without presenting any
documentation. Respondent stressed in the above-decided ab-
senteeism cases that its employees are regularly told that they
must bring some documentation to explain every absence.
Moreover, no reasonable employee would attempt to seek light
duty without some documentation. It is further clear that em-
ployees know that they must come through the medical depart-
ment when they return from extended absences due to health
reason. I believe, therefore, that Gibson did take the doctor’s
note to the medical department.
I do not believe, however, that Gibson was told by any medi-
cal department attendants that he should just take the doctor’s
note to Bourg. Sansoni was credible in his testimony that the
attendants are required to give the standardized forms to the
employees and tell them to have their physicians complete them
with a diagnosis and a prognosis.494 Lanham and Forest had to
go through this procedure before receiving light-duty work
assignments. I believe, and find, that the attendants gave Gib-
son the forms that are routinely required of employees who
come back from sick leave and request light duty (again, see
Giles’ case above).
Gibson, it appears to me, did not take the standardized forms
back to his doctor because his doctor had found that Gibson
was able to return to work (albeit on light duty) as of “4/3/94,”
as the doctor stated in his note. Any answers that the doctor
would have given on the standardized forms simply would not
have jibed with Gibson’s presentation of himself as newly
ready to go back to work on May 10. Therefore, I find that the
medical department personnel told Gibson to follow the usual
procedures, but Gibson declined to do so. Gibson, instead, went
directly to Bourg, presented the doctor’s note, and requested
light duty. Gibson’s alteration of the note and his disregard of
Respondent’s procedures, however, became irrelevant because
Bourg essentially admitted that, no matter what Gibson had
done, he would not have given Gibson a light-duty job.
The doctor’s note that Gibson presented to Bourg stated,
“[N]o excessive standing or climbing.” It did not state “[N]o
climbing or excessive standing.” The doctor plainly meant that
Gibson should do no “excessive” climbing and he should do no
“excessive” standing, as Bourg assuredly knew. (And if Bourg

494 Sansoni was further credible in his testimony that the medical de-
partment would never accept such an obviously altered memorandum
as that which Gibson presented.
AVONDALE INDUSTRIES

1407
had had any doubt about the matter, he could have asked Gib-
son what the note meant.) Therefore, Respondent’s testimony
that all light-duty paint department jobs require “some” stand-
ing and “some” climbing is hardly persuasive. Moreover, Re-
spondent’s testimony that Gibson was unqualified for various
light-duty jobs in the paint department is simply not relevant
because Bourg’s own testimony made it clear that he was not
going to give Gibson a light-duty job even if there were avail-
able many of light-duty jobs in the paint department and Gib-
son was qualified to do all of them. I also found to be incredible
the testimony of Respondent’s witnesses that Gibson was not
suited for any possible light-duty job in the yard. It is clear that,
even if Gibson had not done every possible light-duty job be-
fore, he could have performed some of them with a minimal
amount of training; for example, color-coding of pipes. Finally,
even if this testimony were relevant (and credible) it would not
prove a defense. Bourg testified that he would search the yard
to honor light-duty requests, if they were work related. That
qualification was proved false, as I find infra, by the evidence
relating to Forest and Lanham. Therefore, to have treated Gib-
son nondisparately, Bourg would have had to search the yard
for a light-duty job that he could do.
Bourg and Gibson agree that Bourg asked Gibson if his con-
dition was work related. Bourg did not testify that he asked
Forest if his condition was work related, and Forest credibly
denied Bourg did so. Bourg did not bother to investigate the
matter until Forest had been on light-duty jobs for 2 years, and
it appears that Bourg’s investigation occurred only after the
Gibson matter arose. Bourg knew that Forest was not receiving
workers’ compensation, and his testimony that he once believed
that Forest’s ulcer condition was work related was simply not
credible. Lanham, as well, was placed on light duty for about a
2-year period because he had suffered an injury in an automo-
bile accident. Bourgeois’ testimony to the contrary did not in-
clude a denial of the meeting among Lanham, Bourg, and
Bourgeois in which Bourg told Bourgeois to find Lanham a
light-duty job. Moreover, Bourg was not called by Respondent
to deny Lanham’s testimony on this point. I therefore discredit
Bourgeois’ testimony to the extent it conflicts with Lanham’s.
Accordingly, I find that Gibson was treated disparately.495
There is no reason to believe, and I do not believe, that in
1994 there was a dissipation of the animus that caused Gibson’s
assignment to more onerous work in 1993. If anything, there is
reason to believe that Respondent’s animus toward Gibson’s
protected activities increased after he served as an alternate
union observer in the Board election.496 It has also been proved
that Gibson was treated disparately; therefore, Respondent has
not shown that it would have suspended Gibson from May 10

495 As Respondent points out on brief, Forest and Lanham were
prounion employees, but they became so only after the organizational
campaign attempt began in March 1993 which was after they were
assigned light-duty jobs because of their conditions that were not work
related. Moreover, Bourg did not testify that he knew that Lanham and
Forest ever held prounion sympathies.
496 As found above, on May 28, 1993, Sheetmetal Department Gen-
eral Foreman Michael Torres unlawfully threatened union election
observer Michael James Boudreaux with unspecified reprisals because
Boudreaux was not on Respondent’s “side.” Immediately after Giles
served as an observer, he was assigned to more onerous, and humiliat-
ing, duties. Immediately after St. Blanc served as a union observer, he
was reassigned from bench work to the more onerous work of cable-
pulling. Union election observer Perera was unlawfully issued three
warning notices, two of them in 1994.
to July 20, by denying him light duty, even in the absence of his
protected activities. I therefore conclude that by the May 10
suspension of Gibson Respondent violated Section 8(a)(3).497
i. Harold Mikkel’s harassment and assignments to do other
employees’ work
Harold Mikkel (vol. 13), a sheet metal mechanic, was given
several instructions and several assignments by a supervisor in
mid-May 1993. The second complaint, at paragraph 84, alleges
that these instructions and assignments constituted assignments
of onerous work and harassment498 in violation of Section
8(a)(3). The General Counsel contends that the assignments to
Mikkel were made because of his known union activities and
expressions of sympathy which included his wearing prounion
insignia and speaking favorably about the organizational at-
tempt. At paragraph 25, the second complaint further alleges
that, in violation of Section 8(a)(1), Mikkel was warned by a
supervisor that his union activities would be futile. Respondent
denies that the warning occurred. Respondent further answers
that the assignments in question were nothing but routine work
instructions.
Only Mikkel testified in support of these allegations, and all
of Mikkel’s testimony concerns one statement and several acts
by one supervisor, Foreman Percy Waugespak. Waugespak,
however, denied Mikkel’s testimony about the warning, and he
explained the basis for his instructions to Mikkel, and
Waugespak was at least as credible as Mikkel. I therefore find
and conclude that the General Counsel has failed to prove by a
preponderance of the evidence that the threat to Mikkel oc-
curred or that there was any unlawful discrimination against
Mikkel. I shall therefore recommend that these allegations of
the complaint be dismissed.
j. Archieve Triggs and Gerald Leban
The steel control department (steel department) is responsi-
ble for receipt and distribution of very large and heavy steel
plates and beams that arrive at the yard by rail. In performing
this function, the steel department operates two stationary
cranes and two moveable cranes. The moveable cranes operate
on standard (57-inch) rails. The moveable cranes are called
“locomotive cranes” because the power units are diesel loco-
motives that have cranes as superstructures. After lifting steel
from incoming freight trains, the locomotive cranes drop the
steel on cars that are coupled to the locomotive cranes. The
steel is either taken immediately to various points in the yard,
or it is stored in the steel department’s receiving area for later
distribution. In either event, the distribution is accomplished in
large part by use of an internal rail system. One point to which
the locomotive cranes regularly takes steel is the shot-blast
area. In that area are located the steel department’s two station-
ary cranes which are magnetic cranes. Each of the steel depart-
ment’s four cranes has an operator and an expediter. The expe-
diter organizes the work and serves as a communications link

497 Gibson’s apparent alteration of the doctor’s note, and his admit-
ted failure to appear for work even for a week after he received that
“5/3/94” note, make it apparent that he was less than conscientious
about working. Of course, if at the compliance stage Respondent can
show that Gibson was able to assume full duties before July 20, any
backpay due to him will be accordingly reduced.
498 Actually, the complaint does not use the word “harassment,” but
that is the essence of the allegation that was made, and the matter was
fully litigated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1408
for the operator. Crews on the locomotive cranes also have two
or more riggers.
Archieve Triggs (vol. 21) is an expediter. Gerald Leban is a
rigger who sometimes works with the locomotive-crane crews
and sometimes with other crane crews in the yard. This is be-
cause riggers are not assigned permanently to the steel depart-
ment; riggers are permanently assigned to the crane-and-rigging
department (crane department) which dispatches riggers to the
many departments that use the many cranes (of many types)
throughout the yard. At the times in question, Leban was as-
signed to Triggs’ crew (as it was called at the hearing) on Lo-
comotive Crane-19. Frederick Leggins, Herford Parker, and
Calvin Williams were also riggers who often worked on Triggs’
crew.
Triggs testified that, at some time after the June 25 Board
election, his supervisors began watching his crew more closely;
Triggs further testified that, at the same time, the supervisors
began assigning to him, and to the riggers who worked with
him (mostly Leban and Leggins), cleaning duties that the crew
had never before been assigned to do. Triggs testified that Re-
spondent assigned no such duties to the crane operator who
worked with him. Paragraphs of the second complaint that al-
lege violations of Section 8(a)(3) are:

89. Since about June 25, 1993, Respondent imposed
more onerous working duties on its employees assigned to
the locomotive-crane crew employees, including Gerald
Leban, Frederick Leggins, Herford Parker, Archieve
Triggs, Calvin Williams, and other employees known to
the Respondent. . . .
. . . .
91. Since about June 25, 1993, Respondent more
closely supervised the employees under the supervision of
Dennis Zeringue.

The General Counsel contends that Respondent more closely
supervised Triggs’ crew, and assigned to Triggs and his riggers
new cleaning duties, because of the known union activities and
expressions of sympathies of Triggs and the riggers. Those
activities included the wearing of “Union-Yes” stickers, the
wearing of prounion T-shirts, and the refusals of those employ-
ees to wear “Vote-No” stickers that were allegedly distributed
by supervisors. Respondent answers that there were no changes
in the supervision or duties of Triggs’ crew around the time of
the election, except those changes that were called for by the
needs of the job. Ultimately, I find and conclude that Respon-
dent did not violate Section 8(a)(3) in regard to its supervision
of Triggs and the other locomotive crane crew members.
(The original charge in Case 15–CA–12334–2, filed on Sep-
tember 24, 1993, alleged that Respondent had violated “Section
8(a)(1) and (3)” by “interfering, restraining and coercing in the
exercise of employees[‘] rights because of their membership
and [/] or activity in [sic] behalf of the Metal Trades Counsel.”
The charge then names Triggs, Parker, Leban, Leggins, and
Williams. An amended charge was filed on May 26, 1994, spe-
cifically alleging the imposition of “more onerous working
duties” on the named employees, and the amended charge fur-
ther alleges that Respondent “more closely supervised” the
named employees. On brief, Respondent contends that the
original charge is too “conclusory” to be valid, and that the
amendment is beyond the 6-month limitations period of Section
10(b). These objections were not raised at trial, and the allega-
tions were fully litigated. Therefore, Respondent’s contention
must be rejected on this basis alone. Moreover, the original
charge tolled the running of the statute because: (1) it specifi-
cally alleged that the named employees’ rights had been vio-
lated by Respondent’s violations of Section 8(a)(3); and (2) it
alleged that employees “membership” rights had been inter-
fered with, the literal topic of Section 8(a)(3). Finally, although
the amended charge was filed more than 6 months after the
alleged discrimination, it was timely filed because it “relates
back” to the original charge. Kelley-Goodwin Hardwood Co.,
269 NLRB 33, 36–37 (1984). I therefore reject Respondent’s
contentions in this regard.)
The second complaint, at paragraph 128, further alleges that
on October 13, 1993, Triggs and Leban were issued warning
notices in violation of Section 8(a)(3). The General Counsel
contends that the warning notices were issued because of the
Union activities of Triggs and Leban, as mentioned above. The
complaint further alleges that, in violation of Section 8(a)(1),
Triggs was warned by a supervisor that the employees’ collec-
tive-bargaining efforts would be futile. Respondent denies that
the futility warning occurred. Respondent further answers that
Triggs and Leban were issued warning notices on October 13
solely because they left their work area to observe the aftermath
of an accident that involved a boom that fell from a gantry
crane. The General Counsel replies that many other employees
left their work area at the same time to see the result of the fall
of the gantry-crane’s boom, but only Triggs and Leban were
punished, and that Triggs and Leban were therefore disparately
treated.499
Foreman Floyd Fontenot is the immediate supervisor of the
two locomotive-crane crews. Dennis Zeringue is Fontenot’s
general foreman. Leban’s foreman in the rigging department is
Johnny Bachus, but when he is assigned to the different cranes
in the yard, Leban also reports to the supervisors in charge of
the cranes in those departments, such as Fontenot and Zeringue.
Triggs testified that during the preelection period he regu-
larly wore one or two “Union-Yes” stickers on his hardhat.
Triggs further testified that the four riggers who were assigned
to the steel department during the preelection period (Leban,
Leggins, Williams, and Parker) also wore “Union-Yes” stickers
on their hardhats. Triggs further testified that, conversely, none
other of the operators or expediters in the steel department wore
“Union-Yes” stickers; in fact, according to Triggs, the three
other steel department expediters and the crane operators wore
“Vote-No” stickers. Triggs further testified that he acquired six
or seven prounion T-shirts about the time of the June 25 Board
election, and he thereafter wore one to work almost every day.
On cross-examination Fontenot acknowledged that he knew at
least a month before the Board election that Triggs and the
riggers who usually worked with him, Leban and Leggins, were
prounion employees. Fontenot further acknowledged that the
operator of the crew on which Triggs worked did not wear any
prounion insignia. Fontenot further acknowledged that he re-
ported his knowledge of the prounion sympathies of Triggs,
Leban and Leggins to Zeringue.

499 On brief, Respondent also contends that this allegation of the
complaint must be dismissed because it was not stated in the original
charge. Again, this contention was not raised at trial, and the matter
was fully litigated. Moreover, the complaint allegations of related vio-
lative conduct that occurred after the filing of the original charge are
supported by that original charge under Sec. 10(b). NLRB v. Fant Mill-
ing Co., 360 U.S. 301 (1959).
AVONDALE INDUSTRIES

1409
Triggs testified that about 2 weeks before the June 25 Board
election Zeringue called him aside and engaged him in a long
conversation about the organizational attempt, which Triggs
recounted (at length). Triggs testified:

[Zeringue] was telling me about how far a black man
have come in the Company since he had been there, and I
told him [that] I wasn’t interested in that, because I would
like to advance as far as I can myself.
And he asked me, what did I think the Union could do
for me? I told him, “I don’t know, but I would like to find
out. If the Union come in the yard, I would like to find out
for myself what they could do for me.” And [I told
Zeringue that] I didn’t know specifically [what the Union
could do for me], but the Company wasn’t doing nothing
for me.
And I also told him during this same conversation
[that] my daddy worked for a union for 45 years, and it
hadn’t hurt him; it had done a lot of benefits for him. . . .
[A]fter I told him about I thought what the Union
might do for me would they come through, he say [that]
that ain’t never going to happen as long as he there.
And there wasn’t much more to it. He walked off. He
also offered me a “Vote-No” sticker during this conversa-
tion, and I told him I wasn’t going to wear that. . . . He had
some—a handful of stickers, “Vote-No” stickers, that he
was issuing to whoever wanted them. . . . He inquired, you
know, about, “Do [you] want one of these stickers?”
[I said], “No, I don’t want none of them; I am not go-
ing to wear it.”

Based on this testimony by Triggs, paragraph 38 of the second
complaint alleges that Zeringue, “informed its employees that it
would be futile for them to select the Union as their bargaining
representative.”500
Zeringue (vol. 78) acknowledged that he spoke individually
with Triggs about the organizational attempt, but he testified
that:

Well, I just told him that I just didn’t see any benefit to
the Union being in the Company, that I think it has a lot of
interruptions and stops the flow of the yard, the way it
works now, that it was no benefit at all for the Union to be
in the Company.

Zeringue flatly denied that he told Triggs that the Union would
not come into the yard if he had anything to do with it.
Zeringue, however, did not deny asking Triggs what he thought
the Union could do for him, and he did not deny offering to
Triggs and other employees “Vote-No” stickers.
I credit Triggs. Zeringue sounded as if he were reciting what
he was supposed to have said to employees rather than what he
did say. Moreover, although Zeringue testified that he had re-
ceived Respondent’s TIPS instructions not to threaten, interro-
gate, promise or conduct surveillance, he did not deny that he
interrogated Triggs by asking Triggs what he thought the Union
could do for him, and he did not deny that he interrogated
Triggs by offering him a “Vote-No” sticker. Finally, Zeringue
offered no testimony that he was instructed not to warn em-

500 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against Triggs, as well as the
charge in Case 15–CA–12171–1.
ployees that their collective-bargaining efforts would be futile,
and I believe, and find, that he did so. That is, I find and con-
clude that, in violation of Section 8(a)(1), Respondent, by
Zeringue, in June 1993, warned an employee that the employ-
ees’ collective-bargaining efforts would be futile.
(1) Locomotive-crane crew’s cleanup assignments and
closer supervision
Triggs testified that before the election, when a crane broke
down, the operator would help any mechanic that was called.
Triggs testified that he would sometimes also help the me-
chanic, but usually he would do nothing while the repairs were
being made. Triggs testified that after the election he and his
riggers were assigned to do cleanup when the crane was down
for repairs and that Zeringue, at least on some occasions, stood
and watched them.
Zeringue, however, credibly testified that cleanup was part
of the locomotive-crane crew’s regular duties. For periods in
the spring, the locomotive cranes suffered a spate of break-
downs, and the rigging crews were often idle for half-hour pe-
riods or more. When this occurred, Zeringue and Fontenot re-
quired the employees to police the area, rather than to just sit
around. Zeringue acknowledged that he did stand and watch
Triggs’ crew, but only after the crew had repeatedly stood and
done nothing when they should have been doing some cleaning.
I credit Zeringue’s testimony on this point, and I shall recom-
mend dismissal of the allegations of the complaint that Triggs’
crew was assigned onerous duties, and was more closely super-
vised, after the Board election, in violation of Section 8(a)(3).
(2) Triggs’ and Leban’s warning notices for leaving
the work area
As previously mentioned, a Mississippi River levee runs
through Respondent’s property. On October 13, a boom fell
from a gantry crane that was operating on the riverside of the
levee. Triggs testified that he and Leban left their work area,
which was outside the levee, to view the aftermath of the acci-
dent. When they got to the top of the levee, according to Triggs,
there were about 150 other employees there, including forklift
driver Wendell Fontenot, son of Foreman Floyd Fontenot.
Triggs testified that after he and Leban had stayed about 5 min-
utes, Fontenot approached them and told them to return to their
work area. Later in the day, Fontenot issued warning notices to
Triggs and Leban. Fontenot stated on each warning notice:
“Employee left work area to go across the levee to “check-out”
a Gantry Boom that had just fallen.” Triggs testified that when
Fontenot issued the warning notice to him, “I say, ‘Your son
was up there; you didn’t write him up.’ He told me his son
didn’t work for him.”
Fontenot acknowledged that many other employees, includ-
ing his son, were standing on the levee, doing nothing, at the
time that he saw Triggs and Leban on the levee. Fontenot fur-
ther testified, however, that none of those other employees were
working under his supervision as were Triggs and Leban. There
is no evidence to the contrary. Also, there is no evidence that
any employees, other than Leban and Triggs, left their work
areas outside the levee to watch the aftermath of the accident
that had occurred on the riverside of the levee (where the em-
ployees had been in more potential danger and were reasonably
distracted from their work).
In summary, as Triggs acknowledged, he and Leban were
out of their work area at the time that Fontenot saw them on the
top of the levee. I therefore find and conclude that Respondent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1410
has shown that it would have issued the October 13 warning
notices to Triggs and Leban, even absent their union activities.
Accordingly, I shall recommend dismissal of this allegation of
the complaint.
11. Denial of benefits to employees
a. Robert Ruiz’ being denied the use of a telephone
Robert Ruiz (vol. 53), a shipfitter, testified that on May 12,
1994, he asked for permission to use a pay telephone during
working time, but he was denied that permission by his fore-
man. The fourth complaint, at paragraph 28, alleges that the
supervisor’s action violated Section 8(a)(3). The General Coun-
sel contends that Respondent denied the permission to Ruiz
because of his known union activities and expressions of sym-
pathy which included his wearing prounion insignia. The com-
plaint further alleges that the supervisor threatened Ruiz with
unspecified reprisals in violation of Section 8(a)(1). Respon-
dent denies that there is a charge that supports either the allega-
tion of the threat or the allegation of denial of telephone use.501
Respondent also denies that the threat or the refusal to allow
Ruiz to use the telephone occurred. Ultimately, I find and con-
clude that the threat and the denial of telephone use occurred,
that the allegations are supported by timely filed charges, and
that Respondent violated the Act by this conduct.
Threat to Ruiz—The General Counsel’s Evidence
Ruiz testified that since the organizational campaign began
in March 1993, he has maintained up to 10 “Union-Yes” stick-
ers on his hardhat while he worked; he further has inscribed
prounion slogans on his hardhat. Ruiz testified that on one oc-
casion when he had such stickers on his hardhat:

Well, I had a glass welding [shield] lens in my pocket,
and I didn’t want it to break in my pocket; I was en route
to bring it to my toolbox. And I walked past Keith Folse,
my foreman, and he asked me where I was going. And I
said, “I am going to bring this into my toolbox so it
doesn’t get broken.”
And he said, “No, no; just go back on your unit.”
And I said, “Why?”
And he said, “Man, just go back on your unit. You had
better watch your butt. You know they are out to get you.”
So, you know, with the urgency in his voice and every-
thing, I went back to my job site.

When asked when this occurred, Ruiz testified, “I think it was
November.” Based on this testimony by Ruiz, paragraph 9 of
the fourth complaint alleges that, in violation of Section 8(a)(1),
Respondent, by Folse, “[a]bout November 1993,” threatened
employees with unspecified reprisals.
The charge in Case 15–CA–12600, the only charge filed
specifically on behalf of Ruiz, was filed on May 11, 1994. If it
were proved that the exchange between Ruiz and Folse oc-
curred on or before November 11, 1993, the allegation of para-
graph 9 of the complaint would not be supported by that charge
because of the 6-month limitations period of Section 10(b) of
the Act. The limitations period is an affirmative defense; there-

501 I have disposed of Respondent’s contention about the lack of a
supporting charge for certain other 8(a)(1) allegations in sec. IV(A)(1)
of this decision. Respondent’s contention in regard to the alleged threat
to Ruiz, however, has more substance, and that contention is considered
here.
fore, if it is found that the event occurred, Respondent has the
burden of proving that it occurred outside the statute’s limita-
tions period. St. Mary’s Infant Home, 258 NLRB 1025 (1981).
On cross-examination, Ruiz was asked to be more specific
about the date of his exchange with Folse that he placed in
November. Ruiz testified that he could not remember whether
the exchange was in early or late November 1993, but, “It was
sometime in November. It was cool and rainy, and it just—you
know, that month stuck with me.” (Ruiz testified that he was
sure that it did not occur in October.) Ruiz acknowledged that
in his May 16, 1994 pretrial affidavit he stated that “Keith
Folse has said to me on several occasions throughout the year
that I had better watch my butt because they are out to fire me,”
and Ruiz acknowledged that the affidavit does not state when
any of those “several occasions” were. Ruiz insisted that the
occasion to which he referred was in November because it was
in that month that he bought the glass welding-shield lens from
the company safety store and the incident happened on the
“same day.” Ruiz went to lengths in his testimony to explain
that, when he was threatened by Folse, he was concerned about
getting the newly purchased lens secured before he received a
warning notice for a safety violation (carrying around a piece of
unsecured glass). Ruiz acknowledged that purchases from the
company safety store can be made only through payroll deduc-
tions.
Threat to Ruiz—Respondent’s Evidence
Neal Robert (vol. 87) operates the company safety store.
Robert testified that he searched Respondent’s records for Oc-
tober and November 1993, and he found only one purchase by
Ruiz. That was a purchase of some work gloves on November
15. Robert further testified that the store sells two types of
lenses, a plain green-filter lens that sells for $1 and a mirror-
faced lens that sells for about $32. Robert testified that he per-
formed a computer search of his records; as well as finding no
purchases for Ruiz during October or November other than the
gloves, he found no purchases of a mirror lens by Ruiz during
1993. Robert was not asked if his search showed any purchase
by Ruiz of a green-filter lens during 1993.
Folse (vol. 87), who admitted seeing Ruiz wear “Union-Yes”
stickers on his clothing and wear prounion T-shirts, was asked
and he testified:

Q. Do you recall when, if ever, Mr. Ruiz needed to
purchase something from the safety store?
A. Not directly.
Q. In November 1993 did you have any conversations
with Robbie Ruiz about a welding lens?
A. Not that I recall.

Folse denied that he ever told Ruiz that someone in manage-
ment was trying to fire him. Folse testified that Ruiz had
“bragged” about getting two warning notices when he was
loaned to another department and worked for other supervisors.
Folse was further asked and he testified:

Q. Did you ever tell Mr. Ruiz to watch his butt?
A. I told him that he had a lot of citations, that it is
time for him to start slowing down a little bit and take it
easy.
Q. Did you ever use the words watch your butt?
A. I don’t know the exact words.

When asked why he admonished Ruiz to “slow down,” Folse
replied that Ruiz then had two warning notices and: “Well, for
AVONDALE INDUSTRIES

1411
one reason, both citations were grounds for termination if we
wanted to terminate him, so I mean, he needed to be warned
that he was running a thin line, you know.” Folse testified that
he thought the warning notices from the other supervisors had
been for wasting time.
On cross-examination, Folse testified that he had admon-
ished Ruiz “a couple of times” about “watching himself” be-
cause he had gotten too many warning notices, but he could
remember the dates of neither of those occasions. When asked
why he had given these admonishments to Ruiz, Folse testified:
“Because after three citations an employee can be terminated,
and he had more than three citations. . . . He had over three.”
Folse testified that he thought that, as well as two warning no-
tices for wasting time that were written by foremen of other
departments, he had also written “one or two” safety warning
notices for Ruiz.
The parties stipulated that Ruiz received no warning notices
in 1992. On June 2, 1993, Folse issued Ruiz a warning notice
for not wearing long sleeves as required by Respondent’s safety
regulations for employees who do welding. The parties stipu-
lated that Ruiz was issued no other warning notices in 1993. On
May 6, 1994, Ruiz was issued a warning notice by another
supervisor for wasting time. On May 19, 1994, Folse issued
Ruiz a warning notice for not wearing a safety belt. On July 14,
Ruiz was issued another warning notice for wasting time by
another supervisor. Folse admitted that this was the warning
notice that Ruiz had bragged about. The parties stipulated that
Ruiz was issued no other warning notices in 1994.
Threat to Ruiz—Conclusions
I find that Folse did threaten Ruiz, and he did so at some
point between March and September 30, 1993. I further find
that the allegation of the complaint is supported by a timely
filed charges, although not the charge filed on behalf of Ruiz.
Ruiz testified that, when he was attempting to secure his
glass welding-shield lens, Folse told him to “watch [his] butt”
because “You know they are out to get you.” Folse testified that
he could not recall using the phrase “watch your butt,” but he
denied telling Ruiz that management was “out to get” him. If
Ruiz were prone to lie about the matter, he could have done a
much better job by adding a word or phrase to the threat that
expressly referred to the Union. (At least, if he had wanted to
lie, Ruiz could have created some negative mention of the Un-
ion by Folse at some other time.) Moreover, in his quoted eva-
siveness when questioned about the lens incident, Folse was
incredible. I credit Ruiz.
The Union was not mentioned by Folse, but Ruiz was wear-
ing prounion insignia at the time. The wearing of prounion
insignia has been found to be the express basis of many threats
in this decision, and there is no other feasible explanation for
Folse’s admonition to Ruiz. Folse testified that he admonished
Ruiz to watch himself because Ruiz had received multiple
warning notices, but he was entirely vague and forgetful about
when he did so. Certainly, to the extent that it attempted to
convey the impression that in 1993 he would have admonished
Ruiz to watch himself because of his multiple warning notices,
Folse’s testimony proved to be false; Ruiz had received no
warning notices in 1992, and he received only one warning
notice in 1993 (from Folse). At another point Folse testified
that his admonition came after Ruiz bragged about getting a
warning notice from another supervisor; on cross-examination,
however, Folse admitted that Ruiz’ bragging must have oc-
curred after a 1994 warning notice. Therefore, the “bragging”
premise for Folse’s admonishment to Ruiz could not apply to
any 1993 threat. That is, there is no legitimate explanation for
Folse’s telling Ruiz in 1993, as I find that he did, to “watch
[his] butt” because other supervisors were “out to get” him. The
only questions are when in 1993 the threat occurred and
whether the complaint’s allegation is supported by a timely
filed charge.
The threat did not occur in December 1993, a month that was
entirely within the 10(b) limitations period for Ruiz’ May 11,
1994 charge. The General Counsel apparently possessed no
inkling that the lens incident, and threat, occurred in December;
if he had, he would have called Ruiz in rebuttal and had Ruiz
produce his pay stubs that reflected a payroll deduction in that
month. (Alternatively, the General Counsel would have sub-
poenaed relevant records of Respondent.)
The threat did not occur in November 1993, a month that
would have been at least partially within the limitations period
of Ruiz’ charge. When he was asked when it was that Folse
threatened him, Ruiz testified,”I think it was November.” Ruiz
appeared to be only guessing at the date. In addition, on cross-
examination, Ruiz insisted that the threat occurred on the same
day that he purchased the welding-shield lens. Respondent,
however, proved that the only purchase that Ruiz made in Oc-
tober or November 1993 was Ruiz’ November 15 purchase of
some work gloves. Respondent thereby eroded the premise of
Ruiz’ guess, and Respondent thereby proved that the event
happened before November, or even October 1993.
Respondent did not, however, prove that the threat did not
occur in 1993 at some time on or before September 30. Ruiz
testified that the threat occurred when he was attempting to take
the time to secure a welding-shield lens that he had bought that
day. Respondent proved that Ruiz did not purchase an expen-
sive ($32) mirror lens at the company safety store at any time in
1993. Ruiz, however, did not testify that the lens that he pur-
chased was a mirror lens; moreover, Folse testified that tack-
welders, such as Ruiz, did not usually purchase mirror lenses.
Respondent’s proof, therefore, did not negate Ruiz’ testimony
that he bought some welding-shield lens in 1993 (and, accord-
ing to Folse’s testimony, it was probably a cheap ($1) green-
filter lens). Nor does Respondent’s proof negate Ruiz’ testi-
mony that, on the day that he bought some welding-shield lens,
he was threatened.
I credit Ruiz’ testimony that he was wearing “Union-Yes”
stickers at the time of the threat which, as I have found above,
occurred before October. The organizational campaign began,
and the employees started wearing prounion insignia, in March
1993. Therefore, as I further find, the threat occurred between
March and September 30, 1993. Because all dates before Octo-
ber 1993 were more than six months before May 11, 1994,
paragraph 9 of the complaint is not supported by Ruiz’ charge
of that date. Therefore the allegation must be dismissed if Ruiz’
charge is the only charge to be considered. Ruiz’ charge, how-
ever, is not the only charge to be considered.
As discussed in the consideration of the alleged plant-closure
threat by Respondent’s president, Bossier, the first charge in
this matter was the charge filed on June 7, 1993, on behalf of
alleged discriminatee James (Danny) Cox. All allegations of
Respondent’s unlawful expressions of animus toward the em-
ployees’ prounion activities that occurred within 6 months be-
fore that date, the proof of which would tend to support Cox’s
charge, are supported by that charge. Certainly, a threat against
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1412
wearing prounion insignia would tend to support Cox’s charge.
(The fact that Respondent ultimately defended against the Cox
charge and complaint allegations is irrelevant.) In addition,
under NLRB v. Fant Milling Co., 360 U.S. 301 (1959), the Cox
charge supports all subsequent complaint allegations that would
tend to prove the merit of that charge. Finally, any number of
the discrimination charges that were filed after Cox’s charge
also support the allegations of Folse’s threat; for example, the
charge in Case 15–CA–12225, which was filed on behalf of
discriminatee Charles Fleming on August 31, 1993, would
support any allegation of such unlawful expressions of animus
as Folse’s threat that occurred on or after March 1, 1993. The
allegation of paragraph 9 of the fourth complaint, therefore, is
supported by a timely filed charge.
I therefore find and conclude that, in violation of Section
8(a)(1), Respondent, by Folse, at some time between March
and September 30, 1993, threatened an employee with unspeci-
fied reprisals because he was wearing prounion insignia.
Ruiz’ Being Denied use of a Telephone—the General Coun-
sel’s Evidence
Ruiz testified that about 2:30 p.m. on May 11, 1994, he
asked Folse if he could be momentarily excused from working
on a platen to make a personal telephone call. After obtaining
permission from Folse, he went to use a telephone that was near
his work area and made the call. The telephone that he used,
Ruiz testified, was about 60 feet from a building where supervi-
sors congregated; the building had a large window from which
anyone inside would have an unobstructed view of the tele-
phone that Ruiz used.
Ruiz testified that about 11 a.m. on May 12, he again asked
Folse for permission to use the telephone. According to Ruiz:

Well, I asked Keith [Folse] if I could use the phone at
about 2:30 p.m, when I go on break, to make an important
phone call, and he said no, that he can’t let me go. And I
said, “Why?”
And he said the previous day, when I used the phone,
two bosses saw me on the phone and told Keith—
instructed Keith not to give me permission to use the
phone any more or I could get fired—they would fire me.
So I said, “Well, I have an important phone call to
make. Could I knock off early?”
He said, “Sure; I would rather see you knock off a lit-
tle early than get fired.” So I knocked off.

Ruiz acknowledged that Folse did not say who the “bosses”
were.
Ruiz’ Being Denied use of a Telephone—
Respondent’s Evidence
On direct examination, Folse testified that, until October
1993, David Zeringue was the superintendent of the shipfitting
department. Zeringue retired in October and, before then,
Zeringue told him that he had seen Ruiz talking on the tele-
phone “many times.” Zeringue told Folse to keep Ruiz in his
work area during working time. Folse further testified that he
then went to Ruiz and told him to secure a yard pass (“blue
pass”) when he wanted to leave his work area to use the tele-
phone (or for any other reason). Ruiz replied that he would.
Folse testified that before this occasion, Ruiz had never asked
for permission to leave the work area to use the telephone.
Folse further testified that, on several subsequent occasions
when Ruiz came to him and asked for a pass to use the tele-
phone, he gave it to Ruiz without any discussion. Folse testified
that he could not remember if Ruiz ever asked him for permis-
sion to use a telephone 3 hours later in the day.
On cross-examination Folse disclaimed all memory about
when it was that he told Ruiz to get a pass if he wanted to leave
the job to use the telephone; Folse admitted that he could not
even say if it occurred in 1993 or 1994, but he insisted that it
was only once because Ruiz thereafter complied with his in-
struction to get a pass before leaving the work area to use the
telephone.
Ruiz’ Being Denied use of a Telephone—Conclusions
Folse testified on direct examination that in 1993, before
Zeringue retired in October, Zeringue told him to keep Ruiz
working, rather than using the telephone. Folse testified that he
then instructed Ruiz to request a pass to use the telephone (and
that Ruiz thereafter did make such requests, and that he thereaf-
ter granted such requests). On cross-examination, however,
Folse admitted that he could not remember if his instruction to
Ruiz came in 1993 or 1994. If there had been any truth to
Folse’s testimony on direct examination, he would have at least
related the event to his instruction about Ruiz that came from
Zeringue. Folse was not credible on this point; moreover, I do
not believe that Ruiz constructed the event out of whole cloth. I
find that Respondent denied Ruiz the use of the telephone on
May 12, 1994.
Folse admitted that he saw Ruiz wearing prounion insignia
and prounion T-shirts. As I have concluded above, Ruiz, like so
many other employees, was threatened with discrimination for
wearing prounion insignia. The General Counsel has therefore
presented a prima facie case that Ruiz was unlawfully denied
the use of a telephone on May 12. Because Respondent denies
that its alleged action occurred, it has presented no defense for
that action. Therefore, unless there is no charge to support the
allegation, as Respondent further contends, a violation must be
found.
Again, the only charge on behalf of Ruiz was filed on May
11, the day before the denial of the telephone use. Moreover,
that charge alleged only the unlawful issuance of a warning
notice to Ruiz on May 6. Respondent contends that, because the
filing of the charge predated the denial of telephone use to
Ruiz, and because the charge alleged a different violative of-
fense (a warning notice, as opposed to a denial of telephone
use), the complaint’s allegation regarding the denial of tele-
phone use to Ruiz is not supported by that charge. I reject these
contentions. The charge was not a charge of unlawful denial of
telephone use, but it was a charge of unlawful discrimination
under Section 8(a)(3). Again, as the Supreme Court held in
Fant Milling, related unlawful acts that are committed after the
filing of a charge come within that charge. Therefore the fact
that the charge was filed one day before the alleged conduct
occurred does not vitiate the charge as a basis for the com-
plaint’s allegation. Moreover, in Waste Management of Santa
Clara Co., 308 NLRB 50 (1992), the Board held that, even
though allegations of a charge were dismissed, that charge sup-
ported other allegations of a complaint where the same subsec-
tion of the Act was invoked, the conduct alleged in the charge
and the conduct alleged in the complaint occurred in the “same
general time period,” and the theory of the complaint was the
same as that of the charge, that the employer was committing
unlawful acts of resistance to an organizational campaign. This
case meets all three criteria: the charge and the complaint both
AVONDALE INDUSTRIES

1413
allege violations of Section 8(a)(3); there is less than a week’s
difference in the dates of the warning notice and the denial of
the telephone use; and the theory of interference with the Un-
ion’s campaign is the same. The allegation of the complaint that
Respondent discriminated against Ruiz by denying him tele-
phone use on May 12 is therefore supported by a timely filed
charge.
Ruiz testified that, because permission to use the telephone
was denied to him on May 12, he was forced to leave work at
2:30 p.m. Respondent, of course, possessed Ruiz’ payroll re-
cords, but it did not dispute this testimony by Ruiz that he lost
one hour’s pay on May 12. By Respondent’s conduct, there-
fore, Ruiz was in effect suspended for the hour that he was
forced to miss to make the telephone call. I therefore find and
conclude that, by denying Ruiz telephone use, and suspending
Ruiz, on May 12, Respondent violated Section 8(a)(3).
b. Kenneth Patterson’s being denied a wage increase
Kenneth Patterson (vol. 54), a sheet-metal mechanic’s
helper, did not receive a wage increase about May 18, 1994.
The fourth complaint, at paragraph 29, alleges that Patterson
was on that date denied a wage increase in violation of Section
8(a)(3). The General Counsel contends that Respondent denied
an increase to Patterson because of his known union activities
and expressions of sympathy which included his wearing
prounion insignia. The General Counsel further alleges that, in
violation of Section 8(a)(1), Patterson was instructed to remove
prounion insignia from his clothing and Patterson was threat-
ened with loss of a wage increase because he had been wearing
prounion insignia. Respondent denies that the threat and in-
struction occurred. Respondent further answers that its supervi-
sors had no knowledge of any union activities or sympathies of
Patterson at any relevant time and that Patterson was not enti-
tled to a wage increase at the time claimed by the General
Counsel. Ultimately, I find and conclude that Respondent did
not unlawfully withhold a wage increase from Patterson.
Patterson worked as a sheet-metal mechanic’s helper under
the direct supervision of Foreman Nathan Howard. Patterson
testified that he wore a union T-shirt, and placed “Union-Yes”
stickers on his hardhat, for the first time, on May 6, the day of
the stockholders’ meeting that was conducted at Respondent’s
administration building. Patterson further testified that on May
13, he worked with employee David Thompson who was also
wearing a union T-shirt and “Union-Yes” stickers on his hard-
hat. According to Patterson:

Me and David was working up in the pilot house and
Nathan Howard come up and told us, “You need to throw
them Union shirts away and take them stickers off your
hardhats.” . . .
David asked him, did he [Howard] want him [Thomp-
son] to get him [Howard] a union shirt, and he [Howard]
got mad and walked away.

(Thompson did not testify.) Based on this testimony by Patter-
son, paragraph 13 of the fourth complaint alleges that, in viola-
tion of Section 8(a)(1), Respondent, by Howard: “[I]nstructed
its employees to remove union insignia from their clothing.”502

502 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV(A)(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charge of discrimination against Patterson, as well as
the charge in Case 15–CA–12171–1.
Patterson further testified that about May 18 Howard con-
ducted a safety meeting. At the end of the meeting Howard
asked if any employees had any questions. Several employees
asked about wage increases. Howard asked which among them
thought that they deserved a wage increase. Patterson re-
sponded to Howard that he deserved a wage increase because,
“I could do some sheet metal welding, I could read a blueprint,
do some of the pickup lists and do fitting.” Howard replied to
Patterson that he did not deserve a raise. (Patterson testified that
mechanics, not helpers, were paid to do fittings.) Patterson
further testified that later in the day:

As me, Thomas and Larry Rossier was coming on the
boat, Nathan Howard walked up and pulled me over to the
side. . . .
Nathan Howard told me the reason why I couldn’t get
no raise was because a man seen me with a union shirt on.
And I asked him, “That is the reason why I can’t get a
raise, because of the Union shirt?”
He said, “Yes.”
And I told him, “They don’t need for me to do any
more fitting then.” Then I walked away.

Based on this testimony by Patterson, paragraph 16 of the
fourth complaint alleges that, in violation of Section 8(a)(1),
Respondent, by Howard: “[I]nformed its employees that an
employee was not getting a wage increase because of his activi-
ties in support of the Union.”503
On direct examination, Howard (vol. 144) denied telling Pat-
terson to remove his prounion insignia, and he denied telling
Patterson that he would not receive a wage increase because he
had been seen wearing a prounion T-shirt. Further on direct
examination, Howard flatly denied that he ever saw Patterson
wearing a prounion sticker or T-shirt. On cross-examination,
however, Howard was asked the same questions, and Howard
then replied about Patterson that “[h]e may have” worn proun-
ion stickers and “[h]e may have” worn prounion T-shirts. How-
ard thereby retracted his direct examination’s unequivocal de-
nials about what he saw Patterson wear. In going through this
exercise, Howard demonstrated that he was not a reliable wit-
ness, at least about what he had said to Patterson. I credit Pat-
terson.
I find and conclude that, in violation of Section 8(a)(1), Re-
spondent, by Howard, on May 13, 1994, instructed its employ-
ees to remove union insignia from their clothing. I further find
and conclude that, in violation of Section 8(a)(1), Respondent,
by Howard, on May 18, threatened an employee that he would
not receive a wage increase because that employee had been
seen wearing prounion insignia.
Patterson further testified that later in 1994 other employees
in the sheet metal department received merit wage increases,
but he did not. Respondent, however, adduced evidence that
from January 1, 1994, through January 31, 1995, only four
merit wage increases were issued in the sheet metal depart-
mentto helpers such as Patterson. Patterson was one of these
four, but all of the wage increases were issued in order of sen-
iority and Patterson was the least senior of the four helpers who
received the wage increases. The General Counsel made no
attempt to rebut this evidence which I found credible and pro-
bative. On brief, the General Counsel argues that, because
Howard unlawfully threatened Patterson with a denial of wage

503 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1414
increase, the matter is proved. I disagree; a threat unlawfully to
withhold a wage increase fortifies a prima facie case of an
unlawful withholding, but it hardly creates a conclusive pre-
sumption. In this instance, Respondent has shown that it would
not have granted Patterson a wage increase during 1994 even in
the absence of his protected activities. Accordingly, I shall
recommend dismissal of that allegation of the complaint.
c. Respondent’s differing allowances for its employee—
witnesses at representation hearing
The second complaint alleges:

133. About January 7, 1994, Respondent discriminated
against the employees whose names are set forth below,
who were subpoenaed by the Respondent and who are
supporters of the Union, by paying them a lesser amount
than that paid to those employees who testified at the re-
quest of the Respondent and were not supporters of the
Union:

Harold DiMaggio Richard St. Blanc
Chester Green Ray Steward
Philip Perera Harry Thompson
Terry L. Perkins

(These seven individuals had served as observers at the June 25
Board election, and they will be referred to as “the observers.”)
The second complaint further alleges:

150. Respondent engaged in the conduct described
above in paragraph 133 because Respondent expected the
named employees to testify against its interests at a repre-
sentation hearing before the Board in Case No. 15–RC–
7767.

The complaint further alleges that, by this alleged conduct,
Respondent violated Section 8(a)(3) and (4) of the Act.
On day-9 of the hearing, the parties entered the following
stipulations:

1. “[A]bout January 7, 1994, in connection with the
post-election hearing in Avondale Industries, Inc., case
number 15–RC–7767, the Employer through its agents
served a subpoena ad testificandum on each of the below-
listed employees, each an employee within the meaning of
the Act, [and] each of whom the Union [had] advised
Avondale [at some point in time before the election]
would serve as an observer for the Union at the June 25,
1993, representation election at Avondale: [Names of the
seven observers are listed.]”
2. “[O]n January 7, 1994, the Employer personally
served subpoenas on the above-listed employees during
their respective hours of work at Avondale. The subpoenas
commanded the attendance of the above-listed individuals
at the post-election proceeding on January 18, 1994. With
their respective subpoenas, the alleged discriminatees each
received a check in the amount of $50.52 for their sub-
poena witness fee and anticipated transportation expense,
$40 and $10.52 respectively.”
3. “Due to a postponement of the hearing not caused
by the Employer on January 18, 1994, the above-listed in-
dividuals honored their respective subpoenas on January
19, 1994. After reporting to the hearing, the above-listed
individuals were released by approximately 10:30 a.m.
without testifying.”
4. “The hearing was located at [Regional Office ad-
dress], approximately 12 miles from the work location of
each of the employees at [Respondent’s address].”
5. “On January 19, 1994, the regular work shift times
for each of the above-listed employees was 7:00 a.m. to
3:30 p.m.”

On day-30 of trial, Respondent’s counsel represented that:

1. “In this [the representation] proceeding, Respondent
paid employees other than those subpoenaed their lost
wages.”
2. “Those who voluntarily appeared here were paid
their lost wages. Certain individuals, including the seven
individuals named in paragraph 133, but also including all
[other] individuals who are [had been] identified as union
observers to the Company, were subpoenaed [by Respon-
dent], as well as a number of other individuals who were
subpoenaed to attend this [the representation] proceeding.”
3. “For individuals who were subpoenaed [by Respon-
dent] and whose attendance was compelled by subpoena,
they were paid the regular witness fee, not their lost time.”
4. “They [the employees who were not subpoenaed]
punched off their regular number—signed off their regular
MCR and signed on a new MCR when they got in the
[Company] van to come down to the proceeding, and
when they got back to Avondale, they signed off [on] that
MCR.”
5. “For individuals who [were not subpoenaed and
who] did come [to the representation hearing], and who
were stuck here over the lunch period, rather than sending
them off into the city and hoping they were back in time to
testify, we provided them lunch.”
6. Counsel further conceded that, during the course of
the representation hearing (which lasted several months),
there were 150 of these nonsubpoenaed employees whom
it compensated for the wages that they lost in appearing
pursuant to Respondent’s requests.

Respondent’s subpoenas required the observers to appear at
the hearing at 10 a.m. on January 19. Three of those observers
testified for the General Counsel. Perera (vol. 10) testified that
he worked from 7 to 9 a.m. on January 19; he came to the Re-
gional Office where he was first met by a union organizer; he
was taken to meet a field examiner with whom he sat and gave
an affidavit for 2 hours; when he finished, the organizer told
him that the observers had been released and he could go home,
which is exactly what he did. Perera admitted that he could
have been back to the plant within 30 minutes after he left the
Regional Office. St. Blanc (vol. 9) admitted that he did not
attempt to go to work at his usual starting time of 7 a.m., work
as long as he could, and then go to the hearing (as Perera did).
Instead, St. Blanc went directly from his home to the hearing.
When he was released at 10:30 a.m., St. Blanc stayed in the
downtown New Orleans area for an hour or more, and then he
went back home (rather than go to the plant to finish his shift).
Green (vol. 35) made similar concessions. Except for Perera’s
working for 2 hours before coming to the representation hear-
ing, there is no evidence that any of the observers attempted to
come to work before they came to the hearing, and there is no
evidence that any of the observers attempted to return to work
after they were released.
Of the employees whom it called as witnesses, Respondent
provided transportation for those who had not served as union
AVONDALE INDUSTRIES

1415
observers at the Board election, and whom it had not subpoe-
naed, and it provided transportation expenses for the seven
observers whom it had subpoenaed; therefore, there is no evi-
dence of discrimination in regard to transportation allowances.
The issue lies in the differences in other moneys paid to the
representation-case witnesses, all of whom were Respondent’s.
Respondent called the employees who were not subpoenaed
“volunteers.” They may have come forward, but Respondent
did not have to transport them, and it did not have to pay them
their regular hourly wages for all the time that they were away
from the plant. By offering this compensation, or at least agree-
ing to pay it, Respondent in effect requested the employees to
appear and testify for it. That is, all of the witnesses concerned
here were Respondent’s witnesses, and the issue is whether it
was unlawful discrimination for Respondent to have paid its
witnesses who had not been union observers their full day’s
wages while paying its witnesses who had been observers only
the statutorily required witness fee of $40, which was less than
a full day’s wages.
On brief, the General Counsel cites Electric Research I, 187
NLRB 733 (1971). In that case, the Board found a violation of
Section 8(a)(4) where the employer denied a perfect attendance
award to employees who had appeared at a representation hear-
ing pursuant subpoenas that had been requested by a union.
Respondent, on the other hand, cites Electric Research II, 190
NLRB 778 (1971), which found no violation in the employer’s
paying its witnesses to a Board hearing their full wages for the
day while not paying the General Counsel’s witnesses any-
thing; the Board found no obligation of a party to “subsidize its
opponent.” To the same effect is Rexart Color & Chemical Co.,
246 NLRB 240 (1979), which is also cited by Respondent.
None of these cases is controlling here; each involves employ-
ers’ treatment of witnesses called by the opposing parties. All
of the witnesses involved in this case were, as I have noted,
Respondent’s witnesses.504 The issue, therefore, is whether
Respondent unlawfully discriminated among its witnesses.
As Respondent argues, on January 19, with the exception of
Perera’s working for 2 hours before the representation hearing
convened, the seven observers chose not to work before going
to the hearing and after they were released. It is also true that,
as well as paying the seven observers the statutory fee ($40) for
the one-half hour that it required them to be at the representa-
tion hearing, Respondent did nothing to prevent those employ-
ees from earning their regular wages for the remainder of the
day. It is further possible that, if the seven alleged discrimina-
tees had spent no more time than necessary away from the
plant, they could well have done better monetarily because they
were subpoenaed. That is, for the day, they could have cleared
$40 plus their wages for at least 5 hours if: (a) they had worked
from 7 to 9 a.m.; (b) they had gotten to the hearing by 10 a.m.;
(c) they had taken the modest efforts that would have been

504 This factor, among others, also distinguishes Confort & Co., 275
NLRB 560 (1985), which is also cited by Respondent. In that case, the
employer denied holiday pay to an employee who had finished testify-
ing but stayed at a hearing to assist the General Counsel on the day
before Thanksgiving. Holding the subpoena “irrelevant,” the Board
found no violation because the employer acted on a good-faith interpre-
tation of a collective-bargaining agreement, and the Board further
found that the employer acted upon previously existing policies about
which it adduced probative, credible evidence. (On brief, Respondent
represents the existence of some such policies, but it had adduced no
evidence of their existence at trial.)
required to return to the plant within 2 hours after they were
released at 10:30 a.m.; and (d) they had worked from 12:30 to
3:30 p.m.505
Nevertheless, Respondent caused two groups of employees
to be at the representation hearing; to wit: (1) a group of seven
employees who had been observers at the Board election, and
(2) a group of 150 employees who had not been observers.
Respondent paid the observers the statutory minimum of $40; it
paid the members of the group who had not been observers a
full-day’s pay, which amounts were undoubtedly greater than
$40. Respondent argues that the observers could have returned
to work, and that is true. For that circumstance to be a factor
that defeats a charge of discrimination, however, Respondent
would have had to show that the 150 employees to whom it
paid a day’s wages worked before and after they came to the
hearing.506 There was no such showing. Respondent’s represen-
tations that the nonobservers were on their regular MCRs when
they were not at the hearing (or in transit) is not evidence of
that fact,507 and Respondent’s representations are certainly not
evidence that they actually did any work before or after they
came to the hearing.
In summary, the difference in Respondent’s treatment of the
two groups of employees whom it caused to be at the represen-
tation hearing was based on the prior union activity of one of
the groups, service as union observers. This was discrimination
and it was discrimination based on prior union activity.
I therefore find and conclude that, by discriminating against
the seven above-named employees in regard to pay for a day
that the employees were compelled by Respondent to appear at
a Board representation hearing because those employees had
served as union observers at the June 25, 1993 Board election,
Respondent violated Section 8(a)(3) of the Act.508 Finally, Re-
spondent used the subpoenas as an excuse for its discrimination
against the seven union election observers whom it required to
appear at the representation hearing, but its treatment of those
employees was not caused by their appearance at the hearing;
therefore, I shall recommend dismissal of the 8(a)(4) allegation
of the complaint.
12. Employees transferred to the Westwego yard, then warned
or discharged for various reasons
As mentioned in the introductory section of this decision,
Respondent’s Westwego yard is about 3 miles down-river from
the main yard. Located at the Westwego yard is Respondent’s
small boat division where Respondent builds barges and small
boats such as tour boats and casino gambling boats. The vice
president of Respondent who is in charge of the Westwego
operation is Barry Heaps. Immediately subordinate to Heaps at
Westwego is Ronald Johnson, production superintendent. Gen-
eral Foremen Robert Luttrel and Devon Barber, and several
foremen, report to Johnson and Heaps.

505 St. Blanc testified that he was making $11.75 per hour. The $40
witness fee more than covered the pay for the 3 hours that the subpoena
required him to miss work.
506 A different conclusion would require that the General Counsel
prove the negative proposition that all employee-witnesses to whom
Respondent paid a full day’s wages did not work full days.
507 Respondent did not produce any such MCRs.
508 At the compliance stage of this proceeding, the statutory fees that
the observers received, of course, are to be deducted from gross back-
pay.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1416
Before the events of this case, Respondent’s last contract to
build a small boat at Westwego was completed early in 1993.
By June, the employee complement at Westwego was down to
about 20 employees. On July 8, 1993, Respondent obtained a
contract to build a casino gambling boat at Westwego. During
July and August Respondent transferred 30 employees from the
main yard to Westwego to begin preparing the yard for con-
struction and to start the initial building phases of the contract.
The complaints allege that, in violation of Section 8(a)(3), 5
of the 30 employees who were transferred to Westwego in 1993
were selected because of their protected activities at the main
yard; to wit: Edward Armstrong, Joseph Melton, Luis Gon-
zalez, Walter Brown, and Charles Fleming. Armstrong, Melton,
and Gonzalez were pipefitters or pipe-testers at the main yard;
Brown and Fleming were welders. Armstrong, Melton, Brown,
and Fleming were discharged while they were working at
Westwego; Gonzalez was issued a warning notice. The com-
plaints further allege that by discharging Armstrong, Melton,
Brown, and Fleming, and that by issuing the warning notice to
Gonzalez, Respondent violated Section 8(a)(3) of the Act. Re-
spondent answers that all 30 main yard employees were se-
lected for transfer to Westwego because of business necessities;
Respondent further answers that Armstrong was selected for
transfer for the additional reason that he had a poor disciplinary
record. Finally, Respondent contends that Gonzalez was
warned and that the other four alleged discriminatees were
discharged solely because of their misconduct. The General
Counsel replies that the business-necessity defense is a pretext
as shown by the fact that none of the five alleged discriminatees
were used at Westwego for the skills that they possessed; in-
stead they were given menial jobs at Westwego. The General
Counsel further replies that none of the employees engaged in
the misconduct which Respondent attributes to them; alterna-
tively, the General Counsel replies that the five alleged dis-
criminatees were disparately treated because other employees
engaged in similar conduct but they were not similarly disci-
plined or discharged. Ultimately, I find and conclude that: (1)
Armstrong, Melton, Gonzalez, and Brown were unlawfully
transferred to Westwego; (2) Fleming was not unlawfully trans-
ferred to Westwego; (3) Armstrong, Melton, and Fleming were
unlawfully discharged; (4) Brown was not unlawfully dis-
charged; and (5) Gonzalez was not unlawfully issued a warning
notice.
(Alleged discriminatee Charles Kent was also transferred to
Westwego and thereafter discharged; Kent, however, was not
transferred to Westwego until 1994, and his transfer is not al-
leged as a violation of the Act. Kent’s case, however, does
involve some of the same supervisors as those who appear in
the cases of Armstrong, et al., and it is placed at the end of this
section of the decision.)
a. Edward Armstrong
Edward Armstrong (vols. 4, 5, 35), a pipefitter, was trans-
ferred from the main yard to the Westwego yard on July 30,
1993, and on September 13 Armstrong was discharged. Para-
graph 110 of the second complaint and paragraph 27 of the first
complaint allege, respectively, that by transferring and dis-
charging Armstrong Respondent violated Section 8(a)(3). The
General Counsel contends that Respondent transferred and
discharged Armstrong because of his known union activities
and expressions of sympathy which included Armstrong’s
wearing prounion insignia, Armstrong’s displaying a prounion
sign during a plantwide employer campaign meeting conducted
by Respondent’s chief executive, Albert Bossier, and Arm-
strong’s appearing on a television newscast to speak in favor of
the Union. The complaint further alleges that, in violation of
Section 8(a)(1), Armstrong was specifically threatened with
transfer and discharge because of his union activities. The
complaint further alleges that Armstrong, Melton, Gonzalez,
and other employees who were transferred to Westwego were
unlawfully threatened by a Westwego supervisor’s statement
that the transferees would not have been transferred had it not
been for their prounion sympathies. Respondent denies that the
alleged threats occurred. Although Respondent admits that
some of its supervisors knew of Armstrong’s prounion sympa-
thies, it further answers that Armstrong was selected for trans-
fer solely because of business necessities and a poor discipli-
nary record. Respondent further answers that Armstrong was
discharged solely because he intentionally engaged in the
safety-rules violation of wearing an unauthorized faceshield
while welding, and Respondent contends that Armstrong did so
at a time when he had been issued several other warning no-
tices, including specifically a recent final warning notice for
safety violations. The General Counsel replies that the busi-
ness-necessity defense for Armstrong’s transfer was a pretext
as shown by the fact that Armstrong was never used as a pipe-
fitter at Westwego. The General Counsel further answers that
the welding-shield defense is a pretext because Armstrong, and
other welders, had previously been allowed to use “unauthor-
ized” shields with impunity. Ultimately, I find and conclude
that Armstrong was both transferred and discharged in violation
of Section 8(a)(3).
(1) Armstrong’s pretransfer conduct and the alleged threats
to him
As noted early in this decision, Albert Bossier, Respondent’s
president, gave several preelection speeches to yard-wide gath-
erings of employees in the area outside the Shot House. Arm-
strong testified that he brought a sign to Bossier’s June 21
meeting. The sign was made of cardboard; it was about 2 feet
by 3 feet; further according to Armstrong, the sign said: “Vote
Yes Union.” Armstrong further testified that he held the sign
above his head during the entirety of the 30-minute meeting.
Armstrong testified that after the meeting, he folded the sign
and placed it into his clothing. As he left the meeting and
walked toward his work area, he was followed by two men
whom he recognized as electrical department supervisors who
were speaking into walkie-talkies. When he got to his work
area at wet dock-3, he saw Electrical Department Assistant
Superintendent Gerry Gerdes and Electrical Department Gen-
eral Foreman Kenny Danos, as well as the two men with the
walkie-talkies. The latter two men began pointing to Armstrong
and speaking to Gerdes and Danos. When he got to a materials
cage where the pipefitters stored their tools, Armstrong began
collecting what he needed to get back to work. He looked up
and saw Danos and Gerdes watching him. As he left the mate-
rials cage area, he turned and saw Danos and Gerdes going
through his box of tools. By that time, further according to
Armstrong, Tate LeFort, Armstrong’s foreman, had also come
to the area. As Armstrong walked by LeFort, he heard Gerdes
ask LeFort what Armstrong’s name and badge number were;
LeFort told Gerdes.
Armstrong further testified that later on June 21 LeFort
called him to his office. Present also were Charles Knowles, a
AVONDALE INDUSTRIES

1417
pipefitter, and Raymond Oliveri, leadman for LeFort. Accord-
ing to Armstrong:

My foreman [LeFort] had called me up there, and—to
inform me that he had been to a meeting. Management had
called him to a meeting, and he informed me that all fore-
mans involved in the incident with the “Vote Yes” sign
were at this meeting, along with several members of man-
agement. He didn’t go into detail on their names.

And he informed [me] that they had had a meeting and
had come to the conclusion that they could do nothing to
me directly for holding up this sign, but that they wanted
me out of their shipyard.

Armstrong testified that he did not respond to LeFort.
Knowles did not testify. Leadman Oliveri was called as a
witness by the General Counsel.509 Oliveri (vol. 7) testified that
Armstrong’s sign said, “Vote Onion,” not “Vote Union,” and
that he only saw Armstrong showing the sign to a few people,
not holding it above his head.510 Oliveri testified that, after
Bossier’s meeting, “I seen Ed running around the buildings, and
the electrician foremen chasing him.” Oliveri also testified that
Gerdes asked him who Armstrong was and who Armstrong’s
foreman was. Oliveri told him. Further, Oliveri testified that,
later on June 21, when Armstrong was not present, LeFort told
him that he had attended a meeting with higher management;
according to Oliveri:

He [LeFort] came back from the meeting and told me
that he had got his ass jumped because he couldn’t control
his people. . . . He said [Production Vice President Mi-
chael] Simpson is the one that jumped him. . . . He said he
[Simpson] jumped him because he couldn’t control his
people.
Well, later on, about 2:00 o’clock, Ed Armstrong had
come in to check on something, and that is when [LeFort]
told him what had went on. And he [LeFort] told him
[Armstrong] that they [Simpson, et al.] told him they
wanted him out, out of the yard. And he [LeFort] said he
wasn’t going to fire him, but he said he [Armstrong]
would be lucky to stay there 60 days if he didn’t watch
himself, that people were going to be looking out for him.
He done marked himself.

Armstrong had not testified that, on June 21, LeFort said that
Armstrong might be out of the yard in “60 days.” As will be
seen, however, Armstrong did testify that LeFort made such a
statement on June 23, at a time that Oliveri was also present.
On June 22, further according to Armstrong, as he and
Knowles waited in LeFort’s office to sign out for the day:

My foreman, Tate LeFort, had walked up on us to give
us a time sheet to sign out with. And as he walked up, he
noticed I had “Vote Yes” stickers on my hardhat. And he
turned to me and said, “Ed, if you don’t remove the “Vote

509 Leadman Raymond Oliveri is the brother of pipefitting Foreman
Ronald Oliveri. Ronald testified for Respondent on certain other issues
that are raised in Armstrong’s case. At various points the transcript
misspells “Oliveri” as “Olivera,” and it is accordingly corrected.
510 Armstrong was recalled much later in the hearing by the General
Counsel; he was not asked then (or in rebuttal) about this testimony by
Oliveri, and, for possible purposes of review, I find that the sign said,
“Vote Onion.” As will be discussed, however, all who saw the sign, or
heard of it, considered it to be a prounion sign.
Yes” stickers from your hardhat, you are going to cause
me to have to make you lose your job.” . . .
I didn’t respond anything.

In Respondent’s case, LeFort testified that Armstrong had
placed prounion insignia on his hardhat at the first of the organ-
izational campaign in March. LeFort further testified that he
told all members of his crew that they should not cover up the
“6” on their hardhats (which designates the pipe department)
with the prounion stickers, or anything else, but he denied that
he told Armstrong that he could be discharged for having such
stickers on his hardhat. Armstrong gave no indication of why
LeFort would have “noticed” the stickers on June 22.
On June 23, at lunchtime, camera crews from a local televi-
sion station came to a gate at the main yard. Many employees
and supervisors exit that gate at lunchtime to buy food at an
establishment across the road. Armstrong testified that, as he
left the gate, he saw the camera crew completing an interview
with Pipe Department Foreman Ronald Oliveri (again, brother
of Leadman Raymond Oliveri). Armstrong testified that the
camera crew then stopped him because he was wearing proun-
ion stickers on his hardhat. The television crew asked him for
comments, and Armstrong was recorded making comments
favoring the Union. While Armstrong was being interviewed,
Oliveri stood within a few feet of Armstrong. (During that eve-
ning’s news program, when Armstrong’s image appeared on
screen, so did his name and “Pipe Department.” Pipe Depart-
ment General Foreman John Whittington admitted seeing Arm-
strong on that broadcast.)
Armstrong testified that at the end of the June 23 shift he
went to LeFort’s office to sign out for the day. Leadman Oliveri
and Knowles were there as well as LeFort. According to Arm-
strong:

Mr. LeFort, as I walked into his office, said, “Ed, I will
make a bet with you.” And I just waited for a minute. And
he said, “I will give you 60 days; I bet you [that] you will
be gone in 60 days. They don’t care if you collect unem-
ployment or not; they just want you out of their yard.”

Leadman Oliveri did not testify that LeFort made a “60-day”
threat other than on June 21.
Based on Armstrong’s and Oliveri’s testimony, the first
complaint alleges the following:

21. About June 21, 1993, Respondent, by Tate LeFort
at its facility, threatened to remove an employee from the
main shipyard because he had aided or supported the Un-
ion.

. . . .

23. About June 22, 1993, Respondent, by Tate LeFort
at its facility, threatened its employees with discharge if
they continued to wear “Vote Yes” stickers on their hard-
hats.
24. About June 23, 1993, Respondent, by Tate LeFort
at the facility, threatened its employees with discharge be-
cause they had aided or assisted the Union.

On July 13, Foreman Ronald Oliveri issued a warning notice
to Armstrong for intentionally unsafe conduct. The issuance of
that warning notice is not alleged as a violation of the Act, but
the warning notice is an important part of Respondent’s defense
for Armstrong’s ultimate discharge, and the circumstances
surrounding its issuance will be discussed in detail below. The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1418
General Counsel, however, offered the July 13 warning notice
in his case because of what Armstrong wrote in the “Employee
Comment” section of the warning notice when it was issued to
him. In his comment, after claiming that he had done nothing
wrong intentionally, Armstrong wrote:

This is just another instance where, because I am prounion,
management is trying to do anything they can to “get me out
of this yard.”

The quotation marks are original; that is, Armstrong, himself,
placed the last six words of his comment on the warning notice
in quotation marks. The General Counsel introduced the warn-
ing notice, with Armstrong’s quotation of someone else’s
words, as corroboration for Armstrong’s testimony that LeFort
had told him that management wanted him “out of their ship-
yard.”
Armstrong’s Pretransfer Conduct and the Alleged Threats to
Him—Respondent’s Evidence
LeFort (vol. 143) testified that Armstrong regularly took pas-
souts on Fridays and was regularly absent on Mondays, but,
when he did appear for work, he was an excellent pipefitter.
(LeFort acknowledged that he never issued a warning notice to
Armstrong for his attendance problems.) LeFort testified that
during the morning of June 21, shortly before Bossier’s speech,
he entered a materials cage in a work area. As he did so, Arm-
strong folded a piece of cardboard into three sections, placed it
under his arm and started walking out of the cage. LeFort asked
Armstrong what he had; Armstrong replied, “Nothing,” and he
continued walking. LeFort further testified that as Armstrong
hurriedly left the cage, he left on a desk a mutilated box that
had been made of the same type of cardboard as the piece of
cardboard that Armstrong had under his arm. Also on the desk,
according to LeFort, was a felt-tip marking pen, the cap of
which was off.
LeFort testified that when it was time for the Bossier speech
he and his crew walked together to the Shot House area. LeFort
stood about 10 feet from Armstrong during the speech. Accord-
ing to LeFort:

He [Armstrong] had a piece of cardboard about two
foot long, about a foot wide, and it was folded in three.
And he carried it, and during the speech he would flash it
like this, like somebody with a trench coat that had—you
know, a flasher would flash. And it said, “Vote Onion” on
the sign—not “union,” but “onion”; that is what he had
written on there. And he would flash it like that periodi-
cally.
It [the sign] was something put together probably in
maybe two minutes. Real makeshift.

LeFort further testified that Armstrong never held the sign
above his head during the speech. LeFort did testify that, as he
and the rest of his crew walked back to the work area, Arm-
strong did hold the sign above his head.
LeFort testified that he did not see Gerdes or anyone else fol-
lowing Armstrong back to the work area at wet dock-3. LeFort
acknowledged, however, that when he did get to the work area,
he was met by Gerdes who “asked me who the man was with
the sign.” LeFort testified that he and Gerdes were near the
pipefitters’ materials cage at the time, but he did not see
Gerdes, or anyone else from the electrical department, go into
the cage at the time.
LeFort further testified that a few minutes after Gerdes left
the area he received a telephone call from Pipe Department
Superintendent Frank Fradella. According to LeFort:

[Fradella] asked me if one of my men had made a sign
on Company time. And I said I didn’t know. I said, “I
didn’t see him make the sign, but I walked in right when
he was folding up the sign.”
He said, “Well, I want you to get the man’s personnel
record and meet me by Mr. Simpson’s office.”

LeFort secured Armstrong’s file and immediately went to
Simpson’s office where he met Fradella. When he and Fradella
went into Simpson’s office, Simpson’s subordinate vice presi-
dent in charge of the pipe department, Ken Genter, was also
there. According to LeFort, Simpson “asked me if the man
came to work with the sign or if he had made the sign on his
time, on Company time.” LeFort told Simpson what he had
seen that morning in the materials cage. LeFort testified that he
told Simpson that, although he did not see the lettering on the
sign at the time, “I knew he had made the sign.”
Further according to LeFort, Simpson then asked to see
Armstrong’s personnel file. Although warning notices are
counted against employees for only 12 months, as discussed in
the introductory section of this decision and in the cases of
several other alleged discriminatees, Armstrong’s file contained
warning notices dating all the way back to 1987 when Arm-
strong was first employed by Respondent. Those warning no-
tices that had been issued in the 12-month period immediately
prior to June 21 were:

1. On October 6, 1992, Armstrong was issued a warn-
ing notice for a violation of the Avondale Employees’
Guide’s General Offense-12 (“Violation of Company
Safety Rules and Regulations through carelessness”). The
text of the warning notice is: “Not wearing hardhat in pro-
duction area. Any further violation of Company rules will
result in termination.”
2. Also on October 6, 1992, Armstrong was issued a
warning notice under General Offense-4 (“Wasting time,
loitering or leaving the working place without permis-
sion”). The text of the warning notice is: “Going to lunch
early.”
3. On March 3, 1993, Armstrong was issued another
warning notice under General Offense-4. The text of the
warning notice is: “Employee was not in his work area; he
was loitering and not doing job assigned.”
4. On May 23, 1993, Armstrong was issued a warning
notice for “Excessive absences and pass-outs.”

Further according to LeFort:

Mr. Simpson took the file and he paged through it,
looked at it, then he closed the file, and he threw it on the
desk. And he said, “This man has entirely too many viola-
tions. There won’t be any more violations [warning no-
tices] written on this man; if this man violates any more
Company policy, I want you to terminate him.”

LeFort further testified that, at some point during the meeting,
Simpson asked him why Armstrong “was still working in the
shipyard.” LeFort testified that:

And I told him [Simpson] that he [Armstrong] was a good
man when he worked. And when he worked, he was a good
guy. He just liked to take off every Friday early and miss
AVONDALE INDUSTRIES

1419
every Monday, and if you would check his record, you would
see that. But when he worked, he was a good worker. He
really was.

LeFort testified that he then left Simpson’s office.
LeFort did not testify that Simpson, at any time during the
June 21 meeting in his office, said anything to him by way of
admonishment about allowing Armstrong to make a “Vote
Onion” sign, or any sign, on working time. LeFort, however,
testified that, when he left Simpson’s office and returned to his
office, he was met by Leadman Oliveri. He told Oliveri, “I got
chewed out because Mr. Simpson thought Ed had made the sign
on Company time.” LeFort denied telling Oliveri that he had
been chewed out because he “couldn’t control his people,” as
Oliveri had testified. LeFort testified that Armstrong then en-
tered his office and:

He [Armstrong] asked me if he was going to be fired
for having a sign at the Union meeting. . . .
I told him no, that we weren’t going to do him nothing
for the sign at the Union meeting. But I told him that I
couldn’t write him any more citations because he had ex-
cessive violations in his file, and that if he violated any
more company policies I was going to have to terminate
him.

LeFort testified that nothing else was said during that meeting
in his office. LeFort denied then telling Armstrong, or ever
telling Armstrong, that some members of management wanted
him out of the yard, that he would be lucky to stay 60 days, that
he had “marked” himself, or that upper management wanted
him discharged. At no point, however, did LeFort testify that he
told Armstrong that Armstrong was suspected of having made
the prounion sign on working time.
Simpson testified (vol. 139) that after the Bossier speech of
June 21, when he and his secretary returned to his office, “She
[the secretary] asked had I noticed the individual going through
the crowd with a sign, and I said, “No. I said, Who was it?”
And she said she didn’t know but she thought it was a pipefitter
[by his green hardhat].” Simpson testified that his secretary did
not tell him what the sign said, or how big it was, and he did
not ask. Ultimately, however, Simpson acknowledged that, “I
inferred that it was something in favor of the Union.” Simpson
testified that he was concerned solely because, as Simpson
phrased it: “How does a person who is working in the shipyard
get a chance to make a sign?” Simpson testified that he called
Fradella. According to Simpson, “I asked if he had seen a pipe-
fitter carrying a sign, and I would like to know who it is. And
as I recall, he had the information; he was able to identify the
individual.” Simpson told Fradella to bring the employee’s
foreman to his office. When Fradella, LeFort and Genter as-
sembled in his office, he asked LeFort: “Where did this guy get
this sign? How do you get a sign like that on Company time?”
Simpson testified that LeFort replied, “I don’t know.” (That is,
Simpson did not testify, as did LeFort, and as Fradella did also,
that LeFort explained how he had come upon Armstrong in the
materials cage where Armstrong appeared to have made the
sign.) Simpson testified that he then reviewed Armstrong’s file
and found “at least 20” warning notices, many of which were
for wasting time. (Simpson acknowledged that the warning
notices went back more than a year in time, but he testified that
he did not know how far back they went.) After examining the
warning notices, Simpson asked Fradella and LeFort why Arm-
strong was still working for Respondent; LeFort replied that
Armstrong was a good worker when he came to work, and
Fradella told him, “when you are short of pipefitters, you will
carry people who don’t perform exactly as you would like
them.” Simpson further testified that he told Fradella and Le-
Fort (there, in the presence of Genter), “Well, we have carried
this person long enough; if he continues to mess up, then you
are going to have to terminate him.” Simpson did not testify
that he chastised LeFort in any way for allowing Armstrong to
construct a sign on working time.
On cross-examination Simpson testified that, after he re-
viewed Armstrong’s personnel file, “I said, ‘Well, if this indi-
vidual messes up any more, I think you ought to fire him.’”
Simpson acknowledged that he was not aware of any other
employee who carried a prounion sign at any Bossier speech.
Further on cross-examination, Simpson was asked and he testi-
fied:

Q. Sir, did you ever allow that Mr. Armstrong could
have made the sign at home and carried it onto Company
property?
A. I considered that.
Q. Did you ever consider that Mr. Armstrong made the
sign during lunchtime or some other non-working period?
A. I considered that.
Q. And, sir, is it in some way inappropriate for the
employee to have made the sign at home and to put it in
his or her pocket and to then bring it onto [the] property?
A. I judged at the time that he couldn’t have done that .
. . [because] I don’t know how you would walk in the gate
with a sign of some size without somebody seeing it.
Q. Well, sir, I thought you told us earlier that you
didn’t know how large the sign was.
A. It was large enough to be seen.

Simpson acknowledged that he did not undertake any investiga-
tion to determine when and where the sign was made other than
to ask LeFort (who, again, according to Simpson replied, “I
don’t know.”).
Fradella (vol. 142) testified that immediately after the June
21 Bossier speech Gerdes called him and: “He just told me that
one of my people was carrying a union sign at the Bossier
meeting. . . . [Gerdes said:] ‘You better find out what is going
on.’” Fradella testified that Gerdes did not know Armstrong’s
name, and he found out who was carrying the sign by inquiring
of his general foremen. Fradella testified that shortly after
Gerdes’ call he received the call from Simpson. Fradella testi-
fied, “He [Simpson] said did I know that one of my employees
had a union sign at the speech.”
Fradella further testified that when he and LeFort met with
Simpson and Genter, Simpson first asked when the sign had
been prepared; LeFort responded that he thought Armstrong
had prepared it “right before” the Bossier speech, and he told
Simpson what he had seen in the materials cage. Simpson then
examined Armstrong’s personnel file and the warning notices
in it. (Fradella testified, “They ran from 1987 up to the present
time.”) Upon completion of his examination of the warning
notices, further according to Fradella, “Mr. Simpson said, the
next time he does anything out of the ordinary, he doesn’t want
to see another warning; he wants the man terminated.” Fradella
denied that there was any mention of the Union during the
meeting in Simpson’s office; Simpson and LeFort did also.
(Genter did not testify.) As did LeFort, Fradella failed to testify
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1420
that Simpson chastised LeFort in any way for allowing Arm-
strong to make a sign on working time.
Gerdes (vols. 122, 123) testified that after the Bossier speech
he rode his motor bike to an area near a ship. He saw a group of
pipefitters standing around in a circle, with one pipefitter in the
middle. General Foreman Danos just happened to be in the
vicinity also. LeFort was also near, and Gerdes asked LeFort
what the pipefitters were doing; LeFort replied that he did not
know. Gerdes testified: “And so naturally, I was on my bike,
and we were about half a block, or a fourth a block apart. I
says, ‘I will go check on it.’” When asked on direct examina-
tion why he took it upon himself to do so, Gerdes replied: “Be-
cause it was suspicious. . . . Well, everyone was supposed to be
going back to work.” As he approached, further according to
Gerdes, Armstrong left the group and walked quickly between
two containers (boxcars without undercarriages that were used
for storage or field offices, as described above). Gerdes testi-
fied:

I was curious. I took the same path. I walked back
there, and he was just standing there. . . . He [Armstrong ]
had something in his hand. I didn’t know what it was. I
couldn’t see. . . . I asked him what he was doing and how
come he wasn’t working. . . . [Armstrong replied:] “None
of your business.” . . . [H]e told me I was harassing him. . .
. So I told him go to back to work, which he did.

Then, further according to Gerdes, LeFort appeared. He asked
LeFort if Armstrong worked for LeFort, and LeFort replied that
he did. Gerdes testified, “I left.” Gerdes did not testify that he
told Fradella, or Simpson, or any other supervisor of the inci-
dent. Gerdes denied that he chased Armstrong, and he denied
that he was assisted in following Armstrong by men with
walkie-talkies. Gerdes denied going through Armstrong’s tools
or searching for any objects in the area where he found Arm-
strong. No mention of a sign (“union” or otherwise) was made
during Gerdes’ testimony.
Armstrong’s Pretransfer Conduct and the Alleged Threats
to him—Conclusions
According to Gerdes, he saw pipefitters standing around, and
their supervisor was right there, but he took it upon himself to
investigate the matter himself because it was “suspicious.” As
he approached, the group did breakup, and the employee who
had been at the center walked away quickly. As a supervisor, of
course, Gerdes would have wanted the group to breakup, and
he would have wanted the group to do so quickly. There could
have been nothing “suspicious” in Armstrong’s walking away
quickly. There was nothing even remarkable about Armstrong’s
quickly walking away from the group of pipefitters, other than
that Armstrong was the employee who had held up the “union
sign” (as Gerdes told Fradella) at the Bossier speech. Even
before that, however, as an Electrical Department Supervisor
Gerdes would have seemingly left it to the pipe department
supervisor who was present, LeFort, to breakup the assem-
bly.511 Finally, Gerdes conflicts directly with LeFort; LeFort
did not testify that Gerdes asked him what the men were doing

511 In the case of alleged discriminatee Donald Mason, supra, Gerdes
admitted that he issued a warning notice to Mason for standing around,
but he did not even speak to the “three or four” employees of other
departments who were standing around with Mason. (And the supervi-
sor of those other employees was not in the vicinity, as LeFort was in
the vicinity of the pipefitters when Gerdes approached Armstrong.)
(and LeFort did not testify that he told Gerdes that he did not
know). LeFort, instead, testified that Gerdes “asked me who the
man was with the sign.” Gerdes’ testimony, I find, was com-
pletely false. I credit Armstrong and Raymond Oliveri, and I
find that men (probably including Danos who did not testify)
with walkie-talkies directed Gerdes to Armstrong, and they did
so because he had displayed a prounion sign at the Bossier
speech. Gerdes followed (actually, chased) Armstrong, and
Gerdes and Danos searched Armstrong’s things in the pipefit-
ters’ cage in an attempt to find the sign. Then, as LeFort testi-
fied, Gerdes asked him who “the man was with the sign”was. I
further believe, and find, that it was Gerdes, not Simpson’s
secretary, who told Simpson about the sign. I do not believe
that the secretary of Simpson was out in the crowd of produc-
tion workers, in a position of seeing Armstrong “flash” (as
Leadman Oliveri described it) the prounion sign, and Respon-
dent offered no testimony of how the secretary could have seen
Armstrong with the sign at the Bossier speech, but Simpson
could not.
Fradella testified that Gerdes called him and “told me that
one of my people was carrying a union sign at the Bossier
meeting. . . . [Y]ou better find out what is going on.” Then
Fradella received a call from Simpson who asked, “[D]id I
know that one of my employees had a union sign at the
speech.” It is plain enough from Fradella’s testimony that the
only concern of Simpson (and Gerdes) was that Armstrong’s
sign was a “union sign.”
Simpson then convened a meeting in his office of LeFort,
Fradella, Genter and himself. LeFort and Fradella testified that
LeFort explained how he came upon Armstrong in circum-
stances that would indicate when and where Armstrong made
the sign. Simpson, however, testified that LeFort told him that
he did not know how the sign could have been made. Simpson
testified falsely on this point, I believe, in order to convey the
impression that he believed that a significant amount of work-
ing time was used in creating the sign. LeFort, however, testi-
fied that: “It [the sign] was something put together probably in
maybe two minutes. Real makeshift.” LeFort undoubtedly told
this to Simpson also, but, even before that, any description of
the sign that Simpson received before he ordered the supervi-
sors, and Armstrong’s personnel file, to his office would have
led Simpson to the conclusion that little, if any, working time
was used in making the sign.512 Nevertheless, Simpson, the
penultimate supervisor of 4000 production and maintenance
employees, took the time personally to examine Armstrong’s
file. According to LeFort, Simpson then said that Armstrong
would be discharged if he “violates any more Company pol-
icy.” Fradella testified that Simpson said that Armstrong would
be discharged “the next time he does anything out of the ordi-
nary.” Even Simpson testified that he told Genter, LeFort, and
Fradella that Armstrong should be discharged “if he continues
to mess up.” If Simpson had been interested solely in Arm-
strong’s assumed waste of working time, he would not have
issued only such broad edicts. If Simpson had really believed
that Armstrong had violated a policy against wasting time, he
would have ordered a warning notice to be issued to Arm-
strong, or, at least, Simpson would have asked the supervisors
why they had not already done so. Finally, not one of the su-
pervisors testified that Simpson, in any way, chastised LeFort

512 I discredit Simpson’s testimony that no one described the sign to
him, and he did not ask anything about it.
AVONDALE INDUSTRIES

1421
for allowing the sign to be made on working time. I find that,
except as a possible reason to discipline or discharge Arm-
strong, Simpson was not interested in the factors of when and
where Armstrong made the prounion sign that he displayed at
the Bossier speech of June 21.
Leadman Raymond Oliveri testified that when LeFort re-
turned to his office, LeFort told him Simpson “jumped him
because he couldn’t control his people.” LeFort, however, testi-
fied that he told Oliveri that he had been “chewed out” only
because he had allowed Armstrong to make the sign on work-
ing time. Again, however, neither LeFort, nor Fradella, nor
Simpson nor Genter (who did not testify at all) testified that
Simpson did anything to “chew” on LeFort for allowing Arm-
strong make the sign on working time.513 What LeFort meant
by “control” became clear when Armstrong entered the of-
fice.514 As LeFort testified, “I told him no, that we weren’t
going to do him nothing for the sign at the Union meeting. But
I told him that I couldn’t write him any more citations because
he had excessive violations in his file, and that if he violated
any more company policies I was going to have to terminate
him.” LeFort did not testify that he told Armstrong what “pol-
icy” Armstrong had violated; LeFort never testified that he
orally warned, or otherwise admonished, Armstrong about
wasting working time by making the sign. LeFort further did
not testify that he told Armstrong that he was “chewed” upon
because Simpson thought the sign had been made on working
time. All of these factors fortify my conclusion that Simpson
had not actually been interested in where and when Arm-
strong’s prounion sign was made.
The first complaint, at paragraph 21, does allege that on June
21, LeFort threatened to get Armstrong “out of the yard.” Arm-
strong and Raymond Oliveri testified that LeFort did make such
a threat on June 21. Additionally, Armstrong claimed in the
written response to his July 13 warning notice that he had been
told that management wanted to “get me out of this yard.” As
will be seen, Armstrong was not told that he would, in fact, be
transferred to Westwego until July 30, a full 2 weeks after he
entered the quotation on his July 13 warning notice. On brief,
Respondent makes no suggestion of why Armstrong would
have placed the quotation marks on his “Employee’s Com-
ment” if he was not quoting something that he had been previ-
ously told; this hardly could have been an oversight as it is a
warning notice upon which Respondent’s defense for the ulti-
mate discharge of Armstrong greatly depends. I find that Arm-
strong used quotation marks in his concluding comment to the
warning notice because LeFort had, in fact, threatened him with
discharge if he again violated Respondent’s nonunion policy,
and LeFort, at least, told Armstrong that management wanted
him out of the yard because of his protected activity of display-
ing a prounion sign at the Bossier speech of June 21. I therefore
conclude that, in violation of Section 8(a)(1), Respondent, by
LeFort, on June 21, 1993, threatened to remove an employee
from the main shipyard because he had aided or supported the
Union, as alleged in paragraph 21 of the first complaint.
Leadman Raymond Oliveri testified that, as part of his June
21 threat to Armstrong, LeFort forecasted that Armstrong
would be out of the yard in “60 days.”Armstrong placed Le-

513 Again, LeFort testified that he told Oliveri that he had been chas-
tised by Simpson, but he did not testify that that actually happened.
514 I do not credit Armstrong’s testimony that he was summonsed to
the office by LeFort.
Fort’s 60-day prediction at June 23. Armstrong further testified
that LeFort added on June 23: “They don’t care if you collect
unemployment or not; they just want you out of their yard.”
Neither Oliveri nor Armstrong testified that LeFort made the
60-day prediction twice. The General Counsel offers no expla-
nation of how the testimonies of his witnesses could be so dif-
ferent on this point. I believe that LeFort made the 60-day pre-
diction during the June 21 exchange as Oliveri, who impressed
me favorably, testified. In view of his conflict with Oliveri,
however, I do not credit Armstrong’s testimony that there was a
second such threat on June 23. Finally, I credit LeFort’s denial
that he “noticed” Armstrong’s prounion insignia (that Arm-
strong had worn from the start of the organizational campaign
in March) and then threatened Armstrong with discharge be-
cause he wore it. I shall therefore recommend that paragraphs
23 and 24 of the first complaint be dismissed.
(2) Armstrong’s transfer to the Westwego yard
Leadman Oliveri testified that during the 2 weeks following
the June 21 Bossier speech at which Armstrong displayed the
“Vote Onion” sign, he had three or four conversations with
LeFort about Armstrong, and:

[LeFort] told me—he went to the [management] meet-
ings. Every time he come back from the meetings, he said
they asked him the same thing, if they ever got rid of Ed
[Armstrong] yet. . . . He always told me it was Simpson
that wanted him. . . . Simpson kept jumping him about
when he was going to get rid of Armstrong.

LeFort denied this testimony by Oliveri.
Carl “Black” Abadie is a pipe department general foreman
who, at the time of these events, was over all pipefitter foremen
such as LeFort. Oliveri testified that “two, three times” between
June 21 and July 30:

[W]hen we [LeFort and himself] would get ready to leave the
boat, Black would be up there when we would get ready [to]
walk down. . . . [Abadie] would ask Tate [LeFort] if he had
gotten rid of Ed [Armstrong] yet or not.

LeFort also denied this testimony by Oliveri; Abadie did not
testify.
Armstrong testified that on Friday, July 30, LeFort called
him to LeFort’s office and told him that he was to be immedi-
ately transferred to Westwego “because they needed pipefitters
who could both fit pipe and test pipe.” Armstrong testified that
there was much pipefitting and much pipe-testing work remain-
ing to be done in his area when he was told this by LeFort. This
is not disputed; indeed, as quoted above, on June 21, LeFort
and Fradella told Simpson that one of the reasons that Arm-
strong had not previously been discharged was because the pipe
department was short of pipefitters and Armstrong was an ex-
cellent one.
At the same time that Armstrong was transferred to West-
wego, pipefitters James Melton, Luis Gonzalez, and Ken Mad-
ere were also transferred. As further discussed below, the sec-
ond complaint alleges that the transfers of Melton and Gonzalez
violated Section 8(a)(3). (No such allegation is made for Mad-
ere on whose behalf no charge was filed and who, apparently,
was not a prounion employee; Madere did not testify.) On Au-
gust 2, the four pipefitters reported to Barry Heaps, the vice
president of Respondent’s small boat division which is the
Westwego operation. When they arrived, according to Arm-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1422
strong, Heaps, “threw his hands open” and stated, “What did
they send me pipefitters for?” Melton (vol. 12) also testified:

Barry Heaps and Billy Sixworth both said they don’t know
why in the world they sent us to Westwego yard, because they
didn’t have any pipe testing or pipefitting work in that yard to
be done at all.

(“Sixworth” is apparently “Sigsworth.” Sigsworth is an engi-
neer, according to documents introduced by Respondent on
day-155 of trial. Sigsworth did not testify.)
Armstrong testified that he did no pipe testing or fitting work
at Westwego through the date of his discharge, September 13.
During his first week at Westwego he, Melton, and others
moved furniture and mopped and waxed floors in a building
that was being refurbished. During the following week, Arm-
strong and Melton assembled some stair railings which did
involve some tack welding, but not pipefitting work. After that,
Armstrong and Melton were assigned to a crew that used cut-
ting torches to disassemble some metal skids that had been
dragged out of the Mississippi River. Thereafter, Armstrong
was assigned to: shovel debris from an area, dig trenches, help
pull trees out of the Mississippi River (a process described in
detail in the account of Melton’s discharge), scrub toilets and
floors in a bathroom, and pick up trash with his hands and with
a stick-and-nail device.
Armstrong further testified that during his first week at
Westwego Foreman Jerry Petticrew conducted a safety meeting
for employees. After the safety subjects had been completed,
Petticrew stated, for the benefit of the recently transferred em-
ployees, that certain rules existed at Westwego that did not
exist at the main yard. Armstrong testified:

[W]e were being instructed—the new people—that he
[Petticrew] was taking this time to instruct us as far as how
to go to the bathroom—we had to inform them; go get wa-
ter—we had to inform them. . . .
And we complained a little bit verbally out loud about
it, not saying we wouldn’t do it, but saying just that, that
we didn’t have to do that in the main yard, why here?
Well, [Foreman] Haywood LaSalle stood up and said,
“If you all would have voted the way the Company wanted
you to, you wouldn’t even be over here.” And everybody
cracked up laughing, taking it as a joke.

Gonzalez, who testified in Spanish, but who had some com-
mand of English, testified that he attended a Westwego meeting
that was conducted by a foreman. Gonzalez was asked and he
testified:

Q. Do you recall whether or not anything was said to
you about why you were at Westwego?
A. Three days after we were transferred, there was a
meeting, and the foreman said, All the new [employees
who] was right here were told not to vote for the Union;
that is why you are here.
Q. Could you please say for us in English what was
said at this meeting?
A. Every people new here I told you no vote for union.
You work now here for vote for union.

Melton testified that at a safety meeting LaSalle told employees
“[I]f we would have voted right, we wouldn’t have been in
Westwego in the first place.” Based on this testimony by Arm-
strong, Gonzalez and Melton, paragraph 71 of the second com-
plaint alleges that “Respondent, by Haywood LaSalle or Jerry
Petticrew, threatened its employees by telling them that they
had been transferred to Respondent’s Westwego shipyard be-
cause they [had] aided or supported the Union.”515 LaSalle and
Petticrew denied that any such statement was made by either of
them.
As will be discussed in detail in their individual cases, pipe-
fitters Melton and Gonzalez also testified that they were given
jobs quite unlike what they had been doing at the main yard, at
least initially. Melton, actually a pipe tester, testified that he
was given the same jobs as Armstrong, but no pipefitting or
pipe testing work, before he was discharged on August 23.
Pipefitter Gonzalez testified that he was assigned to cleaning
duties, moving furniture and helping pull heavy objects from
the Mississippi River, but he was not given any pipefitting
work during the 3-month period following his transfer to
Westwego.
As further evidence that the selections of Armstrong, Mel-
ton, Gonzalez, Brown, and Fleming for transfer to Westwego
were unlawfully motivated, the General Counsel introduced the
testimony of Douglas Menier, a former leadman at Westwego.
Menier (vol. 32) testified that he was employed by Respondent
at the Westwego yard from January through June 1994, when
he was discharged. Menier testified that he and Westwego
Foreman Dan Wheeler often ate lunch together in Wheeler’s
office during that period. Menier testified that the Union was
mentioned in three conversations with Wheeler from January
through April; the first two of these conversations were at
lunchtime, and the last was not. Menier testified that at the first
lunchtime conversation with Wheeler:

We was talking about [Westwego Foremen] Jerry Petticrew
and Haywood LaSalle. . . . [h]ow Haywood was always mess-
ing up, putting bulkheads in wrong. He couldn’t read the
drawings very well, and . . . [Wheeler] . . . [s]aid that the rea-
son Haywood still had his job [was] because he had that hit
list of all the Avondale employees; Union employees that was
sent there to be terminated.

Menier testified that at the second such lunchtime conversation
Wheeler was again talking about Petticrew and LaSalle when
he said:

[t]hat the reason Jerry [Petticrew] still had his job, [was] be-
cause he knew about the hit list. But he didn’t want to fire
anybody from the hit list. He just didn’t want to fire nobody
like that. . . . [Wheeler also said that] he thinks Jerry got a
raise because he knew about that list.

The third conversation with Wheeler, according to Menier,
occurred when he saw Wheeler out in the Westwego yard. Ac-
cording to Menier, Wheeler was expressing anger at Westwego
General Foreman Devon Barber. Menier testified:

Well, he [Wheeler] was mad. He had just come out of
the office, and he was mad at Devon for something. I don’t
know [what]. And . . . [Wheeler ] said that he didn’t have
to worry about his job because he knew about that hit list.

515 Respondent contends that this 8(a)(1) allegation is not supported
by a timely filed charge. For the reasons stated above in sec. IV,(A),(1)
of this decision, I find and conclude that this allegation is supported by
the timely filed charges of discrimination against Armstrong, Melton,
and Gonzalez, as well as the charge in Case 15–CA–12171-1.
AVONDALE INDUSTRIES

1423
And he said if they tried to fire him, he would just report
[the list], but he didn’t say to who.

Wheeler denied all of this testimony by Menier.
As still further evidence of unlawful motivation in the trans-
fer of Armstrong, the General Counsel introduced evidence of
Leadman Oliveri who testified that, at the main yard, on the day
that Armstrong was transferred to Westwego, LeFort told him
that he was going to Abadie and complain, “because he didn’t
want Ed to leave. He wanted to keep Ed.” Oliveri testified that
later:

Then he [LeFort] went and seen Black [Abadie], and
then he come back later and told me that Black told him
there wasn’t nothing he could do about it . . . because
Mike Simpson had give the names of the ones they wanted
transferred to Westwego.

LeFort denied this testimony also.
Armstrong’s transfer to the Westwego yard—
Respondent’s evidence
Respondent’s evidence of economic necessity for the transfer
of 30 employees to the Westwego yard in July and August was
presented principally through Heaps, the vice president and
general manager of Respondent’s Westwego operation. Heaps
(vol. 68) testified that gaming boats are (by Louisiana law)
patterned after Nineteenth Century Mississippi River gambling
boats: they include three or four decks of gambling areas, a
shapely bow and a working paddle wheel. Heaps testified that
on July 8 Respondent signed contracts to build two gaming
boats in 1 year’s time. This was a short schedule, and Respon-
dent built portions according to when the engineering drawings
became available.
Heaps further testified that Respondent’s last contract at
Westwego had been finished in January 1993, and there were
only about 20 employees working at Westwego when the gam-
ing-boat contracts were secured. To perform the gaming-boat
contracts, Heaps testified, he decided to use a combination of
new hires, subcontractors and employees who were to be trans-
ferred from the main yard. Heaps testified that this is what the
Westwego operation had done to perform under a contract that
had been completed in late 1992 or early 1993. Heaps testified
that the first employees that he wanted were shipfitters, welders
and pipefitters, even though the initial work to be done only
involved cleaning debris from the yard and the Mississippi
River bank (where a new dock would be built for work in-
volved in the contracts). This debris included steel structures
that were on the ground and in the river, and trees that had
grown up along the bank. To secure these employees, Heaps
contacted Simpson. Heaps testified that he told Simpson that he
needed 30 employees from the main yard and: “I was trying to
get a mix of classes, but mostly experienced people who were
versatile in the work that we do.” Heaps testified that he wanted
Simpson to send him skilled tradesmen “immediately,” even
though the initial phase of construction was cleanup work, be-
cause some engineering drawings were coming each day that
could be worked on, at least for a few hours, and: “the worst
thing that could happen to me in this tight time frame was for
me to get a dozen people for three hours and then they would
go back [to the main yard], and then the next day [that I had
engineering drawings to be worked with] I would get different
people, so you would go through that learning curve every
day.”
On cross-examination Heaps testified that, in several conver-
sations during July and August, he asked Simpson for 30 em-
ployees in the classifications pipefitters, welders and shipfitters
to be transferred to Westwego, and he told Simpson how many
employees in each classification that he wanted, but he could
not remember what numbers he gave Simpson. Heaps asked for
classifications even by level (first or second class shipfitters,
for example).
Simpson testified that when he received Heaps’ request, he
contacted his subordinate vice presidents, Ken Genter and Emil
Foret; Genter was in charge of pipefitters, and Foret was in
charge of welders and shipfitters. Simpson testified that he did
not name any of the employees to be transferred to Westwego.
He gave Foret no advice about how to select employees be-
cause Foret had been through the process before. Simpson testi-
fied however, that he did give Genter advice. Simpson was
asked and he testified:

Q. And what did you tell Mr. Genter at the time that
you gave this advice to him?
A. I said, “This is an opportunity to move some of
your problem people, some of the people that require more
attention than you would like to have to give them, to an-
other yard.”
Q. And why did you make this statement to him?
A. Because it was an opportunity to move people that
he was having trouble controlling here to an area where
perhaps we could control them better.
Q. And why did you believe that the Westwego yard
was an area where people could be controlled better?
A. A single project, wide open type of construction, at
least initially, easy to see your people, easier for them to
see you, and it was a simpler type of work requiring, in
many instances, a lesser skill level.

Simpson testified that Heaps requested workers even down to
fourth-class mechanics. Simpson acknowledged that there was
work for all of the employees at the main yard at the time, but
“I get paid for making these decisions regarding answering
priorities.”
Fradella testified that the first he knew of the transfer of
pipefitters to Westwego was from a telephone call from Genter.
Fradella could not set the date of the call, but he testified that
Genter told him that: “[T]he Westwego yard needed four pipe-
fitters. And he told me to send four people that were knowl-
edgeable people, and if I had any problem people to get rid of
them then.” Fradella further testified that he immediately se-
lected Armstrong, “Because of the amount of citations I saw in
his folder. . . . I saw them at the Simpson meeting, right after
the Bossier meeting [on June 21].” Fradella testified that he
then called John Whittington, the pipe department general
foreman at wet dock-3 and told him that “I wanted Ed Arm-
strong to go and one other person that was knowledgeable in
the pipefitting field.” Fradella testified that he then called
David Whitney, the pipe department general foreman in the
unit-construction area and told him that: “I needed two knowl-
edgeable people to go to Westwego yard, that they would be
transferred, and if he had any people that had problems as far as
citations were concerned, to send those.” Melton and Gonzalez
were then working under Whittington and Whitney, respec-
tively. Fradella denied that he chose Melton or Gonzalez for
transfer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1424
Whittington testified for Respondent (vols. 74, 76), but on
direct examination he was not asked anything about the subject
of the Westwego transfers or what he was told by Fradella.
Before he was called by Respondent, however, Whittington had
been called as an adverse witness by the General Counsel on
day-43 of trial. At that time, Whittington was asked and he
testified:

Q. And at that time, the only people transferred [to
Westwego] were Mr. Armstrong and one other person.
Correct?
A. From my crew. No, there were other people from
the shipyard that were transferred. But for the people that
worked directly for me, those were the two names that
were given to me to transfer.
Q. Do you recall the name of the other person [in addi-
tion to Armstrong]?
A. Joe Melton. . . .
Q. Was it Mr. Abadie [again, the general foreman over
all other Pipe Department general foremen at Wet Dock-3]
or Mr. Fradella who gave you the information that the two
individuals were being transferred?
A. It was either one of them. . . . I just don’t remember
which one.
Q. And it is correct that he simply gave you a docu-
ment with two clock numbers written on it, isn’t it?
A. Yes, sir.
Q. You didn’t have names, just clock numbers. Cor-
rect?
A. Clock numbers. . . . There could have been two or
three more clock numbers on it, but the only two clock
numbers that pertained to me were on that list.

That is, Fradella testified that he left the choice of a pipefitter
from wet dock-3, in addition to Armstrong, up to Whittington;
Whittington, however, testified that he was told, in writing, to
transfer Melton, as well as Armstrong. On brief, Respondent
acknowledges that Fradella and Whittington testified “differ-
ently,” but it makes no suggestion of how their testimonies can
be reconciled.
Whitney (vol. 137) testified that he received his instructions
to transfer pipefitters to Westwego from Genter, not Fradella.
(On brief, Respondent makes no suggestion of how this conflict
can be reconciled, either.) Whitney testified that Genter told
him to send “quarters-type people” who are employees who do
pipefitting for the living quarters and other areas where Navy
personnel are regularly stationed (as opposed to “machinery-
space-type people”). Whitney further testified that Genter told
him, “Send your trash,” which is what we normally do anyway.
By “trash,” Whitney testified, he meant “lesser qualified peo-
ple.” Whitney further testified that he had transferred employ-
ees out of his department before, and stated that he always sent
his “trash” because: “I would be a fool to send my best fitter. I
am going to keep my best people and get rid of my worst peo-
ple.” Whitney also testified that he communicated to his subor-
dinate supervisors that: “I need to send some people to West-
wego; let’s get rid of some of our trash.” Whitney testified that
he did not recall who recommended them, but, ultimately, on
the basis of his foremen’s recommendations, he selected Gon-
zalez and Madere (again, a non-alleged discriminatee) to be
transferred.
Whitney testified that he had personally hired Gonzalez, but
he selected Gonzalez for transfer to Westwego: “. . . [b]ecause
he was very hard to understand. He could not understand us but
very little, and he was not able to do the work that was per-
formed throughout our area.” (Whitney testified that he selected
Madere because: “He griped about everything.”) When asked if
he mentioned the Union when discussing the selection process
with his foremen, Whitney flatly denied it. When asked if the
Union was mentioned when Genter told him to transfer some
“quarters-type people” to Westwego, Whitney testified, “Not
that I can recollect, sir.” On cross-examination, Whitney was
firm that Genter told him to “send trash people.” Whitney testi-
fied that he believed it was Gonzalez’ foreman who told him
that Gonzalez was hard to understand, but he did not recall who
that foreman was. Gonzalez’ foreman was, in fact, David
Daigle; Daigle did not testify.
Armstrong’s Transfer to the Westwego Yard—Conclusions
Respondent admits that its supervisors had knowledge of
Armstrong’s extensive union activities and, in view of the evi-
dence of Respondent’s animus toward such activities, and in
view of LeFort’s specific threat that Armstrong would be out of
the main yard in “60 days,” there is no question that the Gen-
eral Counsel has presented a prima facie case that Armstrong
was transferred to Westwego, and then discharged, in violation
of Section 8(a)(3). Respondent’s defenses for those actions
must therefore be examined.
Evidence that at least some of the transferred employees
were transferred because of their prounion sympathies lies in
the credible testimony by Armstrong, Melton, and Gonzalez
that LaSalle, at a Westwego safety meeting, told the “new”
employees that they would not have been transferred there had
they not “voted” for the Union. That some employees laughed
at the time does not lessen the coercive impact that it would
have had on the employees who heard it, and it is not a defense
to the allegation made in the complaint. I conclude that, in vio-
lation of Section 8(a)(1), Respondent, by LaSalle, on August 2,
1993, threatened its employees by telling them that they had
been transferred to Respondent’s Westwego shipyard because
they had aided or supported the Union.
Further evidence that at least some employees were trans-
ferred to Westwego because of their prounion sympathies lies
in the credible testimony of former Westwego Leadman
Menier. Menier credibly testified that Westwego Foreman
Wheeler told him three times that there was a list of “union
employees that was sent there to be terminated.” Wheeler
would not have said such a thing unless at least some of the
main yard employees who had been transferred to Westwego
were, in fact, marked for future termination (whether the list
had been reduced to writing or not). Such transfers would, of
course, be violative; the question is which employees were
transferred because of their union activities or prounion sympa-
thies.
It is clear enough that in July and August the Westwego yard
was not ready for building boats, at least not boats the size of
the gambling boats that Respondent had contracted to build.
The cleaning up and preparation of the yard had to be done
first, then things had to be fitted and welded as engineering
drawings were received. Such fitting and welding was the tradi-
tional work of shipfitters and welders, and it is not illogical that
Respondent would want some those craftsmen there and ready
when their work could begin, even if they had to be occupied
with unskilled work while they waited. The Board, therefore,
will not substitute its judgment for Respondent’s in its decision
to move, as it did, 11 welders and 15 shipfitters to Westwego in
AVONDALE INDUSTRIES

1425
July and August. (The issues of why it selected two particular
welders, alleged discriminatees Brown and Fleming, will be
discussed infra.)
There is, however, absolutely no logic offered by Respon-
dent for its transfer to Westwego of pipefitters Armstrong, Mel-
ton and Madere, and pipe-tester Melton. The closest Respon-
dent comes to logic is Heaps’ testimony that “[T]he worst thing
that could happen to me in this tight time frame was for me to
get a dozen people for three hours and then they would go back
[to the main yard].” The question immediately arises, however:
Why would Westwego have to send employees back after only
a few hours, or even days? Also, Simpson expressed complete
willingness to transfer employees permanently; he made no
reservation that the transfers were to be on a temporary basis.
Moreover, the employees were told on a Friday that they should
be at Westwego on the following Monday; that is, Respondent
was able to move employees immediately. There was, there-
fore, no reason that pipefitters, whose skills would not be used
until much later, had to be moved as soon as they were. Indeed,
General Foreman Whitney testified that Genter told him that
Respondent wanted “quarters-type” pipefitters moved. These,
necessarily, would be among the last pipefitters to be needed in
construction, if not the last, and certainly they would follow
shipfitters and welders by a long period of time. I therefore do
not believe, and do not credit, the testimony of Heaps and
Simpson that Heaps’ original request for labor included pipefit-
ters or pipe-testers. I do believe, and I credit, the testimony of
Armstrong and Melton that, when they arrived at Westwego,
Heaps threw up his hands and asked, rhetorically, “Why did
they send me pipefitters for?” As Heaps further said then, he
had no pipefitting or pipe-testing work to be done. Finally, the
proof that the transfers of the pipefitters were, at least, acceler-
ated beyond any business necessity is found in the fact that the
pipefitters did no pipefitting or pipe-testing for months; Melton
was quickly discharged, but Armstrong did no pipefitting
through the date of his discharge on September 13 (or about 1-
1/2 months later) and Gonzalez did none for a full 3 months
after the August 2 transfer of the pipefitters to Westwego (as
Gonzalez testified in his case, infra). Instead, they were taken
from where they were needed (as proven by the fact that on
June 21 LeFort and Fradella told Simpson that the only reason
that Armstrong was employed was because they were “short”
of pipefitters) and put to menial cleaning tasks, and compara-
tively menial tack-welding and cutting-torch tasks (as described
in the cases of Armstrong and Gonzalez, infra).
Specific evidence that Armstrong was selected for transfer to
Westwego because of his extensive expressions of prounion
sympathies (by his sign at the Bossier speech and his appearing
on television, as well as his wearing prounion insignia) lies in
the testimony of Leadman Oliveri who testified that before the
transfer, LeFort told him that Simpson “kept jumping him
about when he was going to get rid of Armstrong,” and that
Abadie, in Oliveri’s presence, asked LeFort “if he had gotten
rid of Ed [Armstrong] yet.” Although LeFort denied this testi-
mony, Abadie did not testify, a factor that I consider critical. I
credit Oliveri. I further credit Oliveri that, on the day that Arm-
strong was transferred, LeFort told Oliveri that he had asked
Abadie if the transfer could be canceled, but Abadie replied that
it could not “because Mike Simpson had give the names of the
ones they wanted transferred to Westwego.” As well as the
better credibility of Oliveri516 and the absence of Abadie, Whit-
tington testified that there was a list of employees to be trans-
ferred. Whittington testified Fradella or Abadie gave him a list
of employees’ badge numbers that indicated that Armstrong
and Melton were to be transferred to Westwego; Whittington
was given no choice in the matter. Whittington would not have
given such testimony if it had not been true. On the basis of the
credible testimony of Oliveri, and the admission by Whitting-
ton, I further discredit the testimony of Fradella that he left the
choices of pipefitters, other than Armstrong, to be transferred to
Westwego up to the general foreman.
Simpson testified that he did not select Armstrong to be
transferred to Westwego; I do not believe that testimony. I be-
lieve that, as LeFort plainly stated to Oliveri, and then to Arm-
strong, when LeFort returned from the June 21 meeting in
Simpson’s office, and as LeFort later told Oliveri after Arm-
strong had been transferred, Simpson wanted Armstrong “out
of the yard.” Heaps’ request for labor at Westwego, I believe,
was seen by Simpson as a convenient opportunity to fulfill that
desire. I further believe that Simpson ordered Armstrong out of
the yard because of the prounion sign that Armstrong held up at
the June 21 Bossier speech (and, possibly, because of Arm-
strong’s television appearance on behalf of the Union). The
chase by Gerdes and the inordinate attention that the penulti-
mate supervisor of 4000 employees gave to the matter belie any
contention that Simpson passed up the chance to discriminate
against such a salient union advocate.
Nevertheless, the testimony of Fradella that he selected Arm-
strong for transfer, and why, must be addressed. Fradella testi-
fied that Genter told him to send to Westwego “four people that
were knowledgeable people, and if I had any problem people to
get rid of them then.” Fradella further testified that he selected
Armstrong because of the warning notices that he had seen in
Armstrong’s file when he was in Simpson’s office on June
21.517
Fradella’s testimony that Genter told him to get rid of “prob-
lem people” is consistent with Whitney’s testimony that Genter
told him to get rid of “trash.” It is further consistent with Simp-
son’s testimony of what he told Genter. I do not, however, be-
lieve Fradella and Whitney to the extent that they sought to
convey the impression that “problem people” or “trash” were
understood by them to mean anything other than prounion em-
ployees. I also do not believe that Simpson, who testified that
he was willing to sacrifice needed craftsmen for the benefit of
the Westwego operation’s success, gave such an order to
Genter. In the first place, this testimony requires the perception
of Westwego as something of a dumping ground for misfits, not
a co-equal part of Respondent’s operation. (Certainly, Heaps
did not testify that he was under the impression that he was
leaving himself open to receiving the dregs of the main yard
when he asked Simpson for labor help.) In the second place, the
superintendent of the welding department, Pertuit, testified to

516 As Respondent points out on brief, Oliveri testified that he
thought Armstrong should have been discharged long before he was
transferred. Further evidence that Oliveri was not testifying to help
Armstrong was shown by his “Vote Onion” testimony that contradicted
Armstrong’s.
517 It is to be noted that Fradella did not testify that Armstrong’s July
13 warning notice (upon which Armstrong quoted the phrase “get me
out of this yard”) had anything to do with Armstrong’s transfer. Indeed,
Fradella was absent on July 13, and there is no evidence that he ever
found out about the incident of that date.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1426
receiving no such instruction from his vice president, Foret. If
there had been such a practice of dumping misfits (as Simpson
and Whitney, in effect, testified), Pertuit would have testified
that ridding himself of undesirables was at least an option in his
selection processes. Finally, Melton and Gonzalez were not
only first-class pipefitters whose talents and training were go-
ing to waste at Westwego,518 they had absolutely perfect
disciplinary records; neither had ever been issued a warning
notice. (On the other hand, they were, as I discuss in their
cases, known prounion employees.) I believe, and find, that
Simpson told Genter, and Genter told the superintendents,519 to
use Westwego’s need for labor to rid themselves of prounion
employees, particularly Armstrong, immediately. Thereafter,
because there was no pipefitting work for him to do at
Westwego, Armstrong, an excellent pipefitter whose talents
were really needed at the main yard, was assigned to the
comparatively demeaning tasks of shoveling debris, digging
trenches, pulling trees out of the Mississippi River, scrubbing
toilets and floors in a bathroom, and picking up trash with his
hands and with a stick-and-nail device.
In summary, the preponderance of the evidence is that, if it
had not been for Simpson’s desire to rid the main yard of the
prominent prounion employee Armstrong, Respondent would
not have transferred any pipefitters to Westwego, at least as
early as it did. Respondent did transfer Armstrong, and it simul-
taneously transferred other pipefitters that it did not then need
at Westwego to cast an aura of legitimacy to Armstrong’s trans-
fer. (In the process, it unlawfully transferred two other prounion
employees, Melton and Gonzalez, as I find and conclude infra
in their cases.) Respondent has therefore not shown that it
would have transferred Armstrong to Westwego even in the
absence of his protected activities (at the main yard). I therefore
find and conclude that by transferring Armstrong to its West-
wego yard on August 2, 1993, Respondent violated Section
8(a)(3) of the Act.520
(3) Armstrong’s discharge for using an unauthorized
welding shield
Background—Armstrong’s July 13, 1993 Warning Notice
Respondent contends that part of the reason that Armstrong
was ultimately discharged is found in the circumstances of a
warning notice that was issued to Armstrong on July 13. (This
is the warning notice which the General Counsel placed into
evidence because of Armstrong’s entry in the employee com-

518 As Simpson testified, the Westwego work was: “simpler type of
work requiring, in many instances, a lesser skill level.” Moreover, I
have discredited above testimony by Heaps and Simpson that Heaps
told Simpson that he needed pipefitters, much less first-class pipefitters.
519 It was Genter, it will be remembered, who told alleged discrimi-
natee Ramona Edwards in November 1992, “Do you know that you can
be fired immediately for that?” when Edwards told Genter that the
employees needed a union. Moreover, Whitney testified that he could
not remember if Genter had mentioned the Union when Genter was
telling him to transfer employees, leaving open the distinct possibility
that Genter did so, and did so in an unlawful sense.
520 Why the nonunion Madere was also sent to Westwego at the
same time as Armstrong is not an issue before me. Certainly the trans-
fer of Madere does not legitimize, and create a defense for, the allega-
tions that the three other pipefitters were unlawfully transferred to
Westwego. If it were, an employer could cloak any numbers of unlaw-
ful transfers (or other acts) by including one nonunion employee in its
actions.
ment space, as quoted above.) Respondent also contends that its
supervisors’ decision to issue a warning notice to Armstrong on
July 13, rather than discharge Armstrong, proves that it had no
animus against Armstrong’s prounion sympathies. Again, the
issuance of Armstrong’s July 13 warning notice is not alleged
as a violation of the Act, and the General Counsel asked Arm-
strong nothing about the underlying incident. The following
account, therefore, is taken solely from the testimony of Re-
spondent’s witnesses.
LeFort testified that on July 13 Foreman Ronald Oliveri
called him and stated that he wished to issue a warning notice
to Armstrong because Armstrong had emptied on to a deck a
bucket that contained oil and oily rags. LeFort testified that he
told Oliveri that he did not think that Armstrong could be is-
sued another warning notice because “he had too many viola-
tions in his file already.” (LeFort did not testify that he told
Oliveri that Simpson had, on June 21, stated that Armstrong
was to be discharged, not issued another warning notice, upon
his next offense.) Foreman Oliveri (vol. 142) testified that he
did, in fact, witness Armstrong spilling the contents of a bucket,
about a gallon of oily fluid and some rags, on to a deck near a
drain that led to the Mississippi River. Armstrong claimed that
the spill was accidental, but Oliveri believed that it was not.
Oliveri testified that he then called LeFort and said that he in-
tended to issue a warning notice to Armstrong. Oliveri did not
testify what LeFort responded; specifically, Oliveri did not
testify that LeFort told him that Armstrong had too many warn-
ing notices to be issued another. (On cross-examination Oliveri
denied that anyone told him that Simpson had said that Arm-
strong should be discharged upon his next offense.) Oliveri
testified that he then went to examine Armstrong’s personnel
file. (When asked on cross-examination why he sought Arm-
strong’s personnel file, Oliveri did not testify that it was be-
cause of anything that LeFort had told him; Oliveri answered:
“To see what the file had in there, what type of person this was.
Were there any other types of citations or violations, you
know.”) Oliveri testified that after he secured and examined
Armstrong’s file, he decided that, in view of the many warning
notices that he saw there, Armstrong should be discharged. He
called LeFort and told LeFort that he thought Armstrong should
be discharged and LeFort replied: “This is your call.” (As Oliv-
eri put it on cross-examination, “I mean, he basically left it up
to me.”) Oliveri further testified that he then attempted to call
Fradella and Simpson, but both were out for the day. Oliveri
then called Genter. (Oliveri testified that he attempted to call
his superiors because “he [Armstrong] was known as being a
union person and that he would probably scream and holler and
say that I didn’t have a right to do what I wanted to do.”) Oliv-
eri did reach Genter; when he did so he told Genter that he
wanted to discharge Armstrong because Armstrong had inten-
tionally spilled oil on a deck and because Armstrong had a
large number of warning notices in his file. Oliveri testified that
Genter told him, “Well, it is your call. You want to get rid of
him, you do it.” (That is, Genter, who was present when Simp-
son said on June 21 that Armstrong was to be discharged on his
next offense, left the matter up to Oliveri.) Oliveri then pre-
pared a ASI-22 (discharge) form for Armstrong and gave it to
Genter’s clerk for processing. Oliveri then went to Armstrong
and LeFort and told Armstrong that he was discharged. Arm-
strong asked to speak to Genter, and Oliveri allowed Armstrong
to use his telephone in private. After Armstrong spoke to
Genter, Genter spoke to Oliveri and stated that he would come
AVONDALE INDUSTRIES

1427
to the scene of the spill and examine the matter further. Genter
did come to the scene and, outside the hearing of Armstrong,
told Oliveri and LeFort that he believed Oliveri but Armstrong
was still claiming that the spill was accidental and that only a
warning notice should be issued. Then Oliveri issued to Arm-
strong a warning notice under the Avondale Employees’
Guide’s major offense-23 (“Deliberate violations of safety,
security or plant protection regulations.”) The text of the warn-
ing notice is: “Deliberate violation of safety regulation. [Arm-
strong] observed disposing of hazardous waste improperly,
making working conditions unsafe. Next warning notice will
result in termination.” (The failure of Genter, Oliveri, and Le-
Fort to mention Simpson’s June 21 imperative to discharge
Armstrong on the occasion of his next disciplinary offense,
much less carry that imperative out, went unexplained.)
Background—Use of Different Types of Welding Masks by
Armstrong and Others
On September 10, while working at Westwego, Armstrong
was given a tack-welding job. The job, according to Armstrong,
was to attach a set of prebuilt steps to span a 3-foot drop from a
platform upon which a unit was to be built. While he was work-
ing on this job, which was in an open area, Armstrong used a
welding shield, or mask, of which Respondent had not ap-
proved. Armstrong was issued a warning notice for using the
unauthorized welding shield, and then he was immediately
discharged. Respondent contends that Armstrong was dis-
charged for using the unauthorized welding shield and because
of his prior disciplinary history which included Armstrong’s
just-discussed July 13 warning notice for the safety-rules viola-
tion of spilling oil on a deck and Armstrong’s October 6, 1992
warning notice for the safety-rules violation of not wearing a
hardhat in a production area. (Respondent does not contend that
Armstrong’s other prior warning notices were part of the reason
for his discharge.)
Blindness is not the only peril to which welders are sub-
jected; slag and sparks can fall on welders, causing serious
burns to the face, to the top of the head and to the ears, as well
as to other parts of the body. Respondent’s employees who
regularly perform welding work are required to own shields,
and they are required to wear them while welding. Received in
evidence were four examples of different types of welding
shields. (1) One welding mask that was introduced in evidence
is a full-face shield which is the type that one usually sees a
welder use. More particularly, the full-face shield is made of
fiber-metal, and it is shaped something like a rectangular-based
bowl. At the top and toward the rear of each side, the full-face
shield has fixtures by which it attaches to, and pivots on, fix-
tures on a hardhat. It covers the face fully from over the top of
the forehead to under the chin, and around the sides to cover the
ears. Its vertical dimension is 14 inches, and its horizontal di-
mension, at the ears, is about nine inches. (The lens area of
each welding mask that was introduced in evidence is approxi-
mately 1 and 3-fourths inches by 4 inches.) (2) The second type
of welding shield that was introduced into evidence is made
from a heavy piece of leather that is 12 inches (horizontally) by
9 inches. When it is to be used, the leather is folded at vertical
creases that are 3-1/2 inches from the lateral borders. The cen-
ter section, which holds the lens, is approximately 5 inches
wide, the 3-1/2-inch border sections fold back toward the ears,
but they do not cover them. An elastic band runs between the
border sections to allow the leather mask to be slipped over the
head of a welder and held in place. (3) Also introduced in evi-
dence was a “cut-down” shield; Armstrong testified that it was
this shield that he used on the stairs job on September 10. The
cut-down shield was, at one time, a full-face shield. The part of
the front that goes over the forehead, and the part of the front
that goes under the chin, have been cut off. Also, the sections of
the full-face shield that wrapped around to cover the ears have
been cut off, reducing the side coverage from about 5 inches to
about 2 inches (that is, the ears have no protection with the cut-
down shield). Holes have been punched at the upper corners of
the cut-down shield, and through those holes are run the ends of
a (nonelastic) strap which would hold the mask in place when it
is slipped over the head. (4) Finally introduced in evidence was
a cardboard shield; this mask is of the same size and shape as
the leather shield, but it is made of cardboard and it is covered,
front and back, with duct tape. It is undisputed that any such
cardboard shield is less protective than any of the other shields,
and its use presents additional danger because of the flammable
glue on the duct tape.
Respondent contends that the full-face shield and the leather
shield (which is only to be used in extremely tight places) are
the only welding shields that it authorizes or approves for use
by employees who do welding. The General Counsel, however,
offered testimony that, in the presence of supervisors, and with
impunity, Respondent’s employees performed welding using
cut-down shields and even one cardboard shield. The General
Counsel contends that, because it had previously allowed weld-
ers to use cut-down shields, and even the cardboard shield,
Respondent treated Armstrong disparately when it discharged
him for using the cut-down shield. Respondent answers that (1)
its supervisors never allowed the use of the cut-down shield or
the cardboard shield, (2) even if credited, the General Counsel’s
evidence relates only to the use of unauthorized welding shields
at the main yard, not Westwego, and (3) most importantly, the
cut-down shield that was received in evidence was not the
shield that Armstrong was using on September 10; Respondent
contends that Armstrong was using an even smaller shield
which was less protective and which had to be held with one
hand while the welder welded with the other.
Armstrong testified that he never used the full-face shield
during his 6-year tenure with Respondent. Rather, Armstrong
testified that he used the cut-down shield, “[d]aily, at least.”
Armstrong testified that he began using the cut-down shield
when he was first employed by Respondent in order to get into
“tight” places on ships, to jobs such as tack-welding of pipe-
hangers on overheads (ceilings) of ships. Armstrong testified
that, before he was transferred to Westwego, he had also seen
“[p]robably 50 to 100” other welders use such cut-down shields
at the main yard, in tight places and in open places. Armstrong
testified that a safety inspector once saw him using his cut-
down shield but said nothing. Armstrong further testified that
some foremen, including LeFort and Lawrence Mallini,
watched him as he used the cut-down mask at the main yard.
On cross-examination Armstrong acknowledged that when a
safety inspector saw him using the cut-down shield he was tack
welding in a tight place, but he insisted that LeFort and Mallini
saw him using the cut-down shield in open, as well as tight,
areas. LeFort denied ever seeing Armstrong use any cut-down
shield; Mallini did not testify. (As mentioned in the cases of
alleged discriminatees King and Jackson, Mallini had moved to
another state by time of trial, and his whereabouts were un-
known.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1428
Current employee, and pipefitter, Frank Moran (vol. 9) testi-
fied that he has been employed by Respondent for 5 years, and
he has a cut-down shield “exactly” like Armstrong’s. He further
testified that he owns no other welding shield, and he uses the
cut-down shield regularly in the open and in tight spaces, and
he has used it in the presence of Pipe Department Foreman
Lawrence Mullins. Moran testified that he has never been dis-
ciplined for wearing the shield. Moran further testified that in
1994 he was issued a certification for tack-welding by Respon-
dent; he took the test using his cut-down shield that is the same
as Armstrong’s, and the instructor did not object. He was issued
the certification. Mullins testified for Respondent, but he did
not deny this testimony by Moran.
Current employee Betty Dumas (vol. 52) testified that she
had been a pipe-tester for about 2 years. During the 2 years
preceding her becoming a pipe-tester, Dumas was a pipefitter.
Dumas testified that the cardboard shield that was introduced in
evidence, as described above, belongs to her. During the 2
years that she was a pipefitter, Dumas testified, she used only
the cardboard mask. She used it in tight areas as well as open
areas on the platforms, every day, because she had to tack weld
all of the pipe that she installed. Dumas testified that when her
helper did tacking for her, he borrowed the cardboard shield.
Dumas further testified that even Foreman David Daigle once
borrowed the cardboard shield when he did some tack welding
where she was working. Dumas was asked and she testified:

Q. Did Mr. Dave Daigle ever see you use your [card-
board] shield?
A. All the time. That is all I had.

Finally, Dumas testified that Sheetmetal Department Foreman
Jesse Caston worked around her on platen 10; Caston saw her
using the cardboard shield but said nothing to her about it.
Again, Daigle did not testify; Caston testified for Respondent,
but he did not deny this testimony by Dumas.
Respondent called several main yard supervisors to testify
that anything less than the full-face shield was unacceptable,
except that the leather shield was acceptable for tight places.
This testimony, however, does not detract from the fact that
there is undisputed testimony that Pipe Department Foremen
Daigle, Mullins, and Mallini allowed Armstrong, Dumas, and
Moran to use lesser welding shields while doing tack welding.
LeFort denied it, but I do not believe that Armstrong was lying
when he testified that the cut-down shield was the only welding
shield that he used since he first came to work for Respondent.
I credit Armstrong over LeFort on this point. Finally, Moran’s
testimony that he took a test for a welder’s certification using a
cut-down shield is not denied, and I found it credible, and com-
pelling.521 In summary, I find that Armstrong used only the cut-
down shield at the main yard before he was transferred to the
Westwego yard, and his supervisors there knew it.

521 If Moran was not issued a welding certification in 1994, Respon-
dent could have easily proved it. If Moran was issued a certification,
the official who tested him could have been produced to deny, if untrue,
Moran’s testimony that he took the test with a cut-down shield. On
brief, Respondent levels an (unsupported) attack against Moran’s
credibility, but it offers no explanation of why it did not produce evi-
dence to deny his testimony.
Armstrong’s Discharge at Westwego—The General
Counsel’s Evidence
After Armstrong’s transfer to Westwego he continued to
wear prounion insignia, as two of his supervisors, General
Foreman Luttrel and Foreman Petticrew, acknowledged when
they testified. Armstrong further testified that he used the cut-
down mask on the few welding assignments that he received at
Westwego before the date of his discharge; he testified that
some of that welding was in the presence of Luttrel, General
Foreman Barber and Foreman LaSalle.
Armstrong testified that at Westwego Luttrel and Heaps gave
him most of his assignments; others were made by engineers in
the area, the names of whom Armstrong did not know. On Sep-
tember 9, according to Armstrong:

He [Luttrel] informed me that management wanted
him to come down a little harder on us, meaning the four
pipefitters who had been put onto his—on his time sheet.
But he also told me that as long as we did the different
chores that we were given that he saw nothing else that he
could do, as long as we did what he told us.

Armstrong testified that, later in the day when he asked to take
a break because he was becoming overheated, Luttrel told him
that: “I had better hope the Union gets in so that they can pro-
tect my job for me.” Based on this testimony by Armstrong,
paragraph 25(a) of the first complaint alleges that Luttrel
unlawfully threatened Armstrong. Luttrel (vol. 83) denied this
testimony by Armstrong, but I found Armstrong credible on
this point. I conclude that Respondent, in violation of Section
8(a)(1), by Luttrel, on September 7, 1993, threatened its em-
ployees with discharge because they had aided or assisted the
Union.
September 9 was Luttrel’s last day as the direct supervisor of
Armstrong. On September 10, Luttrel was replaced by Foreman
Frank Guerrera who gave Armstrong the assignment to tack
weld the railing on the stairs to the platform (again, in an open
area). According to Armstrong, as he did the welding:

Frank Guerrera came up and tapped me on the shoul-
der and informed me that Devon Barber, the general fore-
man, did not want me to use the welding shield that I was
using. So I told him, “okay,” and I went and put the weld-
ing shield that I was using up.

Armstrong further testified that at that point it began to rain,
and all employees were told to leave for the day. Armstrong
testified that as he was leaving the premises, Guerrera came to
him and asked him to come to the office, “and sign a written
citation [that had] to do with the shield that I had been using.”
Armstrong testified that he responded to Guerrera that he was
already signed out and asked if the matter could wait until the
next workday, Monday, September 13. Guerrera said that it
could. Armstrong denied that Guerrera attempted to hand him a
warning notice on September 10.
Armstrong testified that when he got home on September 10,
he made two telephone calls back to the plant. In the first, he
spoke to Paul Jones, a nonsupervisory inspector in Respon-
dent’s safety department. In the second, he told Barber that
Jones had just told him that cut-down shields were permissi-
AVONDALE INDUSTRIES

1429
ble.522 Armstrong testified that Barber replied that “we would
talk about it Monday.”
Armstrong further testified that on Monday, September 13,
he was approached by Foreman Petticrew who gave Armstrong
a warning notice that had been signed by Barber and Guerrera.
The box for the Avondale Employees’ Guide’s major offense-
23 (“Deliberate violations of safety, security or plant protection
regulations.”) is checked. In both the spaces for the time of the
offense and for the time of issuance of the warning notice is
written “9–10–93—1:00 p.m.” The text of the warning notice is
simply the text of major offense-23. In the “Employee Com-
ment” section of the copy that was received in evidence is writ-
ten: “Refused to Sign.—D.B.” (Armstrong testified that Pet-
ticrew did not ask him to sign the warning notice and that the
entry of “Refused to Sign.—D.B.” was on it when Petticrew
handed the warning notice to him.)
Armstrong testified that he was assigned to clean restrooms
on September 13. About 11:30 a.m. he was again approached
by Petticrew. Petticrew told Armstrong that he was discharged;
when Armstrong asked why, Petticrew replied that he was
“probably” being discharged for “the incident on Friday.” Arm-
strong asked for a further explanation, but Petticrew would say
nothing more. Armstrong further testified that he asked Pet-
ticrew if he could see Barber or Heaps; Petticrew replied that
neither Barber nor Heaps wanted to see him. Armstrong then
left the premises.
On cross-examination, Armstrong acknowledged that on
September 10, for part of the time that he was doing the tack
welding on the stairs, he did not have the shield strapped on his
head; he held it with one hand while he operated the welding
device (a “whip”) with another.
Armstrong’s Discharge at the Westwego Yard—Respondent’s
evidence
Guerrera did not testify. Petticrew (vol. 85) testified that at
some point before September 13, he saw Armstrong doing
some tack welding on a dock.523 At the time Armstrong was
using a hand-held welding shield that was much smaller than
the cut-down shield that Armstrong claimed to have used
throughout his employment with Respondent; Petticrew testi-
fied that the hand-held shield that Armstrong was using on the
dock covered only from just above the level of his eyes to his
mouth-line. Petticrew testified about the hand-held shield that
Armstrong was using: “It was completely covered with duct
tape.” Petticrew testified that at the time he told Armstrong that
the hand-held shield was not approved and he should not be
using it. Armstrong agreed and later, when Petticrew came back
to the dock, Armstrong was using a full-face shield to complete
the tack-welding job. Petticrew acknowledged that he did not
give Armstrong an oral or written warning of discipline about
using an unauthorized welding shield.
Petticrew testified that Armstrong was assigned to his crew
for the first time on September 13. Petticrew further testified
that on that date General Foreman Barber called him to his
office and, “He [Barber] said he [Armstrong] had got a safety
violation citation, and Mr. Ronnie Johnson [the production
superintendent for Westwego] informed him we had to let him
loose because he had a tremendous citation prior of that one.”

522 Jones was called by Respondent and credibly denied that he told
Armstrong any such thing.
523 This was not pipefitting work; Armstrong was building a handrail
for the dock.
(Petticrew did not testify what he was referring to as “that
one.”) Petticrew testified that he then went to Armstrong and,
“I told him he was terminated. I had to terminate him because
he has—the write-up he had and it led back to the tremendous
write-up he had prior to it.” Petticrew testified that Armstrong
claimed that he was being discharged because of his union
activities and that the welding shield that had caused his dis-
charge had been “approved.” Petticrew asked Armstrong to
show him the shield, and Armstrong showed Petticrew the
hand-held shield that Petticrew had previously (on the dock)
told Armstrong not to use. Petticrew testified: “I said that
wasn’t safety-approved, OSHA approved and that. And also, I
told him I had seen him with the shield before that.”
On cross-examination, however, Petticrew was asked and he
testified:

Q. [By Mr. Lurye]: Sir, when Mr. Armstrong told you
on September 13 that he was written up for a welding
shield that was approved to be used, you didn’t say any-
thing to him to the effect of, “Hey, Ed, do you remember I
told you two weeks ago that wasn’t approved?”
A. No, I didn’t.

Petticrew did not dispute Armstrong’s testimony that, before he
told Armstrong that he was discharged, he gave the welding-
shield warning notice to Armstrong with “Refused to Sign”
previously entered.
On direct examination, Barber (vol. 74) testified that he saw
Armstrong using an unauthorized welding shield on September
10. Barber flatly denied that the shield was the cut-down shield
that Armstrong claimed in court to have used for years at the
main yard and claimed to have been using that day. Barber
described the welding shield that Armstrong was using on Sep-
tember 10 as being cut from a full-face shield, and he estimated
the dimensions at slightly smaller than those described by Pet-
ticrew. Barber denied that there was any strap (elastic or other-
wise) on the mask, and Barber testified that it could only be
hand-held. Barber made no mention of duct tape being on the
welding shield, as had Petticrew. Barber testified that he told
Armstrong to stop his work, and he then radioed Guerrera to
come to where he and Armstrong stood. When Guerrera ar-
rived, further according to Barber, “I pointed out the safety
violation that I had witnessed, and [I] instructed Mr. Guerrera
that it was in violation and I wanted a citation given to Mr.
Armstrong.” Further according to Barber, he and Guerrera went
to his office, and he drafted the warning notice that is quoted
above, and he gave it to Guerrera to attempt to give to Arm-
strong. Barber told Guerrera to deliver it to Armstrong, and
Guerrera left his office. Guerrera radioed back that Armstrong
was refusing to sign the warning notice. Barber ordered Arm-
strong to his office where Armstrong persisted in his refusal to
sign the warning notice. Barber testified that he then wrote
“Refused to Sign” on the warning notice and then gave a copy
to Armstrong.
Barber further testified on direct examination that he then
took one copy of the warning notice to the office of Westwego
Production Manager Johnson for routing to the human re-
sources department at the main yard. Barber testified that he
told Johnson that: “Mr. Armstrong was using a modified ver-
sion of the [approved, full-face] shield and he refused to sign
[the warning notice].” Johnson, further according to Barber,
made no comment at the time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1430
Barber agrees with Armstrong that Armstrong called him
later that afternoon and claimed that he had been told by some-
one at the main yard that a modified welding shield was per-
missible, and he replied that he and Armstrong would talk
about the matter on Monday, September 13.
Barber testified that early on September 13, Johnson told
him:

. . . that Personnel at the main yard had been contacted. Best I
can recall, he said he contacted them and informed them of
the citation that was given to Mr. Armstrong.
And he told me that Personnel was checking on the ci-
tation, and don’t take any action or don’t say anything to
Mr. Armstrong about the conversation on the shield.

Barber, however, did not testify that he had told Johnson that he
had told Armstrong that they would talk about the warning
notice again on Monday.
Barber testified that about an hour later Johnson called him
into his office and:

[H]e informed me that Personnel at the main yard indi-
cated that they had quite a number—now, he did not tell
me the number—of previous safety violations and cita-
tions against Mr. Armstrong. And that he had made the
decision to terminate Mr. Armstrong . . . [and to] go out
and inform him and clear him out. Get him out of the yard.

Barber further testified that he then told Petticrew that Johnson
had decided to discharge Armstrong because of his “safety
violations,” and that he ordered Petticrew to discharge Arm-
strong and escort him out of the yard.
On cross-examination, Barber was asked about his confron-
tation with Armstrong on September 10, and Barber testified:

Q. Didn’t Mr. Armstrong tell you that shields of the
kind that he was using were permitted in the main yard?

. . . .

[A.] THE WITNESS: Yes. . . .
Q. [By Mr. Morgan]: And he said he had used it for a
number of years in the main yard. Correct?
A. Best I can recall, he said he did. Yes.

Further on cross-examination, Barber was asked and he testi-
fied:

Q. [By Mr. Morgan]: But I understood you to tell them
that the rules don’t change because they have come from
the main yard to the Westwego Yard?
A. No. We don’t change any rules. In other words, we
just have to work productively or more productively. . . .

Finally, at one point on cross-examination Barber also testified
that he did not believe that prounion insignia such as that which
Armstrong wore indicated that an employee favored the selec-
tion of the Union as a collective-bargaining representative.
When asked to explain, Barber testified:

THE WITNESS: I wear stickers on my hat. We hire peo-
ple from—off the street that has stickers on their hats. And
it is various stickers; various slogans. It don’t mean that
that person or I am myself a supporter of whatever I am
wearing a sticker on. It might be just—and I know they do,
people do it—might just be some kind of practical joke or
something.
I mean, just because he has a union sticker on his hat
or whatever, it don’t indicate that he is a union supporter.
No.

As the finder of fact, I discredit Barber in portions of his testi-
mony as discussed below, and this obviously disingenuous
answer is part of the reason.
Johnson (vol. 82) testified that between 2 and 3 p.m. on Sep-
tember 10, Barber brought to him the above-quoted warning
notice to Armstrong and told Johnson that “Edward Armstrong
was using a homemade welding shield.” Johnson was asked
and he testified:

Q. And what did you do with this document after you
received it from Mr. Barber?
A. I looked at it and reviewed it and sent it on to the
main yard, called the main yard.

Johnson testified that usually when he received copies of warn-
ing notices to employees he would check their personnel files,
but he did not then have Armstrong’s personnel file. Julie
Bolden, manager of employment, is the first assistant to Human
Resources Department Vice President Ernest Griffin. Johnson
testified: “That Monday, I called the main yard. I think I talked
with Julie Bolden to look at his file and let me know what was
in there. . . . To look in his [Armstrong’s] file and see if there
were any previous write-ups.” Johnson testified that Bolden
called him back later in the morning. Johnson was asked and he
testified:

Q. [By Mr. Hymowitz]: Now, would you describe
what Ms. Bolden told you when you heard back from her.
A. She told me that he had previous safety write-ups,
and that he could be terminated.
Q. And what did you decide to do after you heard from
Ms. Bolden?
A. I decided to terminate him . . . because of the previ-
ous write-ups he had and working unsafe. I feel that work-
ing with a homemade welding shield is unsafe.

Johnson denied that there was any discussion with Bolden
about Armstrong’s prounion sympathies; in fact, Johnson de-
nied knowing of any prounion sympathies that Armstrong may
have held. Johnson further testified that during 1993 he walked
through the Westwego yard “[f]ive, six times a day, maybe
more,” and he regularly saw employees performing welding
tasks; he testified that he never saw a welding mask like Arm-
strong’s cut-down shield.
On cross-examination, Johnson further testified that Barber
told him that the shield that Armstrong was using was hand-
held and that it had been cut out of a standard full-face shield.
When Barber reasserted that he did not call Bolden until Sep-
tember 13, he was asked and he testified:

Q. Is there a reason you didn’t do it that afternoon [of
September 10]?
A. We had a rain-out day that afternoon. It was after
2:30, between 2:00 and 3:00 when he brought it up to me,
and it would have been too late that day to call the main
yard.
Q. Don’t they work in Personnel until about 4:00
o’clock, 5:00 o’clock?
A. I am not sure what the hours are. I really don’t
know. I would imagine they would be there.

Johnson was further asked and he testified:

AVONDALE INDUSTRIES

1431
Q. And how did that happen? Who called who?
A. I think I called Julie Bolden.
Q. Had you turned in the warning at that time?
A. I think it was turned in to Pam, Barry Heaps’ secre-
tary. It might have been going that way at the time. I am
not sure.
Q. Is it possible Ms. Bolden called you after she re-
ceived the warning?

. . . .

A. I don’t remember. I thought I had called her that
morning.

Johnson was further asked and he testified:

Q. Tell us that conversation [with Bolden], if you will,
please.
A. I asked her to look into Ed Armstrong’s file and see
if—what kind of records he had, if he had any write-ups,
attendance.

. . . .

Q. And what else?
A. That is about it. I don’t remember what else.
Q. After that conversation was over, did you subse-
quently talk to Ms. Bolden again?
A. Yes. . . . She called me back.
Q. Tell us as best you can who said what during that
conversation.
A. She had told me that he had previous write-ups,
safety write-ups, and that he could be terminated.
Q. Did she say anything about his attendance?
A. I don’t recall if she did.
Q. Did she say anything about any other warnings?
A. No. Just [that] he had previous safety write-ups.

Johnson acknowledged that Bolden did not tell him the number
of Armstrong’s prior safety warning notices, their dates, or the
nature of the allegedly unsafe conduct for which Armstrong had
been previously warned.
Further on cross-examination, Johnson acknowledged that he
gave an affidavit to a Regional Office investigator on February
1, 1994. In that affidavit, Johnson mentions only one call with
Bolden; Johnson states that it occurred on September 13; and
Johnson states that Bolden called him.524 As read to Johnson for
confirmation (by both the General Counsel and Respondent’s
counsel), Johnson’s affidavit first states: “The following Mon-
day, I received a call from Julie [Bolden] (in Personnel) who
told me that Armstrong should be terminated because of previ-
ous violations he had in the main yard.”
On redirect examination Johnson testified that the “should”
in the affidavit should have been “could.” Johnson testified:
“That has got an error when I was proofreading it, I guess. It
should be, ‘could be terminated.’”
On re-cross-examination Johnson was read the next sentence
of his affidavit, and he testified:

Q. Sir, isn’t it correct that in your affidavit, immedi-
ately following that sentence, you say, “I then conveyed
this message to Devon Barber. I was not further involved

524 Respondent stipulated that another affidavit that Johnson gave
Respondent’s counsel on the issue also does not mention his calling
Bolden about Armstrong.
in the discharge of Edward Armstrong.” . . . Do you agree
that appears as I read it to you?
A. Yes. . . .
Q. What I am asking you, sir, is: Isn’t it correct that the
message you conveyed to Devon Barber was that Mr.
Armstrong should be fired.
A. No.
Q. Did you leave it to Mr. Barber’s discretion as to
whether Mr. Armstrong should be fired?
A. No.
Q. You told him that he should be fired, didn’t you?
A. Yes. I told Devon Barber that the man should be
fired. Yes. . . .
Q. Excuse me. The sentence I read to you: “I then con-
veyed this message to Devon Barber.” Is that incorrect,
too?
A. I conveyed the message to Devon Barber that I
made the decision to terminate him.
Q. Well, your affidavit doesn’t say that, does it?
A. No, it doesn’t.

Further cross-examination of Johnson on the point was persis-
tently interrupted by baseless objections by Respondent’s coun-
sel, and I was constrained to stop the debacle in this manner:

Q. Would you agree with me that your affidavit says
that Julie Bolden told you that Ed Armstrong should be
fired and that you conveyed that message to Mr. Barber?
Would you agree that that is what it says?
MR. HYMOWITZ: Objection, Your Honor. He is now
paraphrasing an affidavit. It is an improper use of the affi-
davit. He can ask him what precisely was in the affidavit.
And this has been asked and answered already, Your
Honor, in addition to that.
JUDGE EVANS: Overruled. He is asking him if that
would be a fair reading of the two sentences together. I
think it is proper.
[To the witness:] Would a fair reading of that testi-
mony—of that statement, those two sentences, be that
Bolden told you that Armstrong should be fired, and you
turned around and told Devon Barber that Julie Bolden
said that Ed Armstrong should be fired?
MR. HYMOWITZ: Objection to the form of the question,
Your Honor. Should this be a fair reading? It is specula-
tion. Different laymen could read different things, Your
Honor.
MR. LURYE: I object to that [Respondent’s Counsel’s
leading objection], Judge.
JUDGE EVANS: All right. I will say for the record, I
think that would be a fair reading of the statement.
I remain of that view.

Armstrong’s Discharge—The General Counsel’s Evidence of
Disparate Treatment
On rebuttal, as evidence of disparate treatment of Armstrong,
the General Counsel introduced several warning notices that
had been issued to other employees.
On March 10, 1994, Barber issued to Westwego employee
Raymond Morris (employee 1392) a warning notice under the
Avondale Employees’ Guide’s major offense-23 (again, “De-
liberate violations of safety, security or plant protection regula-
tions”). The text of the notice is: “Failure to wear grinding
shield while grinding. Has had a verbal [oral] warning.” the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1432
General Counsel contends, of course, that Armstrong had re-
ceived no prior oral warning of discipline before Barber issued
him a warning notice for using an unauthorized welding shield.
Armstrong was discharged upon being issued his third
safety-rule-violation warning notice in 12 months, two of which
were issued under major offense-23, one of which was issued
under general offense-12. On rebuttal, however, the General
Counsel further introduced evidence that other employees re-
ceived three or more general offense-12 (safety) warning no-
tices without being discharged, or they received (two or more)
major offense-23 or major offense-2 (“Intentional negligence”)
warning notices without being discharged; to wit:

43. On August 13, 1993, Barber, himself, issued to
Westwego employee Fred Miller (employee number
12937) a warning notice under the Avondale Employees’
Guide’s Major Offense-2 (“Intentional negligence, ineffi-
ciency or failure to complete job assigned.”) for allowing
the boom of a crane he was operating to hit the boom of
another crane, “knocking handrails off his crane.” Barber’s
warning notice to Miller concludes: “Final Notice.” On
December 2, 1993, Barber issued to Miller a Major Of-
fense-23 warning notice for negligently operating a crane
and allowing cables to strike the ground near Petticrew,
Johnson and Barber, himself. The warning notice con-
cludes: “This Is The Final Notice.” On December 4, 1993,
Barber issued Miller a second Major Offense-23 warning
notice, and his third Major Offense safety warning notice
in 12 months, for failing to sound his horn while conduct-
ing a lift. Barber notes that Miller had been “informed by
Paul” [apparently Paul Jones, who is mentioned above],
safety inspector, that he had to blow his horn when lifting
& transporting a load. Hayward LaSalle [also] told him
this procedure. On December 7, 1993, Barber issued
Miller another Major Offense-23 warning notice for drop-
ping a load while operating a crane. The record does not
indicate whether Miller was discharged this, Miller’s third
Major Offense-23 warning notice, and his fourth Major
Offense safety warning notice, in 12 months.
44. In June 1991 Paint Department employee number
325 (name illegible) was issued two Major Offense-23
warning notices for leaving out paint thinner and wearing
a beard. The employee was not discharged after this sec-
ond Major Offense safety warning notice because, on Sep-
tember 12, 1991, he was issued his third Major Offense-23
warning notice for simultaneously smoking and painting.
45. In October 1991 and January 1992, Paint Depart-
ment employee number 2983 (name illegible) was issued
three Major Offense-23 warning notices, two for not wear-
ing safety glasses and the third for power-tooling without
goggles or a face-shield. (Again, he obviously was not dis-
charged upon the occasion of his second Major Offense
safety warning notice, as was Armstrong.)
46. In the period from December 30, 1991, through
October 20, 1992, Paint Department employee number
12062 (name illegible) was issued five General Offense-12
warning notices for not having proper face protection
while spraying, painting with an unsafe hand light, power-
tooling without eye protection and twice for not wearing a
hardhat. (The third in this series of safety warning notices
was marked “Final Notice.”) This employee was still not
discharged, as shown by several subsequent warning no-
tices in the file for other misconduct.
47. During three months of 1991, Paint Department
employee number 9656 (name illegible) was issued three
Major Offense-23 warning notices, and he obviously was
not discharged upon the occasion of his second.
48. Between June 7 and October 19, 1991, Paint De-
partment employee Rodney Lee (employee number 769)
was issued three Major Offense-23 warning notices for not
having proper safety equipment (and, obviously, he was
not discharged upon the occasion of his second Major Of-
fense-23 warning notice).
49. Between July 31, 1990, and October 10, 1991,
Paint Department employee number 1534 was issued four
General Offense-12 warning notices for safety violations
and one Major Offense-23 warning notice for another
safety violation. Thereafter, on December 30, 1991, this
employee was issued another Major Offense-23 warning
notice for not wearing safety glasses after “several verbal
warnings.”
50. Between February 11, 1991, and January 6, 1992,
Paint Department employee number 1864 was issued two
General Offense-12 and one Major Offense-23 warning
notices for not wearing safety glasses. This employee was
still not discharged, as reflected by subsequent warning
notices that are in evidence.
51. On June 11 and August 23, 1991, Paint Depart-
ment employee number 9656 (name illegible) was issued
Major Offense-23 warning notices for not having, or us-
ing, safety equipment; thereafter, on September 6, 1991,
this employee was issued his third Major Offense-23
warning notice, so he obviously was not discharged after
the first two.
52. On July 27, 1990, and May 1, 1991, Paint Depart-
ment employee Billy Baldridge (employee number 1095)
was issued General Offense-12 warning notices for work-
ing without safety glasses. On June 5, 1991, this employee
was issued a Major Offense-23 warning notice for wearing
a beard. Baldridge was still not discharged, a fact reflected
by subsequent warning notices that are in evidence.
53. Between November 12, 1990, and September 23,
1991, Electrical Department employee Nena St. Julien was
issued three General Offense-12 warning notices for not
wearing various types of safety equipment. St. Julien was
still not discharged, a fact that is shown by a Major Of-
fense (unnumbered, but marked “Other”) warning notice
that she was issued on January 29, 1992, for wearing
“Loop-type earrings in a production area.”
54. Between May 21, 1990, and May 8, 1991, Paint
Department employee number 401 (name illegible) was is-
sued four General Offense-12 warning notices for not
wearing various types of safety equipment.
55. On June 4 and June 8, 1990, Paint Department em-
ployee Edward Morgan (employee number 1778) was is-
sued two General Offense-12 warning notices for not
wearing safety glasses. On July 11, 1990, Morgan was is-
sued a Major Offense-23 warning notice, also for not
wearing safety glasses. On March 5, 1991, Morgan was is-
sued another General Offense-12 warning notice for not
wearing safety glasses, and on April 5, 1991, Morgan was
issued another Major Offense-23 warning notice for not
wearing eye protection while power-tooling. On May 1,
1991, Morgan was issued his third Major Offense-23
warning notice (and sixth safety warning notice) in 12
AVONDALE INDUSTRIES

1433
months. From that point through October 8, 1991, Morgan
was issued four other warning notices, the last of which
was another Major Offense-23 warning notice for failing
to wear safety glasses. (Thereafter, on October 23, 1991,
Morgan was issued a warning notice for absenteeism, thus
showing that he still had not been discharged for his mul-
tiple safety violations.)
56. On September 17, 1990, and August 13, 1991, re-
spectively, Paint Department employee Irvin Session (em-
ployee number 10660) was issued Major Offense-23 warn-
ing notices for leaving paint cans open overnight and not
wearing safety glasses. On September 12, 1991, Session
was issued his third Major Offense-23 warning notice in
12 months, again for not wearing safety glasses.
57. Between December 2, 1993, and May 24, 1994,
Shipfitting Department employee Fitzgerald Marcey (em-
ployee number 676) was issued three warning notices for
running in a production area; the last of these safety warn-
ing notices concluded: “Continue to do so will result in
your termination,” thus indicating that the employee was
not discharged upon the occasion of his third safety warn-
ing notice in a year.
58. Between June 20 and July 31, 1990, Paint Depart-
ment employee Wade Kerr was issued three General Of-
fense-12 warning notices for not wearing or using safety
equipment; he was still not discharged, a fact reflected by
several subsequent warning notices that are in evidence.
59. Between October 23, 1990, and June 21, 1991,
Paint Department employee Ronald Brady was issued
three General Offense-12 safety warning notices, but he
was still not discharged according to subsequent warning
notices in evidence.
60. In a three-month period during 1991, Paint De-
partment employee Corey Holmes (employee number 223)
was issued three Major Offense-23 warning notices for
safety violations, but he was still not discharged as re-
flected by the fact that he received several more warning
notices that are in evidence, including a 1994 General Of-
fense-12 safety warning notice.
61. Between May 1, 1991, and February 5, 1992, Paint
Department employee Martha Cox (employee number
2013) was issued four Major Offense-23 safety warning
notices for not wearing or using various items of safety
equipment. Cox was still not discharged, as reflected by
several subsequent warning notices in evidence.

As further evidence of disparate treatment of Armstrong, the
General Counsel relies on warning notices that Respondent
introduced in its case; to wit:

20. Between July 31, 1990, and June 21, 1991, Paint
Department employee Harold Randle (employee number
1534) was issued four safety warning notices, the third of
which is under the Avondale Employees’ Guide’s Major
Offense-23. Randle was discharged in 1993 (for insubor-
dination), but not before he was issued one more Major
Offense-23 safety warning notice on December 30, 1991.
21. Respondent also introduced the ASI-22 (discharge)
form of Paint Department employee G. Hernandez (em-
ployee number 2983). The stated basis for the discharge is
“Employee has been given (4) citations for safety viola-
tions. Were given on 10/15/91, 1/8/92, 1/28/92 and
3/30/92.” Evidently, Hernandez was not discharged after
his third warning notice for safety violations as was Arm-
strong.
Armstrong’s Discharge at the Westwego Yard—Conclusions
As is undisputed, after Armstrong’s transfer to Westwego he
continued to wear prounion insignia. Johnson claims to have
made the decision to discharge Armstrong, and Johnson (who
testified that “[f]ive, six times a day, maybe more” he walks
through the Westwego yard) would have seen Armstrong wear-
ing such prounion insignia. I find that he did. Moreover, on
September 9, General Foreman Luttrel told Armstrong that he
had been instructed to “come down a little harder” on the four
transferred pipefitters, and Luttrel further told Armstrong,
unlawfully, that he would be discharged if the Union were not
selected as the employees’ collective-bargaining representative.
Finally, Westwego Foreman Wheeler repeatedly told Menier
that at least some of the employees who had been transferred to
Westwego from the main yard were there to be discharged
because of their known prounion sympathies. I therefore find
and conclude that the General Counsel has presented a prima
facie case that Armstrong’s discharge was unlawful, and the
burden shifts to Respondent to demonstrate by a preponderance
of the evidence that it would have taken the same actions
against Armstrong even in the absence of his known protected
activities. Respondent’s defenses must therefore be examined.
When Johnson was first asked on direct examination what he
did with the warning notice that Barber brought to him on Sep-
tember 10, Johnson replied, “I looked at it and reviewed it and
sent it on to the main yard, called the main yard.” Then Johnson
testified that he called the main yard on September 13. The
truth, I find, was Johnson’s first answer; he only “sent it on to
the main yard”; Johnson did not call the main yard on either
September 10 or September 13. I do not believe Johnson’s self-
serving testimony that, although Armstrong had been at West-
wego for 38 days, he had not received Armstrong’s personnel
file (with his prior warning notices), and that is why he called
Bolden on September 13. Also, as quoted, at one point Johnson
testified that he called Bolden to ask only about Armstrong’s
prior warning notices for absenteeism; as he did so, he showed
me that he was foisting about for a justification for the dis-
charge. More importantly, Johnson rendered himself incredible
as he testified on cross-examination that, on September 13, “I
think I called Julie Bolden. . . . I don’t remember. I thought I
had called her that morning.” Either way, if he had called
Bolden or Bolden had called him, Johnson would have remem-
bered it, and such hesitation, reservation and qualification
would not have appeared in Johnson’s testimony. Finally on
this point, Johnson was plainly lying when he testified that he
did not call the personnel department office on September 10
only because it was raining. I do not believe that Johnson called
Bolden at all.525 I find that, as admitted in Johnson’s quoted
affidavit, Bolden called Johnson and told him that Armstrong
should be discharged, and Johnson, in turn, told Barber to dis-

525 In an attempt to corroborate Johnson, Barber testified that early
on September 13 Johnson told him not to speak to Armstrong about the
warning notice because he had a call in to personnel. This testimony
was undoubtedly false; Barber had not told Johnson of Armstrong’s call
back to the plant on September 10, and Johnson had no reason to be-
lieve that Barber would be discussing the warning notice with Arm-
strong again.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1434
charge Armstrong. Johnson would not have said such in his
affidavit if it had not been true.526
On its face, the warning notice that Barber had drafted for
Armstrong showed nothing unusual. Manager of Employment
Bolden, a first assistant to an executive in Respondent’s central
office, would not have acted upon it unless she had knowledge
of Armstrong’s prounion activities and background, and Simp-
son’s animus toward it. The totality of the circumstances, in-
cluding Bolden’s failure to testify, impels me to so find.
Petticrew testified that he saw Armstrong using a nonap-
proved welding shield, but he did nothing about it. Petticrew
testified, several times, that the welding shield that he saw was
completely covered with duct tape, and it was much smaller
than Armstrong’s cut-down shield. Barber also described the
shield that Armstrong was using as much smaller than Arm-
strong’s cut-down shield, but he made no mention of duct tape.
Both described the shield that Armstrong was using as one that
could only be hand-held. I do not believe either Petticrew or
Barber. No welder would have only a hand-held mask; any
welder would know that, for some jobs, he would need two
hands. Moreover, the duct tape described by Petticrew appears
to be nothing more than his imagination, or perhaps his mem-
ory of being shown the above-described cardboard shield dur-
ing pretrial. The mendacity of Barber was demonstrated in his
testimony that he believed that an employee did not necessarily
have prounion sympathies just because he wore prounion insig-
nia; other evidence of Barber’s mendacity is found in Melton’s
case where he gave extensive testimony about witnessing mis-
conduct by Melton, but Barber’s testimony was so at odds with
the testimony of Respondent’s other witnesses that Respondent
does not even mention Barber’s testimony about Melton on
brief. I find that Armstrong was using the cut-down shield that
he had used for years at the main yard in the presence of super-
visors there.
As I have mentioned, it is undisputed that Respondent’s su-
pervisors permitted Moran to take a welding-certification test
with shield that was essentially identical to Armstrong’s, and I
found credible Dumas’ testimony that for 2 years she used a
tape-covered welding shield at the main yard (even though that
shield, itself, was flammable). More importantly, Armstrong’s
testimony that he had used the cut-down shield in the presence
of LeFort and Mallini without warning was credible. Arm-
strong, therefore, was issued a warning notice, and ultimately
discharged, for doing what had been permitted by his supervi-
sors at the main yard and a supervisor at Westwego, Pet-
ticrew.527 Also, Barber testified that “[w]e don’t change any
rules” at Westwego, and he admitted that Armstrong told him
that he had been permitted to use the cut-down shield at the
main yard; nevertheless, Barber issued the warning notice to
Armstrong.

526 See Alvin J. Bart & Co., 236 NLRB 242 (1978). Neither on brief
nor reply brief does Respondent mention Johnson’s affidavit about
which it made so many arguments, and so many objections, at trial. On
the other hand, Respondent argues strenuously that affidavit statements
and omissions are controlling in the case of alleged discriminatee Jo-
seph Melton, and in the cases of other alleged discriminatees, as de-
scribed infra.
527 I discredit Petticrew’s testimony that he had told Armstrong not
to use a smaller welding shield; if he had, he would have told Arm-
strong on September 13 that he had warned Armstrong about using it.
Petticrew admitted on cross-examination that he did not.
I find that Respondent issued a warning notice to Armstrong,
and then discharged him on the basis of that warning notice,
even though the conduct for which the warning notice was
issued was known to have been permitted at the main yard for
years. The September 10 warning notice to Armstrong being
completely invalid, Respondent, I further find, has not shown
that it would have warned and discharged Armstrong even in
the absence of his known protected activities. Without more,
therefore, I would conclude that by discharging Armstrong
Respondent violated Section 8(a)(3). There is, however, more.
I find further evidence of unlawful discrimination against
Armstrong in the cases of disparate treatment that have been
proved by the General Counsel. As demonstrated by the listing
above, a significant number of employees were permitted, in
the 1990–1994 period, to accumulate three presumably valid
safety warning notices, or two major offense warning notices,
within 12-month periods, without being discharged; Armstrong,
however, was discharged when he had accumulated only two
valid, major offense, safety warning notices (those of October
6, 1992, and July 13, 1993). A specific example of such dis-
crimination against Armstrong lies in Barber’s treatment of
Westwego employee Miller, before and after the discharge of
Armstrong. On August 13, Barber issued to Miller a major
offense warning notice for allowing the boom of a crane he was
operating to hit the boom of another crane, “knocking handrails
off his crane.” Barber’s warning notice to Miller concludes:
“Final Notice.” Then, on December 2, Barber issued to Miller
another major offense warning notice for negligently operating
a crane and allowing cables to strike the ground near Petticrew,
Johnson, and Barber, himself. The warning notice concludes:
“This Is The Final Notice.” On December 4, or 2 days later,
Barber issued Miller a third major offense safety warning no-
tice in 12 months for failing to sound his horn while conducting
a lift. Then, on December 7 (or 2 more workdays later), Barber
issued Miller his fourth major offense safety warning notice,
and his third major offense-23 warning notice, in 12 months for
dropping a load. If Miller was then discharged, Barber was not
recalled in surrebuttal to so testify. Assuming, however, that
Miller was discharged on the occasion of his fourth safety vio-
lation, he certainly was not discharged on the occasion of his
third. (Also, Millers’ first or second major offense could well
have killed or injured someone, including Barber.)
Further evidence of discrimination by Barber against Arm-
strong lies in the March 10, 1994 warning notice that Barber
issued to Westwego employee Raymond Morris. That warning
notice also was issued under the Avondale Employees’ Guide’s
major offense-23, and it states: “Failure to wear grinding shield
while grinding. Has had verbal [oral] warning.” Morris could
well have been blinded by grinding with no shield the first time
that he did it, but then he got from Barber only an oral warning,
according to the text of the written warning notice.528
I therefore find that Respondent has not shown that it would
have discharged Armstrong even in the absence of his protected
activities (including protected activity of displaying his proun-
ion sign at the June 21 Bossier speech). Accordingly, I con-

528 On brief, Respondent argues to be controlling the fact that Arm-
strong’s supervisors categorized Armstrong’s last two safety-rules
violations as deliberate. This argument, again, assumes the validity of
the welding-shield warning notice; moreover, Johnson testified that he
knew nothing of the number or nature of the warning notices that Arm-
strong had received when “he” decided to discharge Armstrong.
AVONDALE INDUSTRIES

1435
clude that by discharging Armstrong Respondent violated Sec-
tion 8(a)(3) of the Act.529
(For possible purpose of review, I enter here another credi-
bility resolution: Barber testified that on September 10 he gave
the warning notice to Guerrera and told Guerrera to give it to
Armstrong. Barber further testified that Guerrera radioed him
that Armstrong would not accept the warning notice, and Bar-
ber told Guerrera to bring Armstrong to his office where he told
Armstrong that if he did not sign the warning notice, he would
write “Refused to Sign” on it. Armstrong, however, testified
that Guerrera only asked him to come to the office at the end of
the (rain-out) day and that Guerrera did not have the warning
notice with him. I do not believe Barber’s testimony on this
point, and I do not believe that Armstrong went to Barber’s
office on September 13. Employees regularly refuse to sign
warning notices, and the threat to write “Refused to Sign”
would have been a threat of nothing. Guerrera did not testify,
and Armstrong was credible in his testimony that Guerrera did
not have the warning notice when Guerrera asked him to come
to the office on September 10. Armstrong was further credible
in his testimony that “Refused to sign” was already on the
warning notice when Petticrew presented it to him on Septem-
ber 13, something that Petticrew did not deny.)
b. Joseph Melton
Joseph Melton (vol. 12) was a pipefitter and pipe-tester at the
main yard until July 30, 1993, when he was transferred to the
Westwego yard. On August 23, Melton was discharged while
working at the Westwego yard. Paragraphs 110 and 116 of the
second complaint allege, respectively, that by transferring and
discharging Melton Respondent violated Section 8(a)(3). The
General Counsel contends that Respondent selected Melton for
transfer to Westwego (along with pipefitters Armstrong and
Gonzalez and welders Walter Brown and Charles Fleming), and
discharged Melton, because of his known or suspected union
activities and expressions of sympathy which included his mak-
ing comments favorable to the organizational effort at employer
campaign meetings. The General Counsel further alleges that,
in violation of Section 8(a)(1), Melton was instructed not to
speak about the Union while working at the main yard. The
General Counsel further contends that a supervisor admitted to
another employee that Melton was transferred and discharged
because of his union activities. Respondent denies that the in-
struction to Melton and the supervisor’s admission to another
employee occurred. Respondent further answers that its super-
visors had no knowledge of any union activities or sympathies
of Melton at any relevant time, that Melton was transferred to
the Westwego yard solely because of business necessity, and
that Melton was discharged because, when he was working in a
flat-bottomed boat on the Mississippi River, he deliberately
disobeyed a foreman’s order to wear a life jacket. The General
Counsel replies that the business-necessity defense asserted for
the transfer was a pretext as shown by the fact that Melton was
never used at Westwego as a pipefitter or pipe-tester; the Gen-
eral Counsel further replies that the defense asserted for the
discharge is pretextual because any violation of safety rules by

529 There is no evidence to contradict Respondent’s testimony that on
June 21 Simpson ordered Armstrong’s discharge upon the occasion of
his next offense, and there is no dispute that he was not discharged on
the occasion of his July 13 safety warning notice. The General Counsel,
however, was not required to prove the negative, why Armstrong was
not then discharged.
Melton was unintentional; alternatively, the General Counsel
replies that Melton was treated disparately because other em-
ployees who engaged in safety violations were issued lesser, or
no, discipline. Ultimately, I find and conclude that Melton was
both unlawfully transferred and discharged.
At the main yard, Melton reported directly to Foreman
Timmy Benoit. Melton was asked about his duties as a pipe-
tester, and he testified:

The first thing you do when you start to test the sys-
tem, you put air pressure on it. . . . You make up what is
called a test connection. All the ships—in fact, the whole
shipyard—has a community air supply which has ap-
proximately 120 pounds of air pressure. In other words,
there’s air manifolds all over the yard. . . . You make up a
test connection and you break a flange or wherever you
need to get into this system, you break some sort of system
to put air in it, to test it with air. . . . After you put the air
on it, then you go along with soap and water and you
check all your joints to make sure you don’t have any
leaks. If you have any leaks, like weld leaks, well, then,
the pipe testers has a welder working with them that welds
up the leaks.
And once you get all the air leaks stopped, then you
fill the system with whatever you are going to use to test it
with—normally water. . . . Once you test it with air, then
you put hydraulic oil in it and pressure it up. You also
have hydrostatic, where you put water in it and pressure it
up. It depends on what kind of tests they call for for that
specific system.

Melton testified that he performed such tests on systems from
50 to 500 feet in length; with pipes from half-inch to 30 inches
in diameter. Melton’s rate of pay as a first-class pipe-tester was
$10. per hour, one of the higher wage rates that is mentioned at
trial. Benoit acknowledged on cross-examination that Melton
was one of his most skilled pipe-testers.
Melton testified that in early June an employer campaign
meeting was conducted in a conference room near Simpson’s
office. Present were many pipe department employees and su-
pervisors including Whittington, Benoit, LeFort, and Oscar
Rabestein. Whittington conducted the meeting and read a
statement, after which he entertained questions. Melton testi-
fied:

And someone asked him [Whittington] about raises,
and he said, “Well, we don’t have any money and we
don’t have any new contracts.”
And I said, “Well, if you didn’t have so many vice
presidents, then you wouldn’t have that problem.”
He said, “Well, I don’t have anything to do with that.”
And I said, “Well, if you got rid of the vice presidents,
you would have enough money to give everybody a raise.”

Whittington did not deny this testimony by Melton.
Melton testified that about June 30, he was working on board
a ship under construction with two other pipe-testers (whom he
did not name) when Foreman Oscar Rabestein walked by. Ac-
cording to Melton:

I was doing my job testing the systems, but I was talk-
ing with them about the Union benefits and wages and job
descriptions, things like that, you know. . . . Oscar came
up on us and told me that I wasn’t—that I couldn’t talk to
anybody about anything union while I was working. And I
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1436
explained to him that I was doing my job and I hadn’t
stopped them from doing their job; they were doing their
job as well. And with that, he left.

Based on this testimony by Melton, paragraph 47 of the second
complaint alleges that Rabestein discriminatorily promulgated a
no-solicitation rule. Rabestein denied this testimony by Melton,
but I found Melton credible on the point. I therefore find and
conclude that, in violation of Section 8(a)(1), Respondent, by
Rabestein, about June 30, promulgated a rule discriminatorily
precluding its employees from talking about the Union during
working time.
(1) Melton’s transfer to the Westwego yard
Melton further testified that on July 30 he was approached
by Foreman Benoit and told that he was being immediately
transferred to Westwego. According to Melton:

He [Benoit] said, “Man, I don’t know what is going
on. I talked to everybody to try to get this stopped and eve-
rybody told me the same thing: It came from higher up and
there wasn’t a thing they could do about it.”
I said, “Well, Timmy, what am I going to be doing
over there?”
And he said, “I have no idea. Nobody don’t know that,
either.”
And he said, “Look, I talked to all the people. I talked
to [Carl (Black)] Abadie; I talked to John Whittington. I
talked to everybody trying to stop this transfer, and they
all told me the same thing: There wasn’t nothing they
could do about it. It came from higher up.”
I said, “Well, Timmy, how about if I go talk to them?”
He said, “Fine.”

Further according to Melton:

I left and went to Black Abadie’s office, and I asked
him, “Black, I said, What is going on? Why am I being
transferred?” He said, “I don’t know. It came from up
above. There ain’t nothing I can do about it.”

Benoit denied the above testimony; again, Abadie did not tes-
tify.
Melton testified that at the time he was transferred, there
were six ships in the area still under construction; 5 pipe-testing
crews, with from 8 to 15 pipe-testers each, had been working
on those ships.
As found in Armstrong’s case, when Melton, Armstrong, and
Gonzalez arrived at Westwego, they were met by Westwego
Vice President Heaps and engineer Sigsworth who said they did
not know why pipefitters and pipe-testers were being sent to
them because there was no pipe-testing or pipefitting work for
them to do. During their first day at Westwego Melton and the
other pipe department transferees were assigned jobs of moving
furniture and cleaning. Later, Melton and Armstrong were put
to work building railings and cutting up metal skids that had
been dragged from the Mississippi River. Melton did no work
akin to that which he had done as a pipe-tester at the main yard.
As discussed above in the case of discriminatee Eddie John-
son, Johnson was hired by Respondent on August 27, or 4 days
after Melton was discharged. Johnson was assigned to work for
Benoit at the main yard, as Melton had done before he was
transferred to Westwego. Johnson testified (vol. 57) that he had
never met Melton, but at some point after he was hired, Benoit
mentioned Melton to him. According to Johnson:

Well, Timmy told me: “Eddie, personally, you know, I
don’t care if the Union come in because if the Union come
in, you guys will probably get more money . . . because I
am at the bottom of the pay scale for foremans.
“But if I was you, I would be careful who I talk to
about the Union. There was a guy named Joe Melton who
used to work here for me. Just the way you are talking the
Union, that is the way he was talking.
“Black Abadie transferred him [Melton] to Westwego,
but two weeks later they fired him. Black and John [Whit-
tington] would do the same thing to you. If I was you, I
would be real careful, because I have heard that anybody
that is affiliated with union people, they want to fire them.
“Now, we had this conversation, but, we didn’t have
this conversation, because anybody that asks me I will
deny it.”

In Johnson’s case, I credited this testimony over Benoit’s de-
nial. I further concluded that Benoit’s telling an employee that
another employee had been transferred because of his union
activities, that the employee was then discharged, and that “I
have heard that anybody that is affiliated with union people,
they want to fire them,” was a violation of Section 8(a)(1) as
alleged in the fourth complaint, at paragraph 8.
Melton’s Transfer to the Westwego Yard—
Respondent’s Evidence
As noted in Armstrong’s case, Whittington testified that ei-
ther Abadie or Fradella gave him a slip of paper that listed the
badge numbers of Armstrong and Melton, and either Abadie or
Fradella told him that the employees with those badge numbers
were to be immediately transferred to Westwego; Whittington
had no input into the decision to select Melton as one of the
employees to be transferred to Westwego. Benoit testified that
he was informed by Whittington that Melton was to be trans-
ferred because: “It was just that we had to cut back.” Benoit
denied telling Melton that he did not know what was going on
and that he did not know why Melton was being transferred to
Westwego. Benoit testified that “many” of his employees were
moved about the same time because his work had “caught up.”
On cross-examination, Benoit acknowledged that he had gotten
no advance notice of Melton’s transfer to Westwego.
Neither Fradella nor Whittington testified that there was any
lack of work for pipe-testers at the main yard, and Benoit ac-
knowledged that there were about 12 pipe-testers that continued
to be used at wet dock-3 after Melton was transferred to West-
wego. Again, Benoit acknowledged that Melton was one of his
more highly skilled employees. Moreover, as noted in Arm-
strong’s case, Simpson testified that there was work for all of
the transferred employees to do in the main yard, but he had to
make a decision to send them anyway for the good of the Com-
pany.
Melton’s Transfer to the Westwego Yard—Conclusions
Respondent denies that its supervisors knew that Melton fa-
vored the Union. Respondent does not deny, however, that
Melton spoke up at an employer campaign meeting and voiced
the commonly held concern, and the Union theme, that wages
should be higher for all employees. Melton emphasized the
point by stating that, if Respondent would rid itself of some of
its vice presidents, wage increases for all employees could be
given. In this context, Melton’s concerted activity was also
union activity of which Respondent is charged with knowl-
AVONDALE INDUSTRIES

1437
edge.530 Also, Melton’s talking about the Union was of suffi-
cient note to Rabestein that Rabestein unlawfully told Melton to
stop it. Finally, as I have further found, Benoit told employee
Eddie Johnson that Melton had been talking about the Union
and, as a result, he was transferred from the main yard and he
was later discharged. I therefore find that Respondent’s main
yard supervisors knew that Melton was a known actively
prounion employee. Respondent’s animus toward such employ-
ees having been demonstrated throughout this decision, I con-
clude that the General Counsel has presented a prima facie case
that Melton was unlawfully transferred, and the burden shifts to
Respondent to demonstrate by a preponderance of the evidence
that it would have taken the same actions against Melton even
in the absence of his known protected activities. Respondent’s
defenses must therefore be examined.
On brief, page “Inter-Department Transfers—69, 70,” Re-
spondent states:

It is uncontroverted that when the Pipe Department in
the past transferred workers to other Avondale yards, the
selection criteria was the same. [Production Vice Presi-
dent] Simpson and [General Foreman] Whitney testified
[that] with prior contracts the criteria was to send employ-
ees with discipline or performance problems. Melton’s se-
lection was in keeping with past practices and consistency
with past practices negates a claim for antiunion motiva-
tion for the transfers. [Citations omitted.]

The gaping failure of evidence in this assertion is that Melton
had a perfect disciplinary record. He had never been issued a
warning notice, and Benoit considered him one of his best em-
ployees.
The second factor to be noted in Respondent’s assertion on
brief is that it does not assert the defense that was asserted at
the hearing. Benoit testified that, although Melton was an
excellent employee, he had to be transferred because there was
not enough work for him at the main yard. Cross-examination
of Benoit proved this assertion false when Benoit admitted that
as many as 12 pipe-testers were being used at wet dock-3,
alone. Moreover, Simpson acknowledged that there was plenty
of work for all of the employees who were transferred to
Westwego. Whittington, Melton’s general foreman, did not
testify that Melton was transferred because of lack of work at
the main yard. If that had been the case, Whittington presuma-
bly would have known about it, and Whittington would have so
testified. The failure of corroboration of Benoit’s testimony,
coupled with the failure of Respondent even to cite Benoit’s
testimony on brief, demonstrates that Benoit’s testimony, that
lack of work was the reason for Melton’s transfer, was a com-
plete lie.
Benoit’s demonstrated willingness to lie under oath fortifies
my conclusion that he told Johnson that Melton had been trans-
ferred to Westwego because he had been talking about the Un-
ion. Benoit’s demonstrated willingness to lie under oath, and
Melton’s better demeanor, further cause me to believe, and
find, that Benoit told Melton that he had tried to get Melton’s
transfer to Westwego stopped, but orders had come from
“higher up.” I further believe Melton’s undisputed testimony
that Abadie told him that he did not know why Melton was
being transferred to Westwego; he only knew that the order
“came from up above,” and that there was nothing that he could

530 See Neff-Perkins Co., 315 NLRB 1229 fn. 1 (1994).
do about it. If there had been a legitimate reason for the transfer
of Melton, the senior general foreman on the ship, Abadie,
assuredly would have been told what it was, and he would have
been called to so testify. Also, Melton’s immediate general
foreman, Whittington, would have been told if there had been a
legitimate reason for selecting Melton for transfer. Whittington
testified, however, that he was not given any reason for Mel-
ton’s transfer; he was just given a piece of paper with Melton’s
badge number (and Armstrong’s badge number) on it. Finally,
Benoit was Melton’s immediate supervisor; he was in a posi-
tion to know the true reason that Melton was selected for trans-
fer to Westwego, and he admitted to Johnson that it was be-
cause Melton had been talking about the Union. (Benoit also
told Johnson that Melton was discharged at Westwego because
of his talking about the Union at the main yard, but that is an-
other matter that will be discussed below.)
As I stated in Armstrong’s case, Respondent had no demon-
strably legitimate reason for transferring any pipefitters, or
pipe-testers, to Westwego in July and August 1993. Certainly
there were no pipes to be tested at Westwego. Respondent
would assuredly need employees with Melton’s skills later,
when there were pipes to be installed and tested, but there is no
reason to believe that it could not have transferred employees
as quickly, and as permanently, at such later times when it ac-
tually needed them. Finally, even if Respondent needed some
pipe department employees at Westwego, there is no reason to
believe that, during the summer of 1993, it needed first-class
mechanics such as Melton. Nevertheless Respondent was will-
ing to waste Melton’s special skill, for which he was highly
paid, in order to get him out of the main yard as soon as a col-
orable excuse to do so presented itself.
Melton’s case fortifies my finding that the only purpose of
transferring pipe department mechanics to Westwego during
the summer of 1993 was to provide an artificial aura of legiti-
macy to the transfer of Armstrong (the sign-bearer at Bossier’s
June 21 speech). One nonunion employee, Madere, also got
caught in the process, but Respondent used the Westwego con-
tract as a pretext to rid the main yard of at least one more
prounion employee, Melton.
That is, I find that Respondent has failed to show that it
would have transferred Melton to Westwego even absent his
known protected activities, or the protected activities of Arm-
strong, and I conclude that, on August 2, 1993, Respondent did
transfer Melton from the main yard to Westwego in violation of
Section 8(a)(3) of the Act.
(2) Melton’s discharge for improper life-jacket use
On August 23, the day he was discharged, Melton was as-
signed to work with Armstrong pulling trees that had grown up
around a dock in the Mississippi River. A moveable crane was
on the dock, and Melton was in a flat-bottom boat. Melton de-
scribed the process:

When I initially started, I just hooked the chain above
the water on the trees, and the crane pulled it, and it broke
the tree off. A cypress tree, when it is growing in water, it
comes up so far and it has got a big trunk on it, and then it
gets like a little skinny part that goes up that actually has
the leaves on it.
And I had to hook the chain onto the trunk part in or-
der to pull the roots. . . .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1438
And so in order to hook the chain underwater on the
trunk of the tree, I was wearing a Mae West life jacket,
which is a real bulky life jacket. It has two tie wraps on it.
I took the life jacket off. I put the life jacket on the seat
beside me. I laid down in the boat and hooked the chains
underwater and continued pulling them. I pulled approxi-
mately 50 trees from 7:00 till 10:00.

Armstrong was working on the dock while Melton was in the
boat. Armstrong’s job was to unwrap the chain from the tree
that the crane had lifted to the dock. Further according to Mel-
ton:

At 10:00, Bob Luttrel came by the river and told me to
put my life jacket on. And I explained to him at that time
why I had taken it off, because I couldn’t reach deep
enough in the water to tie the chain on the trunk of the
tree.
And he says, “It doesn’t matter. Put it on.” So I put it
on and tied it and went back to work. . . .
At 11:45, Bob Luttrel called me back over to the dock
and told me I was terminated. And I said, “Why?”
He said, “Because your life jacket is untied.” The top
tie was untied; the bottom one was not. It had one tie wrap
untied.
He had a warning slip that he told me was my termina-
tion slip.

The notice that Luttrel handed Melton recites as a date and
time for the offense, “8–23–93 10:00 a.m. & 11:45 a.m.” The
box for Avondale Employees’ Guide’s major offense-23 is
marked and the text of the notice states:

Deliberate violations of safety, security or plant pro-
tection regulations. In flatboat without life jacket; foreman
instructed him to wear it at all times. Found again in flat-
boat with life jacket improperly secured.

The life vest had two canvas ties; as Melton acknowledged, the
top tie was undone when he was approached at 11:45 a.m. by
Luttrel for the second time. Melton was asked and he testified:

Q. Do you know how the top one became untied?
A. Leaning over in it and being in the limbs of the
trees, the limbs untied it.
Q. [By Mr. Morgan]: What happened when Mr. Luttrel
gave you your warning notice and told you you were ter-
minated?
A. I read it, and I said, “What is this? I am losing my
job because my life jacket is untied?”
He says, “You are terminated,” and he says, “There is
nothing I can do about this. I didn’t have anything to do
with this, and there is nothing I can do about it.”

Melton testified that he told Luttrel that he had not done any-
thing deliberately. At the space for employee comments, Mel-
ton wrote:

Tree limbs untied vest and I did not notice—foreman
came with termination papers & no warnings. Violation
warranted no more than a citation.

Neither in his protestations to Luttrel, nor in his comment on
the warning notice, nor in his pretrial affidavit, did Melton state
that only one of the ties on the life vest was untied.
On cross-examination, Melton acknowledged that he did not
wear union insignia such as pins, T-shirts or stickers, as some
other union supporters did. Further on cross-examination, when
he was asked why he did not point out to Luttrel, or say in his
employee comment on the warning notice, that one tie was still
tied when confronted by Luttrel, Melton answered, “I was so
upset when this happened from losing my job for something
like this. It really never even crossed my mind until later on that
I did untie the bottom one when I took it off.” Melton testified
that it was a day or two after his September 23 discharge that he
realized that one tie was still tied, but he further acknowledged
that in his November 5 pretrial affidavit, he stated: “I had on
the life vest at the time, but it was untied, which had been
caused by the tree limbs.”
Armstrong, who was working on the dock the day of Mel-
ton’s discharge, as described above, testified that when Luttrel
called Melton to the dock, only the top tie of Melton’s life vest
was untied. Armstrong further corroborated Melton’s testimony
that, during the week before Melton’s discharge, employee
David (last name unknown to Melton) sometimes worked in a
flat-bottom boat in the River without a life vest.
Melton’s Discharge—Respondent’s Evidence
Luttrel testified that early on August 23, when he gave Mel-
ton the tree-pulling assignment: “I told Melton to go to the
toolroom, get a life jacket, wear it at all times while he was in
the flatboat.” Luttrel further testified that later in the morning
Westwego Production Manager Johnson radioed him that there
was an employee in a flatboat not wearing a life jacket. Luttrel
went to the bank. When he saw Melton and told him to put on
the life jacket, Luttrel testified:

Melton said, “This is bull shit; you all are picking on
me because I am union.”
I said, “Melton, this has nothing to do with the Union;
this is strictly an Avondale safety violation.”

Luttrel testified that Melton then came to the shore, got his life
jacket, tied it properly and got back in the boat. Luttrel then
went to Johnson’s office and told him what had happened, in-
cluding Melton’s statement about the Union. Luttrel denied that
Melton told him that he had taken the life jacket off because he
could not get the chain around the tree trunks without doing so.
Luttrel further testified that later in the morning Johnson ra-
dioed him to come back to the river bank. When he got there,
Johnson pointed to Melton who was wearing the life jacket, but
with both ties untied and “laying back on his shoulders.” John-
son told Luttrel, “[W]e need to terminate him.” Luttrel then
called Melton to the bank and told him that he was discharged.
Luttrel acknowledged that Melton said that the trees had caused
the ties on the life jacket to come undone; Luttrel testified,
however, that he did not believe Melton because other employ-
ees had performed the same operation and had kept their life
jackets tied. Luttrel denied that he, at any point, told Melton
that he had had nothing to do with Melton’s discharge. Luttrel
further denied that Armstrong was in the area while Melton was
in the boat without a properly secured life jacket; Luttrel testi-
fied that, at the time, Armstrong was putting tree detritus in a
dumpster.
Johnson (vol. 82) testified consistently with Luttrel. Johnson
testified that he saw Melton first wearing no life jacket, and
then wearing a life jacket with both ties untied, and he radioed
Luttrel on both occasions, as Luttrel testified. Johnson testified
that he decided to discharge Melton because: “I knew he was
AVONDALE INDUSTRIES

1439
just blatantly disrespecting our or disregarding our safety rules.
He was just talked to about it.”
Melton’s Discharge—Conclusions
As I have found above, Benoit told alleged discriminatee
Eddie Johnson that Melton had been talking about the Union
and that Melton was thereafter transferred to Westwego and
discharged. This was a threat to Johnson, and an admission that
Melton was transferred to Westwego unlawfully, as I have
found. I do not, however, agree with the General Counsel that
Benoit’s statement to Johnson was also an admission that Mel-
ton’s discharge was unlawful. Benoit was far down the supervi-
sory chain, and he was removed from Westwego, and there is
no evidence that he would have, in fact, known that there was
an unlawful reason for Melton’s discharge, as well as his trans-
fer.
On the other hand, as I have concluded above, Melton was,
in fact, transferred to the Westwego yard because of his pro-
tected activities at the main yard. Although his supervisors at
Westwego denied that they knew that Melton was prounion
before August 23, I do not believe their testimonies. As
Wheeler told Menier, there was a list of employees who were
transferred to Westwego to be discharged because they were
prounion. I do not believe that the list could have been created,
or the employees unlawfully transferred, without the knowl-
edge of such supervisors as Johnson, the supervisor who made
the decision to discharge Melton. Moreover, before Melton was
discharged, he told Luttrel that he was prounion, and Luttrel
admits that he told this to Johnson. Respondent’s animus to-
ward such prounion employees is established throughout this
decision. I therefore conclude that the General Counsel has
presented a prima facie case that Melton was unlawfully dis-
charged, and the burden shifts to Respondent to demonstrate by
a preponderance of the evidence that it would have taken the
same actions against Melton even in the absence of his known
protected activities. Respondent’s defenses must therefore be
examined.
I do not believe Melton’s testimony that the ties on his life
jacket were undone by the trees that he was pulling from the
Mississippi River. If that had happened, Melton most certainly
would have known about it when it happened. If he did not
know about it when it happened, he would have known about it,
and corrected the matter, the first time that he straightened up
after pulling a tree out of the river, and he would have then
corrected the situation. Finally, if Melton had really believed
that the tree branches had undone the ties of his life jacket, he
would have mentioned it in his comment on the warning notice
and the affidavit that he gave to the Regional Office investiga-
tor weeks later. I believe, and find, that Melton intentionally
untied, or at least left untied, the ties to his life jacket.
Melton was discharged upon the occasion of his first disci-
plinary offense, ever. As appendices B and C of this decision
demonstrate, other employees were allowed to accumulate up
to 14 warning notices in 12-month periods without being dis-
charged. Aside from cases of theft, grossest insubordination,
willful damage to company property or sleeping, Respondent
has offered no evidence that would demonstrate that any non-
union employee was ever discharged for one offense. (Respon-
dent offered, and I rejected on other grounds, three warning
notices and three ASI-22 (discharge) forms as evidence that
Westwego employees were discharged for one safety violation.
As Respondent stated many times during the hearing, however,
its ASI-22 forms normally recite only the last offense upon
which discharges depended. The personnel cards, showing
warning notice histories of the three employees concerned,
were not offered. Finally, one of these three warning notices is
illegible, and another shows that the employee involved actu-
ally injured another employee.)
On brief, page “Westwego Yard—52,” Respondent states
that: “Moreover, Avondale conclusively showed that it would
have taken the same action regardless of whether Melton was
engaged in any union activities.” In so stating this conclusion,
Respondent implicitly recognizes its burden to show that it
would have discharged Melton even in the absence of his
known protected activities. Nevertheless, further on brief, at
“Westwego Yard—58,” Respondent states: “It is a major of-
fense of Avondale’s Employee Guide to deliberately violate a
safety regulation. See RE 12, § 23 at p. 16. The Guide states
that employees may be discharged for a first major offense if
the violation is serious.” (Emphasis added.) In so stating, Re-
spondent acknowledges that the Avondale Employees’ Guide
does not require the discharge of employees who engage in an
intentional safety violation, and it can hardly defend itself on
the basis of an imperative that does not exist. Moreover, the
issue is what Respondent’s practice was, not merely how the
Avondale Employees’ Guide could be read.
The record is replete with case in which employees were is-
sued major offense warning notices without being discharged.
Specifically, by evidence of disparate treatment introduced in
rebuttal, the General Counsel has shown that a significant num-
ber of employees have been issued major offense warning no-
tices for safety infractions and not discharged. Many of those
are listed in Armstrong’s case, supra. To be noted among them,
especially, is the case of Westwego employee Miller. Just be-
fore Respondent discharged Melton, General Foreman Barber
issued Miller a major offense warning notice for negligently
operating a crane, striking one crane-boom with another. Then,
after Melton was discharged, Barber issued Miller three addi-
tional major offense warning notices, all under major offense-
23 (like Melton’s). If Miller was discharged even on his fourth
safety major offense, Barber was not called in surrebuttal to so
testify. At any rate, Miller was not discharged after his third
major offense safety infraction. On brief, Respondent offers no
reason why the treatment of Miller is not compelling evidence
of disparate treatment of Melton. I find that it is.
Finally, in his Exhibit 774, and other exhibits, the General
Counsel introduced a plethora of warning notices that were
issued to employees for safety violations, and recitations in
those notices, or subsequent warning notices that are in evi-
dence, show that the employees were not discharged. Many of
these were issued under major offense-23 of the Avondale Em-
ployees’ Guide. Many others, however, were issued under gen-
eral offense-12 (“Violation of Company safety rules and
regulations through carelessness”), and the described actions of
those employees were at least as deliberate as Melton’s. (Chief
among these are cases in which employees worked at heights
without safety belts; this was conduct that is as close to Mel-
ton’s case as can reasonably be expected to be found because
employees do not often work over water.)
I agree with Respondent that the General Counsel’s parol
evidence of unpunished safety infractions at Westwego was not
probative. Again, however, Respondent offers no reason why
the documentary evidence of disparate treatment should not be
controlling in Melton’s case, other than to say that the warning
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1440
notices to other employees somehow do not tell the full story.
(Certainly, I afforded Respondent all the time that it could use
on surrebuttal to offer any evidence that would detract from the
plain import of the warning notices.) Accordingly, I find that
Respondent has not shown that it would have discharged Mel-
ton even absent his known prounion sympathies, and I conclude
that by discharging Melton Respondent violated Section 8(a)(3)
of the Act.
c. Luis Gonzalez
Luis Gonzalez (vol. 45), a pipefitter, worked in the main
yard until he was transferred to the Westwego yard on August
2, 1993. On August 5, Gonzalez was issued a warning notice.
Paragraphs 110 and 114 of the second complaint, respectively,
allege that by transferring and warning Gonzalez, Respondent
violated Section 8(a)(3). The General Counsel contends that
Respondent transferred Gonzalez (along with Armstrong, Mel-
ton, Brown, and Fleming) to Westwego, and warned Gonzalez,
because of his known union activities and expressions of sym-
pathy which included his wearing prounion insignia and men-
tioning the Union to a supervisor. Respondent answers that its
supervisors had no knowledge of any prounion sympathies that
Gonzalez may have held at any relevant time and that Gonzalez
was transferred to the Westwego yard, along with other em-
ployees, because of business necessities. Respondent further
answers that Gonzalez was issued a warning notice solely be-
cause of his violation of an established safety rule, not wearing
tinted safety goggles while cutting steel with a torch. The Gen-
eral Counsel replies that the business-necessity defense for the
transfer is a pretext as shown by the fact that Gonzalez was not
used as a pipefitter at Westwego until 3 months after his trans-
fer. The General Counsel further replies that Respondent’s
defense for the warning notice was a pretext because Gonzalez
had previously been allowed to use clear goggles while using a
cutting torch, and other employees were allowed to do so af-
terwards. Ultimately, I find and conclude that Gonzalez was
transferred unlawfully, but Respondent did not violate the Act
by issuing the warning notice to him.
Spanish is the first language of Gonzalez, and he was inter-
rogated through a translator. It soon became apparent, however,
that Gonzalez knew at least some English and he could testify
in English about what some supervisors had said to him at vari-
ous times. Certain of that testimony is discussed in Armstrong’s
case, supra.
Gonzalez testified that he “regularly” wore union stickers
“on” his hardhat and shirts. At another point Gonzalez testified
that he wore a prounion sticker only on the inside of his harhat.
Gonzalez further testified that during the preelection period he
spoke up, in English, at employer campaign meetings; Gon-
zalez testified: “In all of our meetings I would say vote for me
and vote for the Union.” Gonzalez testified that during several
employer campaign meetings supervisors, including his imme-
diate supervisor, Foreman David Daigle, told the employees
that those who wore union stickers, or spoke in favor of the
Union, would have “problems.” He testified that, several times
before the June 25 Board election, Daigle told him not to wear
union stickers, “neither on my shirt nor the hardhat,” and that,
on one occasion, Daigle tore one of the stickers from his shirt
and threw it away. Gonzalez further testified that he placed a
union sticker on the inside of his hardhat during the campaign;
occasionally when he took his hardhat off to work in tight
spaces, Daigle would comment on the sticker which he then
could see. Gonzalez was asked to testify in English what com-
ment Daigle would make on such occasions, and Gonzalez
responded: “No put the sticker in the hat. Take it out, man. You
got a problem; take out the sticker in the hat.” Gonzalez further
testified that on one occasion Daigle asked him for a union
sticker; Gonzalez gave Daigle one; and Daigle stuck it on to the
back of another supervisor’s hardhat.
Gonzalez further testified that, during an employer campaign
meeting that was conducted by Pipe Department General
Foreman Whitney 3 or 4 weeks before the June 25 Board elec-
tion:

I asked him [Whitney] why Avondale didn’t pay more
to its employees.
And he responded, “Yes, you are being paid more.”
And I said, “Where?”
And he said, “It is reflected on the papers.”
I told him I didn’t need it on the papers, but in my
check, in my pocket.
I also mentioned to him why I made $10 when there
were others who earned $11.75 and with the same work.
Then he told me that there were two ratings, an old one
and a new one.
I asked him why. And he said, “This is Avondale.”
And I said, “This is not good.”

Gonzalez testified that he placed prounion stickers “in dif-
ferent parts in Avondale [in] different places.” Gonzalez testi-
fied that Daigle once accused him of putting up union stickers
in the restroom, but he denied doing so. Gonzalez also testified
that Whitney once accused him of putting union stickers on a
wall; Gonzalez testified, in English:

David Whitney . . . said, “I know you put this sticker
in different area the Avondale.”
I told him, “No[t] me.”
He said, “I know you put a sticker.”
I told David Whitney: “I vote for Avondale; I no vote
for union.”
This is big man. I told him, “Vote for Union, me
fight.”

Gonzalez further testified that when he made this last state-
ment, Whitney patted him on the back and walked away. Gon-
zalez testified that this exchange with Whitney also occurred
“two or three weeks before the election.”
On cross-examination, Gonzalez first confirmed, then he de-
nied, that he told Daigle that he had placed prounion stickers on
a restroom wall. Also, while he was on cross-examination, the
General Counsel stipulated that Gonzalez’ pretrial affidavit: (1)
states at one point: “I did not wear any union sticker at work
where the Company could see it;” (2) says nothing about any
supervisor telling him that if he wore prounion insignia he
would have “problems;” (3) says nothing about Daigle telling
him that he could not wear prounion insignia on his shirt or
hardhat; (4) says nothing about Daigle taking a sticker from his
shirt and throwing it away; (5) says nothing about Daigle taking
a prounion sticker out of his hardhat; and (6) says nothing about
Daigle asking him for a prounion sticker and then placing it on
the hardhat of another supervisor. On redirect examination,
Gonzalez testified that there were many “mistakes” in the affi-
davit, but on re-cross-examination Gonzalez acknowledged that
he had been given an opportunity to make changes in his affi-
davit before he signed and swore to it.
AVONDALE INDUSTRIES

1441
Daigle did not testify, but, in view of the many unexplained
conflicts with Gonzalez’ affidavit, I do not believe, and do not
credit, Gonzalez’ testimony about things that Daigle said, and
did, about his wearing or handling the prounion stickers. I also
credit Gonzalez’ affidavit over his trial testimony and find that
he never wore prounion insignia where any supervisor could
see it.531
Whitney denied knowing of any prounion sympathies that
Gonzalez may have had, but he did not deny that Gonzalez
spoke up for the Union at an employer campaign meeting that
he conducted. Whitney testified that he could not recall speak-
ing to Gonzalez about prounion stickers that had been placed
on walls about the plant. On cross-examination Whitney was
asked and he testified:

Q. Did you ever have any one-on-one conversations
with Luis Gonzales concerning union activity?
A. I could not say as to whether I did or not, sir. I do
not remember.
Q. You just don’t remember one way or the other?
A. No.

In summary, Gonzalez admitted that at one point, when he
was accused by Whitney of putting prounion stickers on a rest-
room wall, he told Whitney that he would not vote for the Un-
ion and that he would, indeed, “fight” against the movement to
secure votes for the Union in the Board election. Respondent
argues that this admission negates any contention that Respon-
dent’s supervisors, especially Whitney, thought that Gonzalez
held prounion sympathies at the time that he was transferred to
Westwego. Whitney, however, on direct examination and
cross-examination, testified that he could not recall any ex-
changes about the Union, or prounion stickers, with Gonzalez.
There is no reason to believe that, at time of trial, Whitney
could not remember Gonzalez’ admission, but he remembered
it at a time that he selected Gonzalez for transfer to Westwego.
That is, Gonzalez’ admission was simply not a factor in the
decision to transfer Gonzalez to Westwego.
On the other hand, what Whitney did not deny, and what
Whitney would have remembered at the time that Gonzalez was
transferred to Westwego, was: (1) Gonzalez’ speaking up at an
employer campaign meeting and saying that the employees
should be receiving greater wages; (2) Whitney’s response that
the employees’ wage increases were on paper; and (3) Gon-
zalez’ rejecting that response by saying that raises that are only
on paper (as opposed to being in pocket) do not help the em-
ployees. Whitney was also unlikely to forget, and I find that he
did not forget, that Gonzalez rejected Whitney’s offered expla-
nation of Respondent’s two-tier wage system as the reason for
certain wage differences by saying, “This is not good.”
There is no evidence, or contention, that at employer cam-
paign meetings Gonzalez repeated “vote for me and vote for the
Union” in such a way that any supervisors would have heard
him. Therefore, I find that the only prounion activity in which
Gonzalez engaged at the main yard, before his transfer to
Westwego, was his speaking up at one employer campaign
meeting and challenging Whitney about the employees’ not
receiving sufficient wages and Respondent’s two-tier wage
system.

531 See Alvin J. Bart & Co., 236 NLRB 242 (1978).
(1) Gonzalez’ transfer to the Westwego yard
Gonzalez testified that he was informed of his transfer by
Daigle. Gonzalez asked if he was being selected for transfer, “if
it was because of the Union that they were transferring me.” To
that question Daigle only replied: “You are transferred to
Westwego.”
Gonzalez testified that on the first day that he reported to
Westwego, he and other transferees from the main yard moved
furniture; for the next 3 weeks he performed cleaning duties.
After that Gonzalez was assigned to crews pulling heavy metal
objects from the Mississippi River and more cleaning duties.
Gonzalez testified that it was 3 months before he was assigned
any pipefitting work at Westwego.
Gonzalez’ Transfer to the Westwego Yard—
Respondent’s Evidence
As noted above, Whitney testified that he selected Gonzalez
for transfer to Westwego because Genter (not Fradella, as
Fradella testified) told him to select his “trash” for transfer.
Whitney considered Gonzalez “trash” because Gonzalez’ fore-
man (whose name Whitney did not remember) had reported to
him that he had experienced trouble understanding Gonzalez’
heavily accented English, and the foreman also reported that
Gonzalez did not do his work correctly because he did not un-
derstand the instructions that he had been given.
Gonzalez’ Transfer to the Westwego Yard—Conclusions
Gonzalez spoke up at one employer campaign meeting and
challenged his general foreman, Whitney, on two points, wages
and wage differentials. Gonzalez did so in disputation of Whit-
ney’s arguments that the employees should reject the Union as
their collective-bargaining representative. This act of Gonzalez,
therefore, was union activity,532 activity against which Respon-
dent has demonstrated clear and pervasive animus. I therefore
find and conclude that the General Counsel has presented a
prima facie case that Gonzalez was transferred to Westwego,
and later warned, because of those protected activities, and the
burden shifts to Respondent to demonstrate by a preponderance
of the evidence that it would have taken the same actions
against Gonzalez even in the absence of his known protected
activities. Respondent’s defenses must therefore be examined.
On brief, Respondent states that Gonzalez was transferred
because he was an employee with “discipline and performance
problems.” Like Melton, however, Gonzalez had never re-
ceived a warning notice, and Respondent makes no suggestion
of what discipline problems Gonzalez may have presented. (As
explained in Armstrong’s case, however, even if there had been
some disciplinary problem with Gonzalez, Respondent has not
convinced me that its supervisors actually considered West-
wego to be something of a dumping ground for misfits.) Also,
Respondent offered no evidence that Gonzalez had presented it
with any performance problems, other than Whitney’s bare
statements which depend on the double-hearsay reports of a
foreman, the name of whom Whitney could not recall. Also
Whitney’s testimony conflicts with itself because Whitney
testified that he personally hired Gonzalez; Whitney presuma-
bly satisfied himself at that time that Gonzalez could under-
stand English and could be understood sufficiently to perform
the work. Moreover, Gonzalez was rated as a first-class pipefit-
ter, nothing less, and it is unbelievable that Respondent would

532 See Neff-Perkins Co., 315 NLRB 1229 fn. 1 (1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1442
have allowed Gonzalez to achieve, and maintain, that rating if
he could not do pipefitting work well. Finally, Whitney’s testi-
mony squarely conflicts with the above-noted testimony of
Fradella; Whitney testified that he got his instructions to trans-
fer “trash” from Genter, not Fradella. Respondent notes the
conflict between Fradella and Whitney on brief, but offers no
theory of how the testimonies of Whitney and Genter can be
reconciled. It is apparent to me that Whitney’s conflict with
Fradella was caused by the fact that Fradella was lying when he
said that he left choices of transferees up to his general fore-
men, and Whitney was lying in an attempt to hide the fact that
he, like Whittington, received a piece of paper with badge
numbers of pipefitters whom he had no choice but to transfer to
Westwego.
I firmly believe that Gonzalez was just another pipefitter (as
it happened, a prounion pipefitter) who was transferred to
Westwego to give some aura of legitimacy to pipefitter Arm-
strong’s transfer to Westwego.533 Even if this theory of the
violation is incorrect, however, it must be found, as I do, that
Whitney’s bare, uncorroborated, hearsay, contradicted and self-
conflicting testimony is not probative evidence that could begin
to meet Respondent’s burden under Wright Line. I therefore
conclude that by transferring Gonzalez from the main yard to
the Westwego yard on August 2, 1993, Respondent violated
Section 8(a)(3) of the Act.
(2) Gonzalez’ warning notice for not wearing tinted goggles
On August 5, Gonzalez was assigned to do some cutting-
torch work, something that he had done before at Westwego.
As he was doing the work, Foreman Jerry Petticrew gave Gon-
zalez a written warning notice signed by General Foreman
Devon Barber and Petticrew. General offense-12 is checked,
and the text of the warning notice is: “Violation of Company
rules and regulations through carelessness (Burning with hand
torch without using proper safety equipment).” Gonzalez asked
what the warning notice was for; Petticrew responded that it
was for using clear goggles rather than tinted goggles while
doing the cutting-torch work.
Gonzalez testified that he, and others, had previously used
clear goggles while doing cutting-torch work. Gonzalez further
testified that one week after he got the warning notice, Pet-
ticrew passed by him; Gonzalez pointed to another employee
who was then doing cutting torch work with clear goggles.
According to Gonzalez, “He looked at me, then the other per-
son, and kept on walking.”
Petticrew credibly denied allowing other employees to use
cutting torches without tinted eyewear. Moreover, Petticrew
testified that he simultaneously issued a warning notice to the
nonunion pipefitter Madere at the same time for the same con-
duct. Although, as discussed earlier, Petticrew admitted giving
an oral instruction to Armstrong when Armstrong was using an
improper welding shield, and Petticrew did not give such an
oral instruction to Gonzalez, he also did not give one to Mad-
ere. Although Petticrew’s actions toward Gonzalez are seem-
ingly arbitrary, they were equally, and simultaneously, arbitrary
toward the nonunion employee Madere. Under the circum-

533 On brief, Respondent argues that Whitney knew that Ken Mad-
ere’s brother, Tim, also a pipefitter, was a prounion employee and
Whitney did not transfer him. Whitney, however, did not testify that he
knew of Tim Madere’s prounion attitude before the selections for
Westwego were made. Moreover, the General Counsel is not required
to prove the negative, why Respondent did not transfer Tim Madere.
stances, I find and conclude that Respondent has show that
Gonzalez would have been issued a warning notice, even ab-
sent his protected activities, and I shall therefore recommend
dismissal of this allegation of the complaint.
d. Walter Brown
Walter Brown (vols. 27, 28, 158) worked in the main yard
for 23 years. Brown was classified as a welder, but during his
last 4 years of employment in the main yard he was assigned to
the shipfitting department as a tank-tester. Brown was trans-
ferred from the main yard to the Westwego yard on July 13,
1993. On September 23, Brown was discharged while working
at the Westwego yard. Paragraphs 98 and 123 of the second
complaint, respectively, allege that by transferring and dis-
charging Brown Respondent violated Section 8(a)(3). The Gen-
eral Counsel contends that Brown (along with Melton, Arm-
strong, Gonzalez, and Fleming) was transferred and discharged
because he expressed prounion sympathies by wearing proun-
ion insignia, speaking up to supervisors in favor of the Union,
and responding affirmatively to an unlawful interrogation. Re-
spondent denies that the interrogation occurred. Respondent
further denies that any of its supervisors knew of any prounion
sympathies that Brown may have held at any relevant time.
Respondent further answers that Brown was transferred to
Westwego solely because of business necessities. Respondent
also answers that Brown was discharged solely because he
cursed a supervisor and was insubordinate. The General Coun-
sel replies that the business-necessity defense for the transfer is
a pretext as shown by the fact that Brown was never used as a
welder at Westwego. The General Counsel further replies that
the insubordination-cursing defense is a pretext because Brown
did not engage in the conduct attributed to him by Respondent;
alternatively, the General Counsel contends that Brown was
treated disparately because other employee were allowed to
engage in similar conduct but they received lesser, or no, disci-
pline. Ultimately, I find and conclude that Brown was unlaw-
fully transferred to Westwego, but he was not unlawfully dis-
charged.
Brown was classified as a first-class welder, and he was for-
mally assigned to the welding department, but during his tenure
he was occasionally assigned to the shipfitting department to do
tank-testing. These assignments lasted for various periods of
time, and, as noted, Brown had been working in the shipfitting
department, doing tank-testing work, for 4 years before his
transfer to Westwego. As a tank-tester, Brown filled water,
fuel, or cargo tanks with liquids or air and checked for air or
water tightness. John Ernst (vol. 147) is an assistant superinten-
dent of the shipfitting department who is in charge of tank-
testing. When asked on direct examination to describe tank-
testing, Ernst testified:

Tank and compartment testing requires that a person
go up to a compartment or a tank, blank [temporarily
close] off all of the openings, and apply pressure to that
compartment or tank, and use a soap solution to find the
leaks in the compartment or tank, and if necessary, weld a
weld-leak or tighten a bolted joint or flange in order to
make that compartment or tank tight.

Brown testified that, although he was classified as a first-class
welder, he did welding only sporadically when working in
tank-testing. Brown testified that welders and pipe testers usu-
ally work together, and he welded only when a welder was
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1443
absent. Brown testified that he had not done any welding during
the 2 years prior to his transfer to Westwego.
Brown testified that he placed a union sticker on the bill of
his hardhat in April or May, but he did not testify about how
long it remained there. The General Counsel called Clifford
Dumas (vol. 58) to testify in support of the discharge allegation
made for Brown. According to Respondent’s records, Dumas, a
shipfitter, was transferred to Westwego on July 19. Dumas
testified that he had not known Brown before his transfer to
Westwego, but Brown worked with him “pretty much every
day” at Westwego. While he was on direct examination, Dumas
was not asked if Brown ever wore prounion insignia at West-
wego. On cross-examination, Dumas testified that he could
remember no “union activities” in which Brown engaged at
Westwego. On redirect examination Dumas was not asked if he
considered wearing prounion insignia to be a form of union
activity, and I must assume that he did.
Brown testified that on April 2 he received a handbill from
Jimmy Russ, one of the Union’s organizers. The handbill was
apparently issued in something of a reply to a company hand-
bill; the company handbill had asked employees to attempt to
get the organizers to sign a “guarantee” that they would not be
required to strike if the Union was selected as their collective-
bargaining representative. The Union’s handbill also asked the
employees to attempt to get the supervisors to sign a “guaran-
tee.” The text of the handbill is lengthy and I shall not quote it
all; three of the “guarantees” will suffice:

I’ll stop all the harassment and get rid of all the petty
work rules. I will treat every worker with the dignity and
respect he or she deserves.
I’ll pay every worker the average wage that the Union-
ized workers in the area [are] now receiving. . . .
I’ll never again unjustly lay off, discipline or fire any
worker.

(The handbill concludes: “If the Boss does not sign this guaran-
tee, VOTE YES.”) Brown took the handbill to Ernst’s office
and asked the clerk, Douglas (last name unknown to Brown) to
give it to Ernst and ask Ernst to sign it. Brown testified that
later that day, as he was walking by Ernst: “John Ernst stopped
me and said that he couldn’t sign that handbill because he
didn’t think he believed in it, and he wasn’t going to sign it.”
Brown further testified on direct examination that, in early
May, another employee told him to go to the office of his su-
pervisor, Albert Young. When there, according to Brown:

He [Young] asked me how did I feel about the Union,
sir. . . .
I said, I can’t miss anything I never had before . . . .
I said the Union could help us in many ways in bene-
fits and in wages. . . .
He went on to say that the Union will have you paying
dues and different other things . . . .

Based on this testimony by Brown, paragraph 26 of the second
complaint alleges that Respondent, by Young, “interrogated its
employees about their union membership, activities and sympa-
thies.” On cross-examination, Brown acknowledged that his
pretrial affidavit says that Young approached him in his work
area rather than calling him to an office. When he took Brown
on redirect examination, the General Counsel did not attempt to
elicit from Brown any explanation for this inconsistency, al-
though the General Counsel did attempt to elicit an explanation
of another of Brown’s conflicts with his affidavit, as discussed
below.
Brown further testified that during May 1993 he accepted a
few handbills that were being distributed at a gate at the main
yard. He brought some of the handbills to an office that was
only used by tank-testers and laid them on the desk. After a
while Young entered the office. According to Brown:

Out loudly he [Young] said, “Who brought these pa-
pers in here?” And no one answered. Then he continued to
say, “Well, I know who brought them in here; Brown
brought them in.”

Brown testified that he was the only tank-tester by the name of
Brown.
Brown further testified that on June 10 an employer cam-
paign meeting was conducted by Ernst and Young; about 25
employees attended. During the meeting, according to Brown:

John Ernst had made a statement that the Union was
causing the shipyards on the East Coast to close down
and—on account of high wages and so forth, sir. And I
made the statement that there was no need for him stand-
ing up there lying to me, or I am lying to him. My mind
was made up.

As discussed infra, Brown’s supervisors denied this testimony
about his union activities and his interrogation by Young.
(1) Brown’s transfer to the Westwego yard
According to Brown, on July 13, without any prior notice,
Young called him to his office and told him that he was being
transferred to Westwego the next day. Brown testified that,
when he asked why, Young told him that it was Ernst’s deci-
sion. Brown went to Ernst who told him that he was being
transferred because Westwego needed welders and Norris Per-
tuit, superintendent of the welding department, had selected
him. Brown called Pertuit; Pertuit told him that he was being
transferred because Westwego needed welders. Brown pro-
tested that he had not done any welding for a year, but Pertuit
said, “We still need welders over there.” Brown testified that, at
the time that he was transferred, there was still tank-testing
work to do on the ship that he had been working on; also tank-
testing on a “sister” ship had just begun. Brown further testified
that, both before and after he was transferred to Westwego, a
billboard at Respondent’s property line stated that Respondent
was hiring tank-testers.
Brown testified that when he first arrived at Westwego, he
went to Jerry Petticrew, day shift shipfitting foreman. Accord-
ing to Brown: “When I reported to Westwego, Jerry Petticrew
had stated to me that he don’t know why I was sent over there,
because there was no work there for me to do.” Brown testified
that there was, in fact, no welding work for him to do when he
arrived at Westwego. On his own, he found work to do; he
assisted a crane operator by rigging equipment to be lifted.
Then, for about a month, Petticrew assigned him to work on
cleanup crews, “Picking up scrap iron, boards, cutting down
trees.” After that, Brown was transferred to the second-shift
crew of Foreman Dan Wheeler (who is mentioned above in
Armstrong’s case). On Wheeler’s crew, Brown served as a
helper to shipfitter Dumas. Through the date of his discharge on
September 23, Brown did no welding, other than comparatively
simple tack-welding such as that which shipfitters usually do.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1444
Brown’s Transfer to the Westwego Yard—
Respondent’s Evidence
According to documents introduced by Respondent, of the
30 employees who were transferred to Westwego during the
summer of 1993, 11 were welders. The two highest-paid weld-
ers were Brown and alleged discriminatee Fleming. Respon-
dent’s records further show that, although Brown was trans-
ferred to Westwego on Tuesday, July 13, the other 10 welders
were not transferred to Westwego until the following week.
(Nine were transferred on Monday, July 19, and the last welder
was transferred to Westwego on July 20.)
Pertuit (vol. 141) testified on direct examination that Emile
Foret (Simpson’s subordinate vice president) called him and
said that Westwego needed 11 welders in “approximately a
week.” Foret gave him no suggestions of which welders to pick
or the basis upon which selections should be made. Pertuit testi-
fied that he told his general foremen to give him the badge
numbers of welders who drove themselves to work and were
not dependent on buses or car pools to get to Westwego. Pertuit
testified that this was the criterion that he had used when called
upon to send welders to Westwego in 1990 at the start of the
prior Westwego contract. Pertuit testified that he told the gen-
eral foremen that he would select from their suggestions which
welders would be sent.
Pertuit testified that none of his general foremen suggested
Brown as a candidate for transfer to Westwego. Pertuit testified
that he selected Brown because, as he walked about the plant,
he had seen Brown doing only tank-testing work, not welding
work. (Indeed, when Brown described his tank-testing work, he
did not mention any type of welding; Brown, in fact, denied
that he had done any welding for years.) Pertuit testified that a
further reason that he selected Brown for transfer was that he
knew that Brown drove his own vehicle to work.
Pertuit testified that, even before July, he had asked Ernst
several times to return Brown to the welding department be-
cause Brown was not doing any welding as a tank-tester; Per-
tuit testified that Ernst refused because he stated that he in-
tended to use Brown as a welder at some point in the future.
Pertuit further testified that immediately after he got the request
from Foret, he went to the office of Ernst. Pertuit testified:

I just told John Ernst I was looking for welders; I
needed welders to go to Westwego. And Brown was fill-
ing up tanks, and he wasn’t doing welding at the time, and
he [Brown] was a first-class welder. . . .
[Ernst replied that] [h]e would like to keep him doing
what he was doing. But I told him, I said, “No, you don’t
need [Brown] as a welder; I need him as a welder.”

Pertuit testified that Ernst told him that his tank-testing work
was slowing down, anyway. Pertuit further testified that he
asked Ernst to confirm that Brown had his own transportation
to work. When Ernst did that, Pertuit told Ernst to send Brown
back to the welding department for transfer to Westwego.
Pertuit testified that, of the 11 welders who were sent to
Westwego in July and August, he knew the union allegiance of
only one, alleged discriminatee Charles Fleming (whose case is
discussed next). Pertuit denied that he ever saw Brown wear
prounion insignia or that he had otherwise been informed that
Brown favored the Union. Pertuit acknowledged that there was
“plenty” of work for the 11 welders to do in the main yard
when the transfers to Westwego took place. Pertuit acknowl-
edged that Brown was the only welder who protested being
transferred to Westwego.
As noted, Brown was transferred to Westwego on July 13,
and the other 10 welders were transferred on July 19 and 20.
On cross-examination, Pertuit testified that Foret told him to
have the 11 welders to Westwego “the following week.” Pertuit
was then asked and he testified:

Q. [By Mr. Morgan]: Sir, is there any reason you know
why Walter Brown was transferred a week before the
other ten employees?
A. No, I sure couldn’t answer that. I don’t know.
JUDGE EVANS: I will ask you, sir. How could that have
happened? Given the sequence that you have given us, that
you recall what Mr. Foret said, “Next week have eleven
guys over there,” and as far as you recall you did what you
were told, how could it be that Brown showed up—got
over there a week early?
THE WITNESS: To be honest with you, I can’t answer
that, Your Honor. I don’t know.
JUDGE EVANS: And you don’t remember even though
Brown was the only one who was protesting the move. Is
that true? That is what you are telling me?
THE WITNESS: He is the only one that requested to stay
where he was. He didn’t actually—
JUDGE EVANS: Yes. I am saying even though [Brown
was] the one guy who protested, you can’t remember why
he had a different arrival date [at Westwego]?
THE WITNESS: No, I sure can’t.

Respondent introduced its Exhibits 852 and 921 which show
that, of the 15 shipfitters who were sent to Westwego in July, 9
were transferred in the same week that Brown was transferred,
1 week before any other welders were transferred.
Ernst (vol. 147) acknowledged that he received the union
“guarantee” handbill that Brown left with his clerk, but Ernst
denied that he ever mentioned it to Brown, and he denied dis-
cussing it with Pertuit. Ernst further testified that Brown was
one of several welders that had been loaned to the tank-testing
operation by the welding separtment. By July Brown was doing
mostly tank-testing and little welding. At that time:

[Pertuit] went out on the job and noticed that Walter
Brown was doing tank-testing work and not welding, and
he approached me about it and asked me why was he do-
ing the tank-testing work when he needed welders so
badly. And I told him that we were catching up. And he
said, Well, I would like to have him back. . . . Said he
wanted to send him to Westwego; he had a—he had to
send a lot of welders to Westwego. . . .
So we sent him back.

Ernst testified that Brown left his supervision “the next day”
after Pertuit requested his return. Ernst testified that he told
Young that Brown was to be sent back to the welding depart-
ment. Ernst acknowledged that there were two other welding
department welders on Young’s crew at the time that Pertuit
requested the return of Brown, but neither of them was men-
tioned when Pertuit asked that Brown be returned to the weld-
ing department for transfer to Westwego. Ernst testified that he
did not replace Brown, and his operation now has no welding
department welders assigned to it.
Young (vol. 147) flatly denied that he had any conversations
about the Union with Brown, he denied that he ever asked
AVONDALE INDUSTRIES

1445
Brown if he favored the Union, he denied that Brown told him
that he would vote for the Union, and he denied that he ever
saw Brown wear prounion insignia.
Brown’s Transfer to the Westwego Yard—Conclusions
When he was on direct examination, Brown did not testify
when he wore a “Union-Yes” sticker on the bill of his hardhat;
on cross-examination he testified that he began wearing the
sticker in “April or May,” but he did not testify to how long he
wore it; for all that this record shows, Brown took the sticker
off immediately after he put it on. Brown’s fellow employee,
and the General Counsel’s witness, Dumas did not corroborate
Brown’s testimony to the extent it may have been intended to
convey the impression that Brown wore prounion insignia at
Westwego; moreover, Dumas testified that he could remember
no union activity that Brown engaged in at Westwego. It is
clear enough to me that Brown did not wear prounion insignia
after his transfer to Westwego. I am further unconvinced by his
testimony that Brown wore prounion insignia long enough to be
noticed by his supervisors, and I credit the denials of Young,
Ernst, and Pertuit that they saw Brown wearing any prounion
insignia in the main yard.
I further credit Young’s denial that he interrogated Brown.
Brown testified that another employee told him to go to
Young’s office, the classic locus of managerial authority. If that
had happened, it would assuredly have been mentioned in
Brown’s affidavit. Not only was the office not mentioned,
Brown testified in his affidavit that Young questioned him in
his work area. The difference is too much to logically over-
come, a fact reflected by the General Counsel’s not even at-
tempting to secure an explanation of the inconsistency from
Brown on redirect examination. The inconsistency causes me to
discredit Brown on this point, and I shall therefore recommend
dismissal of that allegation of the complaint.
Other testimony by Brown that bears on the issue of relevant
employer knowledge, however, is not in dispute. First, Brown
sent to Ernst a union “guarantee” handbill that, in effect, asked
supervisors to sign a statement that all of the Union’s propa-
ganda was true. Second, when Young found some union hand-
bills on his desk, he stated that “Brown” must have put them
there. Third, Brown answered Ernst’s statements at a June 10
employer campaign meeting by stating: “that there was no need
for him standing up there lying to me, or I am lying to him.”534
These three elements of undisputed testimony by Brown show
that, at the time of his transfer to Westwego, Respondent’s
supervisors knew of his prounion sympathies. Pertuit testified
that he made the decision to transfer Brown, but I do not credit
Pertuit’s testimony, or Ernst’s, that before the transfer Ernst had
not told Pertuit about the “guarantee” handbill that Brown had
sent to him. This is a virulently antiunion employer and I sim-
ply do not believe that the assistant superintendent of one
department, Ernst, would have failed to tell the superintendent
of the department from which Brown had come, Pertuit, of the
“guarantee” handbill that Brown had submitted, in effect asking
Ernst to admit that he had harassed workers, imposed petty
work rules, and unjustly laid off and discharged workers. I
further believe, and find, that Pertuit had knowledge of
Brown’s speaking up to Ernst at an employer campaign meet-
ing and, in effect, accusing him of lying. Therefore, I conclude

534 Ernst only denied having a “discussion” about the Union with
Brown; to the extent that this testimony was designed to express a
denial of Brown’s specific testimony, I discredit it.
that the General Counsel had presented a prima facie case that
Brown was unlawfully transferred to Westwego, and later dis-
charged, and the burden shifts to Respondent to demonstrate by
a preponderance of the evidence that it would have taken the
same actions against Brown even in the absence of his known
protected activities. Respondent’s defenses must therefore be
examined.
On brief, Respondent argues that: “Brown was transferred
because the Westwego yard needed welders and Brown was
available.” As I indicated in Armstrong’s case, I believe that
Respondent has advanced a plausible reason for transferring
some welders to Westwego in July, but that does not mean that
it has advanced a plausible reason for transferring all 11 of the
welders in July. If Brown’s welding talents, in addition to those
of the other 10 welders, were needed at the Westwego yard,
they would presumably have been used before he was dis-
charged on September 23, some 40 days after the transfer. They
were not; instead, when he arrived at Westwego, Brown was
told by Petticrew that there was no welding work for him to do
and he was assigned to doing rigging work. After that, he was
given cleaning and shipfitter’s-helper work through the day that
he was discharged. As Brown did this rigging, cleaning and
helping work at Westwego, he was being paid the highest pay
of any welder who got transferred to Westwego. Although the
Board will not substitute its judgment for Respondent’s busi-
ness decisions that contain at least some plausible basis, the
decision to transfer Brown, at least as early as July 13, has
none.
Moreover, Brown was “available,” but no more so than the
approximately 350 other welders that were in the welding de-
partment at the time. And there were other available welders
who were then doing tank-testing work. Ernst testified that
there were several welders working in tank-testing at the time
that Pertuit requested that Brown be returned to the welding
department, and he further acknowledged that there even were
two welders working on Young’s crew at the time. None of
these other welders, however, was suggested for transfer to
Westwego by Pertuit. (At one point Pertuit testified that he
asked Ernst to check and find out if Brown did, in fact, drive
his own vehicle to work. Pertuit did not ask Ernst to check on
any other employee.) Also, none of the other 10 welders who
were transferred to Westwego had been working in the shipfit-
ting department as tank-testers. Therefore, although Pertuit
testified that there was “plenty” of welding work for the weld-
ers in the welding department, and although Pertuit testified
that Ernst told him that he did not need welders to test tanks,
and Ernst testified that his need for welders was slowing down,
Pertuit did not select any other welders from tank-testing to go
to Westwego, only Brown. And Brown was transferred to
Westwego a week before any other welders, but Pertuit could
not explain why.
Finally, Respondent contends that Brown was selected be-
cause he had his own transportation to work. Heaps, however,
did not testify that he, as vice president of the Westwego opera-
tion, required employees to have their own transportation. Also,
the pipe department supervisors (Fradella, Whitney, Whitting-
ton, and LeFort) did not testify that they considered an employ-
ees’ owning his own vehicle to be a requirement for selecting
an employee for transfer. If private transportation had been
some kind of job requirement for working at Westwego, Heaps
would presumably have so testified. I do not believe that trans-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1446
portation was a factor in the selection process of Brown (or
Fleming in the case that immediately follows in this decision).
Respondent’s defense for the transfer of Brown requires be-
lief in its testimony that Pertuit, alone, made the decision that
Brown be transferred to Westwego. I do not, however, believe
that testimony. I believe that Ernst suggested that Brown be
transferred to Westwego, and Pertuit agreed. As I stated in
Armstrong’s case, I do believe that Heaps requested that ship-
fitters and welders be sent to him from the main yard in July. I
further believe that Heaps first requested shipfitters; this is why
nine shipfitters were sent to Westwego before any other em-
ployees were sent, except Brown. I further believe that Ernst
selected Brown to go along with the first nine shipfitters in
order to rid himself of the employee who sent him the union
handbill (which asked Ernst to agree to “stop” various prac-
tices) and who, in effect, accused Ernst of lying at an employer
campaign meeting. Because Brown was Ernst’s choice for
transfer, Pertuit was completely unable to suggest any reason
why Brown was selected to go to Westwego a week before all
10 other welders, even though Brown was the only one of the
11 welders who objected to the transfer to Pertuit, personally.
At minimum, Pertuit’s testimony that he could not remember
why Brown was transferred to Westwego a week before the
other welders is incredible. The spurious nature of the testi-
mony that Pertuit made the decision to transfer Brown to
Westwego is further shown by the fact that Pertuit and Ernst
differed on when Pertuit asked that Brown be taken from the
shipfitting department and returned to the welding department;
Pertuit testified that the request was made many times, but
Ernst testified that it was made only once, the day before
Brown’s transfer to Westwego. Finally on this point, I found
totally incredible Pertuit’s testimony that he decided to transfer
Brown because he saw Brown doing only tank-testing work;
other welders who were then assigned to tank-testing were
presumably not doing welding work either, and Pertuit did not
even consider any of them for transfer.
I find that Brown was transferred to Westwego, at the sug-
gestion of Ernst to Pertuit, because of his protected activities of
sending the handbill to Ernst and contradicting Ernst at an em-
ployer campaign meeting. Respondent has therefore not shown
that it would have transferred Brown to Westwego, at least as
early as it did, even in the absence of his protected activities.
Accordingly, I conclude that by transferring Brown to West-
wego on July 13, 1993, Respondent violated Section 8(a)(3) of
the Act.
(2) Brown’s discharge for insubordination and cursing
a foreman
Brown testified that in mid-August, after he was assigned to
work on the second shift under Wheeler, Wheeler asked him
“how did I feel about the Union.” As he had responded to
Young (at the main yard), Brown told Wheeler “I can’t miss
nothing I never had.” This questioning is not alleged as a viola-
tion; the General Counsel introduced the exchange as evidence
of Respondent’s knowledge of Brown’s continuing prounion
sympathies at Westwego through the date of his discharge on
September 23. Also as evidence of Respondent’s knowledge of
Brown’s prounion sympathies after he was transferred to
Westwego, the General Counsel further relies on the fact that
on July 21, the Union, on behalf of Brown, filed the charge in
Case 15–CA–12225–3, alleging that Brown’s transfer to West-
wego had violated Section 8(a)(3).
Brown testified that on the day of his discharge he was work-
ing with employee Dumas. Brown assisted Dumas in a job of
leveling a large object. Measurements had to be taken; Brown
and Barber had only a tape measurer, and they decided they
needed a surveyor’s stick. Surveyors’ sticks are about 6 or 7
feet long, and they fold (according to Dumas). From where
Dumas and Brown were working, the nearest place that survey-
ors’ sticks were stored was Barber’s office, about one-fourth
mile away. Brown started walking toward Barber’s office. At a
point beyond Dumas’ hearing, Brown saw Petticrew (who was
working late) and Wheeler standing in a road. Petticrew had a
bicycle. Brown testified that he then asked Petticrew if he could
borrow the bicycle to get a surveyor’s stick. According to
Brown:

Jerry said I didn’t need a surveyor stick, to use a
measuring tape.
And I said that I couldn’t use a measuring tape because
a measuring tape is not accurate.
So he said, “That is what I use—a fucking tape.” . . .
I said, “That is why all the work around here is
wrong.”
Then he said, “That is why I use a tape.”
So I walked away from him. . . . I was going to get the
surveyor—towards the office, sir. . . .
He called me back. . . . He said, “You cursed me.” . . .
I said, “Curse you? If I did, I am sorry.”
He said, “That is not good enough.” He told Dan
Wheeler, “Automatic insubordination. Fire him.”

Petticrew walked toward Barber who had come to the area.
Wheeler escorted Brown from the yard. Brown testified that he
had walked “[a]bout seven or eight feet” from Petticrew when
Petticrew called him back. Brown denied cursing Petticrew or
using any curse words in the exchange with Petticrew.
Brown testified that the next day he returned to the West-
wego plant and spoke with Heaps in an attempt to regain his
job. According to Brown, “I said, ‘Jerry said I cursed him. If I
did, I was sorry; But I didn’t curse him.’” Brown testified that
Heaps said he would look into the matter.
On cross-examination Brown acknowledged that in a state-
ment that he gave to the Louisiana Department of Labor, about
a week after the discharge, he stated:

When discussing the conversation with Mr. Petticrew,
it was hot and tempers were short. I do not recall either
one of us cursing, but when I walked off he called me back
and said that I cursed him. I did not remember cursing
him, but I apologized anyway.
He got on his bike and went to the superintendent [ap-
parently Barber] and told him I said fuck him. I was fired
for insubordination. I do not recall cursing him, and I think
that I would have remembered that.

On redirect examination Brown could not explain why his
statement to the Louisiana Department of Labor stated that he
could recall no cursing in his exchange with Petticrew.
Brown’s Discharge—Respondent’s Evidence
Petticrew testified:

So then Dan [Wheeler] was talking and Mr. Brown
came up. He says, “Man, let me use your bike. I am going
to get the stick.”
AVONDALE INDUSTRIES

1447
I said, “You don’t need to go get the stick. No, you are
not using my bike. . . .
[Brown replied,] “Man, let me use your fucking bike.
I told him no.
Then he turned around and he said, “Man, fuck you. I
don’t have to put up with your shit.”
And at that time, I terminated him. And I asked Mr.
Wheeler to clear him off the yard, bring him to the tool
room and clear out. And I informed that I had fired him for
insubordination, that I don’t curse my people. And I don’t
expect my people to curse me.

Petticrew denied that Brown offered any sort of apology. Pet-
ticrew testified that he discharged Brown because: “Mr. Brown
was cursing and not following orders. Cursed me.”
Wheeler testified:

And Mr. Brown told him to, “Let me use your bike. I
am going to get the fucking stick.”
Mr. Petticrew told him, “No.”
Mr. Brown then told him, “Fuck you. I am not going to
put up with any of your shit,” and he started to go off, and
Mr. Petticrew terminated him.

Wheeler also denied that Brown offered any sort of apology.
Brown’s Discharge—Conclusions
As well stated by Respondent on brief: “Brown’s excuse, ‘If
I did, I am sorry,’ is the type of statement made by someone
who knows he did something wrong, but doesn’t want to admit
it.” I agree. Moreover, I found the testimony of Petticrew and
Wheeler credible on the point of what Brown said to Petticrew.
The General Counsel introduced a great deal of evidence that
other employees had cursed around, and at, supervisors without
punishment; however, I found this evidence to be unpersuasive.
Unlike many other elements of the employment relationship
which arguably can involve discipline, one’s sensitivity to be-
ing cursed is an intensely personal thing. Like all other human
beings, different supervisors are going to react differently to
different cursings by different people in different circum-
stances. There can be no accurate, or fair, comparison of any
two such situations, unless it is shown that one individual em-
ployee has been allowed to curse one individual supervisor with
essentially similar words under essentially similar circum-
stances. Without such history, an employee assumes the risk of
how the supervisor will react, no matter what some other su-
pervisor has done (with different cursings by different people,
under different circumstances). Here, certainly, there is no his-
tory between Brown and Petticrew which could be argued to
license Brown to respond to Petticrew as he did and tell Pet-
ticrew, “Fuck you.”
Moreover, Brown admitted that he combined his cursing of
Petticrew with direct insubordination of Petticrew’s order to go
back to his job and use the tape for the leveling job. Brown
admitted that he turned from Petticrew and started walking
toward Barber’s office to get a surveyor’s stick, something that
Petticrew had just told him not to do. Again, by engaging in
such conduct, Brown assumed the risk of how Petticrew would
react.
I therefore conclude that Respondent has shown that, even
absent his protected activities, it would have discharged Brown,
and I shall therefore recommend dismissal of this allegation of
the complaint.
e. Charles Fleming
Charles Fleming (vol. 22), a welder, was transferred from the
main yard to the Westwego yard on July 21, 1993, and Fleming
was discharged on August 26 while working at the Westwego
yard. Paragraphs 102 and 118 of the second complaint, respec-
tively, allege that by transferring and discharging Fleming Re-
spondent violated Section 8(a)(3). The General Counsel con-
tends that Fleming (along with Brown, Armstrong, Melton, and
Gonzalez) was transferred to Westwego and discharged be-
cause of his known union activities and expressions of sympa-
thy which included his serving as an alternate observer for the
Union at the June 25 Board election, his wearing prounion in-
signia, and his speaking favorably about the organizational
attempt directly to supervisors. Respondent admits that its su-
pervisors at the main yard knew of Fleming’s prounion sympa-
thies, but Respondent answers that Fleming was transferred to
the Westwego yard, along with the 29 other employees, solely
because of business necessities. Respondent further answers
that Fleming was discharged solely because he was insubordi-
nate to, and cursed, a foreman. The General Counsel replies
that the business-necessity defense for the transfer was a pretext
as shown by the fact that Fleming was not used as a welder at
Westwego until just before his discharge, and he was then used
only in a limited capacity that did not take advantage of his
skills. The General Counsel further replies that the insubordina-
tion defense is a pretext because the conduct attributed to Flem-
ing did not occur. Alternatively, the General Counsel replies
that Fleming was treated disparately because other employees
were allowed to engage in similar conduct but they received
lesser, or no, discipline. Ultimately, I find and conclude that
Fleming was not unlawfully transferred to Westwego, but he
was unlawfully discharged.
Fleming credibly testified that he wore a “Union-Yes”
sticker on his hardhat from the week before the June 25 Board
election until he was discharged, and he also wore a union pin
on his work clothes during the week before the election. Flem-
ing further testified that, 2 weeks before the June 25 Board
election, in a work area:

Vice President Carroll Danos had paperwork on
NASCO and the Union there causing them to lose the
Texaco contract, and he was showing me this paperwork
on it. And he was showing me paperwork on the Metal
Trades Council, a financial statement, saying that this is
where my union dues will be going. . . .
[In reply] I just commented on the statement he had
given about the financial statements about our union dues,
concerning I was saying that the peoples need the Union
here at Avondale, and it would be beneficial for the people
to have a union here at Avondale.

Fleming further testified that two days before the Board elec-
tion Danos spoke at an employer campaign meeting conducted
in the office of General Foreman Norman Brown. According to
Fleming:

Vice President Carroll Danos was talking about the
Company didn’t have any money to give raises, and the
Company had no contracts, and he didn’t know when they
would get a contract.
And he was talking about the Union would be bad for
the Company because for—there might be a strike called;
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1448
the Union might want to get raises, get money from the
Company to get raises.
And after he finished talking, I spoke out and said—I
explained to them, the peoples there, that a union is the
peoples, and the membership—members have to vote a
union—vote for a strike if there would be a strike.
[At that point] Vice President Carroll Danos asked me
to leave the meeting and go back to work.

Fleming testified that he obeyed Danos’ instruction and left the
meeting.
It is undisputed that Fleming was a alternate observer for the
Union at the Board election, and the Union notified Respondent
that Fleming would be acting as such.
(1) Fleming’s transfer to the Westwego yard
Fleming testified that on Friday, July 16, he was doing heli-
arc pipe welding, a more sophisticated type of welding that is
done at the main yard. There was much work for him to do, but
about noon he was approached by Foreman Douglas LeBlanc
and told to report to the Westwego yard. Fleming testified that
he asked LeBlanc why he was being transferred to the West-
wego yard, and LeBlanc told him that “an order had come
down from the superintendent’s office.”
On Monday, July 19, Fleming was assigned to work under
Westwego Welding Foreman Jerry Petticrew. For the first 3
days that he was at Westwego Fleming was assigned to do rig-
ging rather than welding work. During the next several weeks
he did welding work, but not heli-arc welding of pipe as he had
done at the main yard.
Fleming’s Transfer to the Westwego Yard—Respondent’s
Evidence
As noted in Brown’s case, Pertuit testified that he asked his
general foreman to submit to him names of welders who had
their own transportation as candidates to be transferred to
Westwego. LeBlanc (vol. 152) testified that he was present
with General Foreman Norman Brown when Pertuit asked
Brown to submit such names. After Pertuit left their presence,
LeBlanc told Brown that he knew that Fleming and welder
Ralph Laurent had their own transportation to work. The next
day, Brown told LeBlanc that Fleming and Laurent would be
transferred to Westwego during the following week. On the day
before Fleming and Laurent were to be transferred, LeBlanc
told them to report to Westwego the next workday. LeBlanc
testified that he told Fleming that the reason he was being trans-
ferred was that Fleming had his own transportation. LeBlanc
acknowledged that Fleming had spoken openly in favor of the
Union at one employer campaign meeting and that he had worn
various types of prounion insignia. LeBlanc testified, however,
that Laurent never wore prounion insignia and he had no idea
whether Laurent had favored the Union. On cross-examination,
LeBlanc acknowledged that he named no other employees who
had their own transportation to Brown, and Brown did not ask
for any other names. Brown did not testify.
Fleming’s Transfer to the Westwego Yard—Conclusions
Respondent admits that its supervisors knew of Fleming’s
prounion sympathies at the time of his transfer to Westwego.
Specifically, Pertuit admitted that Fleming spoke up in favor of
the Union at employer campaign meetings. Also, it is undis-
puted that Fleming was an alternate observer at the Board elec-
tion. I have credited Fleming’s testimony that he wore prounion
insignia through the date of his discharge. Respondent’s animus
toward such expressions of prounion sympathies, especially
expressions through the wearing of prounion insignia, is estab-
lished throughout this decision. I therefore find and conclude
that the General Counsel has presented a prima facie case that
Fleming was unlawfully transferred to Westwego, and thereaf-
ter discharged, and the burden shifts to Respondent to demon-
strate by a preponderance of the evidence that it would have
taken the same actions against Fleming even in the absence of
his known protected activities. Respondent’s defenses must
therefore be examined.
A week after Brown was transferred to Westwego, Respon-
dent transferred 10 welders to Westwego, including Fleming.
The General Counsel has proved that Brown was transferred for
spurious reasons, principally because Brown was never used as
a welder at Westwego. The same is not true of Fleming. Flem-
ing did welding within a few days after his transfer. Perhaps it
was not as sophisticated a type of welding as he had done at the
main yard, but it was welding that Respondent needed to be
done. Although it was a few days before Fleming did that weld-
ing, he, along with the other welders, was ready as the engi-
neering drawings arrived. From all that is shown by this record,
Fleming was called upon to weld as soon as any welder was.
Finally, although he had plenty of work to do at the main yard,
so did all of the other welders.
I shall therefore recommend that the allegation that Fleming
was unlawfully transferred to Westwego be dismissed.
(2) Fleming’s discharge for insubordination and cursing
a foreman
On the morning of August 26, Fleming was assigned to weld
some beams on to some plates. He worked at that job for 2
hours, but then he was approached by Eugene Edwards, a
leadman who also worked under Petticrew. Edwards told Flem-
ing that the plates had previously been lined up incorrectly (by
the shipfitters, not Fleming or any other welder) and that the
welds that Fleming had done would have to be torn out. Ed-
wards told Fleming to go and weld at another point in the pro-
ject and do similar welding there. Fleming went to the other
point and welded for 2 more hours. At some point, Edwards
and Petticrew approached Fleming. Petticrew said that the sec-
ond section had also been laid out wrong, and Fleming’s work,
again, would have to be torn out. Fleming’s reaction to Pet-
ticrew is the reason advanced for the discharge.
According to Fleming:

Foreman Jerry Petticrew came up on the plate, him and
three other work leadermans. I was working, welding. He
turned and told me to stop welding.
I said, “Hell, you want me to work or not work?”
He said, “When I tell you to work, you work, and
when I tell you to stop, you stop.”
I said, “Yes, right.”
He say, . . . “I am terminating you for insubordina-
tion.”
So I gathered my tools up and turned them in to the
toolroom. . . . I was escorted out of the yard by work
Leaderman Eugene [Edwards].

Although he admitted cursing during the exchange with Pet-
ticrew, by using the word “hell,” Fleming denied cursing Pet-
ticrew or otherwise cursing during the exchange.
AVONDALE INDUSTRIES

1449
Edwards, who was still employed by Respondent at time of
trial, was called by the General Counsel. Edwards testified:

Fleming was welding, you know, because we had
told—it was told all right to weld the beams into another
section of a beam. We stopped where we were at, and he
only had to move like two feet, and he was welding some-
thing, and Jerry [Petticrew] said . . .” Stop.”
And that is when Fleming said, “Man, what the . . .
fuck is going. You want me to work, or you don’t want me
to work.
And Jerry [Petticrew] says, “Look, if I tell you to
work, you work; and when I tell you to stop, you stop.”
. . . He [Fleming] said, “Man, you all just can’t get your
shit straight.” . . .
And then . . . [Petticrew] said, “You are fired.” . . .
Well, I had told him [Fleming], “Look, stop welding.
Go over there and clean the welds off.”. . . So he went
over there and started cleaning the weld, and Jerry said,
“You are fired.”
I go [ask Petticrew], “Fired for what?”
And he says, “For not doing what I told him.”
I said, “I didn’t hear him refuse to do anything.” . . .
And he says, “Didn’t you hear him say, no, he
wouldn’t?”
I said, “No, I did not hear that.”

Edwards testified that he was less than 3 feet from Petticrew
and Fleming when those two had their exchange, and he heard
nothing that Fleming said that would indicate that Fleming was
refusing to stop welding. Edwards further testified that Flem-
ing, in fact, stopped welding when Petticrew told him to stop.
Fleming’s Discharge—Respondent’s Evidence
Petticrew testified that he discharged Fleming for “Insubor-
dination of cursing me and disrespecting an order.” Petticrew
testified that when the confrontation with Fleming occurred,
Leadman Johnny Edge was right beside him, but Leadman
Edwards was 10 feet away. According to Petticrew:

Well, when I observed it was in the wrong location, I
asked Mr. Charles [Fleming] to stop welding it, to hold up
welding. And he stood up and he told me—he says, “Man,
I am not going to be messed with. I am welding this.” But
he was pretty angry and he had a high voice.
And he took his welding line and he threw it down. So
I explained to him that the beam was in a location—I said,
“Just hold up till we get some engineering to see if this is
right or wrong,” because I felt it was wrong, which it was.
And he said, “Man, why don’t you go fuck off some-
where else. You don’t know what the fuck you want. I am
welding this fucking thing.”
I said, “Charles, I am your foreman. Just do what I am
telling you. I am telling you to stop welding. There ain’t
no big harm because you have got to stop working, you
know.”
So again, he said, “Go fuck off somewhere else.” And
at that time, Your Honor, that is when I terminated him.

Petticrew further testified:

Well, after I terminated Mr. Brown [sic], I turned
around—and again, I am standing right here and I turned
around and he [Edwards] was standing right here. And I
asked him—because I had him as my lead—my welding
leaderman and I asked him, “Now, you heard that, the guy
cursing me out and you heard I terminated him.” . . .
He said yes.
So at that time, I said, “Well, get him out.”

Petticrew denied that Edwards told him that he had not heard
Fleming refuse to stop welding.
Petticrew testified that within an hour after the incident, he
had Edge write out a statement concerning what he heard. Re-
spondent placed Edge’s statement, and a statement that Pet-
ticrew had also made on that day, into evidence. The statement
by Edge is essentially consistent with the trial testimony by
Petticrew. Respondent did not call Edge to testify.
During the General Counsel’s case, Fleming denied that he
refused to follow Petticrew’s instruction to stop welding; he
denied that he cursed Petticrew; he denied telling Petticrew to
“go fuck off somewhere else”; he denied that he told Petticrew,
“you don’t know what the fuck you want”; he denied telling
Petticrew, “I am fucking welding this”; he denied that he told
Petticrew that he would not “be messed with,” and he denied
that he threw his welding stick to the ground.
Fleming’s Discharge—Conclusions
Again, Fleming had expressed his prounion sympathies to
his supervisors at the main yard, he was even ordered out of an
employer campaign meeting by one of Respondent’s vice
presidents because he vocally supported the Union, he served
as an alternate observer at the Board election, and he continued
to wear prounion insignia after he was transferred to the West-
wego yard. Respondent’s animus toward such employees is
established throughout this decision, and Respondent’s reason
for discharging Fleming must be examined.
Petticrew testified that he discharged Fleming for “Insubor-
dination of cursing me and disrespecting an order.” This two-
part reason is essentially the same as that advanced for Pet-
ticrew’s lawful discharge of Brown, but the evidence in support
of the defense is quite different.
The insubordination part of the defense requires the conclu-
sion that Fleming expressed an intent to continue to do work
which he had just been told was laid out incorrectly. Aside
from the fact that Fleming would have known that the work
would have to be redone, probably by him, there is no conten-
tion either that Fleming wanted to do work that was wrong or
that he was unwilling to take a break. In addition to the illogic
of the proposition, the testimony that was offered in support
was credibly denied not only by Fleming but by current em-
ployee Edwards. Finally, Respondent failed to call Edge to
testify on the matter, even though it possessed a written state-
ment from Edge that was consistent with the testimony of Pet-
ticrew. Respondent offered no reason for not calling Edge, even
though it ostensibly had every reason to rely on his testimony.
I believe, and find, that Fleming questioned why he was be-
ing told by Petticrew to stop work, but he did not refuse to stop
working. (That is, when Petticrew told Fleming to work when
he said to work and to stop when he said to stop, Fleming
stopped.) Fleming, in questioning why he was being told to
stop working, did use the word “fuck,” as described by Ed-
wards, but he did not use the word as Brown did (“fuck you”),
and he did not tell Petticrew to “fuck off.” (Even if Fleming had
said the latter, the imperative was no more than common shop
talk for “go jump in the lake,” and it certainly had no more
demeaning connotation toward Petticrew.) Fleming simply did
not curse Petticrew, and I do not believe that Petticrew thought
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1450
he had been cursed. That is, I find that Fleming neither cursed
Petticrew nor refused to stop welding when Petticrew told him
to stop welding.
I therefore find that Respondent has not shown that it would
have discharged Fleming even absent his prounion sympathies,
and I conclude that by discharging Fleming Respondent vio-
lated Section 8(a)(3) of the Act.535
f. Charles Kent’s discharge for poor workmanship
Charles Kent (vols. 52, 99) was a shipfitter at the Westwego
yard until he was discharged on June 6, 1994.536 The fourth
complaint, at paragraph 37, alleges that Kent’s discharge vio-
lated Section 8(a)(3). The General Counsel contends that Re-
spondent discharged Kent because of his known union activi-
ties and expressions of sympathy which included his wearing
and otherwise displaying prounion insignia. Respondent an-
swers that its supervisors had no knowledge of any prounion
sympathies that Kent may have held at any relevant time, and it
further answers that Kent was discharged solely “for negligence
and inefficient work.”537 the General Counsel replies that the
defense asserted is a pretext because Kent only did acceptable
work; alternatively, the General Counsel replies that Kent was
treated disparately because other employees were merely given
warning notices for unacceptable work. Ultimately, I find and
conclude that Kent performed unsatisfactorily, but he was
treated disparately, and he was discharged unlawfully.
Kent worked at the main yard until he was transferred to the
Westwego yard in May.538 At the Westwego yard Kent worked
as a shipfitter under the immediate supervision of Petticrew and
Barber. Kent testified that from February through the date of
his discharge he wore “Union-Yes” stickers on his hardhat, and
he maintained such a sticker on his lunch kit.
On June 6, Petticrew assigned Kent to install a water-tight
door frame into a bulkhead. It is not necessary to detail this
work. It suffices to say that according to the affidavit that Kent
gave during the investigation, and according to some admis-
sions that he made at trial, Kent did a plainly unacceptable job.
Kent testified that he and his helper finished the job by lunch-
time. When they returned to the area from lunch, according to
Kent:

Petticrew came down; he just start shouting, “You
have to go. You have to go. I can’t put up with you. You
have to go. I can’t tolerate you. You have got to go.” Just
kept repeating it over.
I told him I needed my job. Could I be transferred back
to the main yard. But he just say, “You have to go. Come
up to the office.”

Kent followed Petticrew to an office. Petticrew went in and
came back out with a warning notice. Citing major offense-2 of
the Avondale Employees’ Guide, Petticrew wrote:

535 In view of my finding that Fleming engaged in no misconduct, I
need not address the General Counsel’s alternative theories of disparate
treatment of Fleming. (If I did, however, I would note the many in-
stances of insubordination that were punished only by warning notices
that are listed in the case of alleged discriminatee Charles Bennett,
supra, as well as the many exhibits that the General Counsel cites on
brief.)
536 All dates mentioned in Kent’s case are in 1994, unless otherwise
indicated.
537 R. Br. P. “Westwego Yard—73.”
538 Again, the complaint does not allege that Kent’s transfer to
Westwego violated the Act.

Intentional negligence, inefficiency or substandard
workmanship. Employee has problems following instruc-
tions. Discharge.

Kent testified that he asked Petticrew what “intentional negli-
gence” meant; Petticrew would only repeat that “You have to
go.”
Petticrew testified that he discharged Kent for his “negli-
gence” and “inefficiency” in performing his June 6 assignment.
When asked what he meant by those terms, Petticrew testified:
“Well, I felt that he wasn’t paying attention to me, neglected
me, and did it the way he wanted to do it, or he just didn’t want
to do it.” Petticrew did not testify that any warning notices that
Kent may have received played any part in his decision to dis-
charge Kent.
Kent’s Discharge—Conclusions
Kent testified that he wore “Union-Yes” stickers on his
hardhat, and he kept one on his lunchbox at Westwego. Pet-
ticrew denied seeing the prounion insignia that Kent wore, but I
do not credit that denial. As stated before, Respondent’s animus
toward the organizational attempt in general, and Respondent’s
animus toward those who wore prounion insignia in particular,
is found throughout this decision. As I have found above, such
prounion insignia were often made the object of threats to em-
ployees. In the first discharge case that I considered in this
decision, that of Barbara Marshall, I summarized the evidence
of Respondent’s animus toward those who wore prounion in-
signia, much of which evidence went undenied at trial. Kent’s
case is the last allegedly unlawful discharge to be considered,
and the summary, in truncated form, bears repeating: to wit: (1)
Autin told employee Adeline Plaisance that he could not be-
lieve that she would wear prounion insignia because, “Well, the
stickers on your hat. . . . If the wrong people got ahold of it, it
could hurt you. . . . I am just telling you this for your own
good.” (2) DeNicola told employee Junius Duplantis that: “the
guys walking around with stickers and shirts on better hope that
the Union gets in because if it don’t, they are gone.” (3) Falgout
told employee Richard Bell that, “Well, if you like working for
me and I was you I would take that sticker off your hat because
if you-know-who found out, he would have a fit about the
sticker.” (4) A. S. Russel told discriminatee Michael Molaison,
who was wearing a “Union-Yes” sticker on his hardhat, that
“we wasn’t supposed to have anything on our hardhats except
the numeral that represented what department we was in, our
clock number and our name on our hardhat.” (5) Crutchfield
told employee Romalis Martin that he had removed the “Union-
Yes” sticker from the hardhat of Martin “because some superin-
tendents were asking who were wearing stickers and who
weren’t.” (6) Kenny Danos told discriminatee Richard St.
Blanc that “I am not trying to tell you what to do, but I want
you to know that word of you wearing this button has reached
Gerry Gerdes [the de facto assistant superintendent of the Elec-
trical Department].” (7) Grimes told St. Blanc that he was
“fucking up” by wearing a union button. (8) Folse threatened
alleged discriminatee Robert Ruiz with unspecified reprisals
because he was wearing prounion insignia. (9) Nathan Howard
instructed alleged discriminatee Kenneth Patterson and another
employee to remove union insignia from their clothing. (10)
Howard further told Patterson that he would not receive a wage
increase because he had been seen wearing prounion insignia.
(11) Finally, Bourgeois told his employees that they would be
AVONDALE INDUSTRIES

1451
discharged if they were caught wearing a prounion sticker.
Other such threats are found throughout the above sections of
this decision. A prima facie case of unlawful discrimination
against Kent having been established by the General Counsel,
the burden shifts to Respondent to demonstrate by a preponder-
ance of the evidence that it would have taken the same actions
against Kent even in the absence of his known protected activi-
ties. Respondent’s defenses must therefore be examined.
Well before Kent testified, the General Counsel served upon
Respondent Subpoena Duces Tecum B-87873, which de-
manded, inter alia, notes that had been created regarding Kent’s
discharge. Kent testified on day-52 of trial. On day-87, Re-
spondent’s counsel stated that he had just gotten to the investi-
gation of the Kent case 3 weeks before, and he had found notes
and a photograph to which the notes referred. Counsel offered
no reason, or testimony, to explain why he did not seek and
produce the notes, and photograph, when they were subpoe-
naed.539 Upon the General Counsel’s objections and motions, I
excluded under Bannon Mills540 the notes and photograph and
testimony provable by the notes and photograph. On brief, Re-
spondent urges reversal of my rulings. I have considered the
authorities that Respondent cites, but none covers the case
where a party simply ignores a subpoena as did Respondent in
Kent’s case. As I stated at trial by written ruling,541 I believe
that Respondent’s ignoring the subpoena is tantamount to will-
fulness. I adhere to my ruling.542
On brief, although Respondent makes an extensive argument
that I erred in excluding its evidence of just how bad Kent’s
work was, Respondent makes no argument that, had its proffers
been accepted, it would have been able to meet its Wright Line
burden. That is, Respondent does not argue that its rejected
evidence would have shown that Kent would have been dis-
charged even absent his expressions of prounion sympathies.
Indeed, of the 47 discharges involved in this decision, Kent’s is
the only case where Respondent makes no Wright Line argu-
ment.
The reason for Respondent’s failure even to make a Wright
Line argument is obvious. The General Counsel introduced
over 100 warning notices, issued in the period of 1990 through
1994, for violations of major offense-2. By the content of these
warning notices, or by other documents that are in evidence, the
General Counsel proved that none of these employees were
discharged.543 Moreover, there is no evidence, other than Pet-
ticrew’s conclusion, that Kent’s inferior work performance was

539 On Brief, p. “Westwego Yard-74,” Respondent states: “It is un-
disputed that the photographs of Kent’s attempt to install the watertight
door were not subpoenaed at all.” This statement is false. See the collo-
quy of day-87 of trial where counsel acknowledged that Petticrew’s
notes, which incorporate the photograph, were, in fact, subpoenaed.
(The Tr. 20, 163, LL. 11–12, is corrected to change “MR. CUPP: And I
realize that is not my strong star you made here.” to “MR. CUPP: And I
realize that is not my strongest argument here.”)
540 146 NLRB 611 (1964).
541 See exhibit ALJ-4 (originally misnumbered, and sometimes re-
ferred to at trial, as ALJ-3).
542 In making my rulings on this issue, I was not unmindful of the
fact that I had denied the General Counsel’s motions to include many
more complaints in this proceeding, and a second trial of this Respon-
dent, with many more subpoenas to it, would most probably follow. If
Respondent were allowed to ignore the subpoena in Kent’s case, it
would necessarily be encouraged to ignore subsequent subpoenas.
543 I need not detail these exhibits which include G.C. Exhs. 775(a)
through (zzzzz) and 798(a) through (bbb).
intentional. (Even on brief Respondent does not even contend
that its rejected evidence would show that Kent’s actions were
intentional.) Petticrew’s invocation of major offense-2, there-
fore, seems purely arbitrary.
I therefore find that Respondent has failed to show that it
would have discharged Kent even in the absence of his pro-
tected activities. Accordingly I conclude that by discharging
Kent Respondent violated Section 8(a)(3) of the Act.
13. Refusals to hire employee-applicants
During 3 days in August 1993,544 23 prounion individuals
applied for work with Respondent, but none was interviewed
and none received an offer of employment. The second com-
plaint, at paragraph 119, alleges that each of the applicants was
refused employment because Respondent’s supervisors knew or
suspected that they possessed prounion sympathies. Respondent
answers that none of the applicants was hired because they: (1)
were unqualified for any of the jobs that were available, (2)
showed an inadequate work history on their applications, or (3)
showed on their applications that they had a history of wages
that were far in excess of anything that Respondent was then
paying. Respondent further denies knowledge of prounion
sympathies in the cases of several of the applicants. Ultimately,
I find and conclude that Respondent did unlawfully fail to hire
applicant Cynthia Johnson, but I further find and conclude that:
(1) One of the alleged discriminatees was not a bona fide appli-
cant for any of the positions for which he applied; (2) One of
the alleged discriminatees was not a bona fide applicant for
some of the jobs for which he applied; (3) the General Counsel
has failed to prove that Respondent had knowledge of two of
the applicants’ prounion sympathies; and (4) Respondent has
demonstrated by a preponderance of the evidence that it would
not have hired any of the remaining applicants even in the ab-
sence of their known prounion sympathies.
Applicants for employment with Respondent come to its per-
sonnel office at the main yard. They are greeted by a clerical
who gives them applications to complete. After completing and
returning the applications, the applicants stay in a waiting room
to see if they will be interviewed. Placement Supervisor Bruce
Nunez is in charge of reviewing all applications for employ-
ment and for interviewing those applicants in whom Respon-
dent may be interested in hiring. Nunez testified545 that he
screens as many as 80 applications a day. Nunez testified that
he will not interview an applicant whose application: (1) re-
flects a “poor work history,” (2) indicates that the applicant has
worked for more than $10 per hour but is applying for an entry-
level position, or (3) indicates that the applicant is seeking work
for which Respondent has no openings at the time that the ap-
plication is submitted.
Nunez testified that he marks all of the applications that he
screens with a letter code. Code “I” indicates that the applicant
has been satisfactorily interviewed and his application is in
process; that process includes scheduling for drug tests, review
by departmental superintendents (if the application is for a
skilled position), and an orientation class. Code “F” indicates
that the applicant was interviewed but was “not interested” in
what he was offered or was not interested in anything that Re-

544 All dates in this section of the decision are in 1993, unless other-
wise indicated.
545 Nunez was called as an adverse witness by the General Counsel
on day-33 of trial, and he was called as Respondent’s witness on day-
66.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1452
spondent might have to offer. Code “G” indicates that the ap-
plicant was not interviewed. Nunez testified that he does not
consider an interview to have taken place unless he at least
checks an applicant’s Social Security number and INS identifi-
cation; he did not do so for any of the applicants involved
herein.
Nunez testified that when he receives a large number of ap-
plications, and he knows that some or all of the applicants will
not be hired, he announces their names over a PA system. If
applicants in the waiting room want to know more, and they
approach the clerical, she will tell Nunez. Nunez will speak to
them and briefly state the reasons that they are being rejected.
Nunez testified that his routine PA announcement is: “Can I
have your attention? The following applicants we are not able
to place at this time. However, your applications will be main-
tained in our files for future consideration.” Then Nunez reads
the names of applicants whom he is not going to interview. (I
shall refer to this announcement as “the rejection announce-
ment.”) Although all rejected applicants hear this message (ei-
ther in a group or individually), some would never be contacted
because of what their applications had revealed.
On August 16, Respondent placed an advertisement in the
Times Picayune stating:

Avondale Industries, Inc., Shipyards Division, seeks
the following personnel:
FIBERGLASS MECHANICS
MAINT. MECHANICS
SECURITY GUARDS
MAINT. ELECTRICIANS
ELECTRONICS TECHS.
LIGHTING ELECTRICIANS
POWER ELECTRICIANS
INT. COMM. ELECTRICIANS
EXPERIENCED HELPERS
(PIPEFITTING-SHEETMETAL)
and Entry Level Helpers

Qualified candidates should apply in person.
[Address]

Some of the alleged discriminatees (the applicants) testified
that they went to the plant’s personnel office and applied after
seeing this advertisement; some applicants did not make refer-
ence to the advertisement. It is obvious from the whole of the
testimony that representatives from different local unions in the
area encouraged most of the applicants to apply. Several of the
applicants wore prounion insignia to the premises when they
applied; several made reference to unions on the faces of their
applications. (All of the applicants, however, disavowed any
intent to organize for any union, and there is no evidence that
any of the applicants gave Respondent’s supervisors or agents
any reason that they were seeking jobs, in whole or in part, to
organize for any union.)
a. Applicants who had usually worked as guards, laborers
or pipefitters
(1) James Bishop
James Bishop (vol. 42) is a member of Local 60 of the
Plumbers’ and Steamfitters’ Union in the New Orleans area. He
worked in the construction trades for 25 years until he suffered
crushed disks in his spinal column in 1986. Since that time his
ability to lift weights has been impaired and he has held such
jobs as selling tires and running a limousine service.
Bishop testified that in August he heard at the Plumbers’ un-
ion hall that Respondent might be hiring soon. On August 16,
he noticed the advertisement in the Times Picayune for various
positions including maintenance mechanics, pipefitting helpers
and entry-level helpers. On August 17, Bishop presented him-
self at Respondent’s personnel office and asked for an applica-
tion. At the time, he was wearing a Plumbers’ union cap with a
Plumbers’ union pin in it. In the application’s space for “Posi-
tion(s) for which you are applying,” Bishop wrote, “pipefitter,
plumber, maintenance mechanic.” In an adjacent space for
“Yrs. Exp.,” Bishop wrote, “25.” In spaces where the applica-
tion form instructs applicants to “Give your complete employ-
ment history for the past five (5) years,” Bishop listed construc-
tion industry employers for whom he claimed to have worked
from 1967 through 1989 (but not thereafter). Bishop listed his
last wage rate at $16.50 per hour. In a space that has no head-
ing, Bishop wrote: “All jobs from Plumber & Steamfitters Lo-
cal #60.” Finally, in a space that directs the applicant to “List
any specialized crafts or shop machines which you are qualified
to operate,” Bishop wrote “forklift.”
Bishop testified that, after completing the application and
waiting over an hour, he heard the rejection announcement over
the PA system. Bishop went to the clerk’s window and com-
plained that Respondent was engaging in “false advertising.”
The clerk directed him to Nunez’ office. When he arrived there,
Nunez, without looking up at him, stated that “[w]e are not
hiring.” Bishop asked about the advertisement, and Nunez re-
plied, “I don’t have nothing for you. You can go.” Bishop then
left. While still on direct examination, Bishop admitted that his
statement on his application that he had worked in the construc-
tion industry as late as 1989 was false because he had been on
disability retirement since 1986. When asked why he made the
false entry, Bishop answered: “To show that there wasn’t that
many years in gap of employment at my trade.” Bishop testified
that he could do types of work other than pipefitting and main-
tenance mechanic but on cross-examination he admitted that his
pretrial affidavit states that he did not list those other areas
“because I was applying for a pipefitter, plumber, or mainte-
nance mechanic position and not something else.” Bishop fur-
ther admitted that, as his pretrial affidavit states, Nunez told
him that Respondent was only hiring pipefitter helpers on Au-
gust 17.
Nunez coded Bishop’s application “G.” On direct examina-
tion, Nunez was asked why he did not “offer Mr. Bishop a posi-
tion.”546 Nunez replied: “Because pipefitter positions were not
available on the day that Bishop applied.” Nunez further testi-

546 This is how Respondent questioned Nunez on all of the refusal-
to-hire cases. Because Nunez testified that he did not interview any of
the applicants involved herein, it is clear that Nunez’ answers to these
questions included his testimony of why he did not considered the
applicants for employment.
AVONDALE INDUSTRIES

1453
fied that he did not consider Bishop for a maintenance me-
chanic position because his application reflected no mainte-
nance mechanic background and no skills in repairing “heavy
industrial equipment,” such as locomotives and gantry cranes,
and that was the only category of maintenance personnel that
Respondent was then seeking to employ.
Nunez further testified that: “If we are having difficulty in
placing applicants in any craft, I may choose to go back to the
applications that we have on file back to three months, retrieve
the most recent one first and pull out the applications for the
applicants that appear qualified for the openings that are avail-
able at that time.” This is an acknowledgment that applications
are maintained for at least three months. Applications are filed
by months, and each month’s applications are maintained al-
phabetically. Applicants of the most recent month are called
first, and they are called in alphabetical order. Because Re-
spondent does, in fact, utilize this system, Nunez’ testimony
that he did not consider an applicant because there were no jobs
available on the very day that the applicant applied cannot be
credited. (That is, Respondent does not throw away an applica-
tion because there are no jobs available on the day that it was
filed.) Therefore, in determining whether Respondent would
have considered an applicant, I shall review its record of hiring
applicants during the remainder of August and the first 3 full
months following the dates of the applications in issue here,
September, October and November (the August through No-
vember period).
According to documents introduced by the General Counsel,
during the August through November period Respondent hired
26 pipefitters (and 16 pipefitters’ helpers). In a corner of
Bishop’s application is written: “Called—Message—9/1/93.”547
Nunez testified that such notations are made on applications
when jobs become available and previous applicants have indi-
cated that they were looking for such jobs. Bishop, however,
testified that he was never contacted by Respondent after Au-
gust 17 even though he had listed on his application the tele-
phone number of his limousine service which has a 24-hour
answering service. I do not believe Bishop; I find on the basis
of Respondent’s business record that he was called on Septem-
ber 1, but Bishop did not respond. Of the 26 pipefitters whom
Respondent hired during the August through November period,
however, 25 were hired after the telephone call that Bishop
ignored. Moreover, Nunez did not testify that Respondent de-
stroys the applications of those who do not respond to tele-
phone calls, and I do not consider Bishop’s not responding to
the September 1 telephone call to be a deciding factor.
Bishop testified that he had been looking for work in the
construction industry before he applied at the personnel office,
but I simply do not believe that testimony. Bishop had left the
construction industry in 1986 (not 1989 as he falsely stated on
his application) because of his back injury, and he did not tes-
tify that his ability to lift weight had somehow returned. Bishop
was not applying for an office clerical job; he was applying for
a construction industry craft job. All such jobs require employ-
ees to do at least some lifting. Whatever his motives for apply-
ing may have been, I do not believe that Bishop was a bona fide
applicant for employment, and I shall therefore recommend
dismissal of the allegation that Respondent unlawfully refused
to hire him.

547 The Tr., Vol. 65, p. 13, 973, LL. 10–11, is corrected to change
“Message of ‘93” to “Message of 9/1/93.”
(2) Leroy Robin
On August 17, Leroy Robin applied for a job as a pipefitter.
Robin was not called to testify, but his application states that he
has 25 years’ experience as a pipefitter, and it lists jobs that he
held in the construction industry from December 1991 through
August 1993. The last wage rate that Robin listed was $13.50
per hour. In the space for specialized skills, Robin stated that he
was a certified pipe welder and a certified pipe brazer. Robin
apparently left the premises after hearing a rejection announce-
ment.
Nunez coded Robin’s application “G.” Nunez testified that
Robin was offered no job because: “No positions were avail-
able for the experience that he possessed and indicated on his
application.”
Robin did not indicate on his application that he had any re-
lationship with any labor organization, and if he maintained any
prounion sympathies there is no evidence of how Nunez would
have known about it. The General Counsel has therefore failed
to present a prima facie case that Robin was unlawfully dis-
criminated against, and I shall recommend dismissal of the
complaint allegations that are made on his behalf.
(3) Ronald Noil
Ronald Noil (vol. 44) went to the plant on August 18 with
applicants Cynthia Johnson and Waynell Simon. (And Noil
testified that the three were driven to the plant by a representa-
tive of the local Laborers’ Union.) Noil testified that he, John-
son and Simon wore 2-inch diameter stickers that had the em-
blem of Laborers’ Local 699. (Noil has been a member of that
union for several years.) The application filed by Noil on Au-
gust 17 does not state what position he is applying for, but in
the space for listing his specialized skills he entered “laborer.”
In the spaces for listing his last 5 years’ employment, Noil
listed only “Todd” at “Patterson [Street].” For the dates of that
employment, Noil listed “From” 1979, but he left the space for
“To” blank. In the space for “Position and duties,” Noil wrote
“None,” but he stated that his salary was $9 per hour. In the
space for reason for leaving, Noil wrote “None.” Noil testified
that he worked at Todd Shipbuilding (which he thought Re-
spondent had purchased) from 1979 until about 1984. Noil left
the premises after hearing a rejection announcement. (On cross-
examination Noil admitted that he had worked for other em-
ployers since 1984; he explained that he listed only Todd on his
application because he thought he would be hired solely on the
basis of his experience there.) The records in evidence demon-
strate that Respondent hired in excess of 50 helpers (or labor-
ers) during the August through November period.
Nunez coded Noil’s application “G.” Nunez testified that he
did not hire Noil because, “Mr. Noil did not indicate any em-
ployment history since 1979.”
On his application, Noil did not indicate that he had any rela-
tionship with any labor organization. Also, Noil did not con-
front Nunez before (or after) he filed his application, and Nunez
could not have seen the prounion insignia that he was wearing.
That is, there is no evidence that would charge Respondent with
knowledge of any prounion sympathies that Noil may have held
at the time that Nunez made his decision not to consider Noil’s
application. I therefore find and conclude that the General
Counsel has not presented a prima facie case that Respondent
unlawfully discriminated against Noil. Moreover, Respondent
has demonstrated that it would not have considered any appli-
cant who entered such a poor work history on his application.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1454
Accordingly, I shall recommend dismissal of the allegations
made on behalf of Noil.
(4) Waynell Simon
Waynell Simon (vol. 37), the sister of applicant Cynthia
Johnson who is discussed below, testified that she wore a union
sticker to the premises when she applied for a job, but her
memory (and description) of that sticker was vague. In her
application’s space for type of job that she sought, Simon en-
tered “Security guard—Laborer—Tool Room.” In the spaces
for listing her last 5 years’ employers, Simon indicated that she
had been employed by four employers from June 1992 through
June 1993. As a 1992 employer Simon listed, “Laborers’ Lo-
cal.” In the spaces for the names of two other “employers,”
Simon lists Sears and “Laborers’ Local 698.” Simon indicated
on the application that she did toolroom work for Sears, Labor-
ers’ Local 689 and “G&C,” although on cross-examination she
admitted that she only did cashier work at Sears. The last wage
rate that Simon indicated receiving was $10.25 per hour. Simon
left the premises after she heard the rejection announcement
that included her name and Johnson’s. As noted, the records in
evidence demonstrate that Respondent hired in excess of 50
helpers during the August through November period.
Nunez coded Simon’s application “G.” Nunez testified that
he did not offer a job to Simon: “Because Ms. Simon had no
experience in security for the position for which she applied, as
well as the other position she applied for, she made signifi-
cantly more money that we were willing to offer to entry level
helpers at that time. . . . [A]t that time that she applied and for
the labor position, which is basically an entry-level helper’s
position, she made in excess of $10 [per hour], which was sig-
nificantly more than what we paid for entry-level helper’s posi-
tions.” At the time, according to Nunez (and according to re-
cords received in evidence), Respondent was paying $4.72 per
hour for entry-level laborers, and experienced laborers were
paid up to $6.76 per hour. Nunez further testified that there
were no toolroom jobs or security jobs available at the time that
Simon applied.
Simon made her prounion sympathies clear on the face of
her application, and, in view of Respondent’s demonstrated
animus against its employees’ protected activities, it must be
held that the General Counsel has established a prima facie case
of unlawful discrimination against Simon. Respondent, how-
ever, has shown that Simon would have qualified only for entry
-level jobs and that it would not have hired her because of the
great disparity between her last wages and what Respondent
was paying such employees. I shall therefore recommend dis-
missal of allegations of the complaint that are made on behalf
of Simon.
(5) Cynthia Johnson
Cynthia Johnson (vol. 37) testified that she wore a large
“Union-Yes” sticker (the same that worn by many of the other
alleged discriminatees and described above) when she went to
apply. On her application, Johnson indicated that she was seek-
ing employment as a “Security Guard,” and she stated that she
had 2 years’ experience in such work. In the spaces for listing
the employers of her last 5 years, Johnson listed four, one of
which was “Labor Local 689.” As the positions that she had
held, Johnson listed “Holewatch” and “Security Guard.” She
listed her last rate of pay as $8 per hour. The records in evi-
dence demonstrate that Respondent hired four security guards
during the August through November period.
Nunez coded Johnson’s application “G.” Nunez testified that
he did not offer a job to Johnson because: “She applied for a
security guard position. Security guard positions were not
available on that date and—nothing further.” Nunez acknowl-
edged that, from her application, Johnson appeared to be quali-
fied for a security job with Respondent.
When he decided not to consider Johnson for employment,
Nunez knew of Johnson’s prounion sympathies from the entries
on the face of Johnson’s application and, in view of Respon-
dent’s demonstrated animus against its employees’ protected
activities, it must be found that a prima facie case of unlawful
discrimination against Johnson has been presented. Respon-
dent’s defense must therefore be examined. Other than Nunez’
discredited testimony that he did not hire Johnson because no
job was available on the very day that she applied, Respondent
offers no reason for its not considering Johnson for one of the
four plant guard jobs that were available during the August
through November period. Respondent, therefore, has not dem-
onstrated that it would have refused to consider and hire John-
son even absent her known prounion sympathies. I therefore
find and conclude that by refusing to consider and hire Johnson,
Respondent violated Section 8(a)(3).
(6) Joseph Coleman
On August 26, Joseph Coleman (vol. 40) was driven to the
plant by a union representative. With Coleman and the repre-
sentative was applicant Ferdinand Abbot. Coleman testified
that he wore a large Laborer’s union sticker on his shirt. Cole-
man stated on his application that he was seeking work as a
laborer and that he had 30 years’ experience as such. As his
employer from 1965 through 1993, Coleman listed, “Local
#689.” As his last wage, Coleman listed $10.89 per hour. After
he submitted the application, Coleman was shown to Nunez’
office. According to Coleman, Nunez acknowledged that Re-
spondent was hiring helpers, but Nunez also told him that Re-
spondent was paying only $4.75 per hour. Coleman replied:
“Well, I usually get more than that but I need the job, I need to
go to work and feed my family.” Nunez told him to go back to
the waiting room. A while after Abbot returned to the waiting
room, he heard a rejection announcement and he left. As noted,
the records in evidence demonstrate that Respondent hired in
excess of 50 helpers during the August through November pe-
riod.
Nunez coded Coleman’s application “F,” but he candidly
admitted at trial that he did not recall what was said during his
interview of Coleman. Coleman’s testimony about what he said
to Nunez, therefore, stands undenied. When asked why he did
not hire Coleman, Nunez answered: “Mr. Coleman applied for
a laborer position. His wages were what I consider to be sig-
nificantly more than what we offer for entry-level helpers’ posi-
tion.”
Coleman made his prounion sympathies clear on the face of
his application, and in view of Respondent’s demonstrated
animus against its employees’ protected activities, it must be
held that the General Counsel has established a prima facie case
of unlawful discrimination against Coleman. Respondent, how-
ever, has shown that Coleman would have qualified only for
entry-level jobs and that it would not have hired him because of
the great disparity between his last wages and what Respondent
was paying such employees, even if Coleman, himself, was
willing to accept less. I shall therefore recommend dismissal of
AVONDALE INDUSTRIES

1455
allegations of the complaint that are made on behalf of Cole-
man.
(7) Ferdinand Abbott
Abbott testified that he wore a large union sticker on his shirt
and a union pin on his cap when he went to the plant to apply
for work at Respondent’s personnel office. On his application
Abbot indicated that he was seeking work as a laborer and that
he had 15 years’ experience. Abbott listed two prior employers,
but not the dates of his employment. In the first space for prior
positions of employment Abbot wrote “Labor Union.” As his
last wage rate, Abbott listed $10.89 per hour. Abbot testified
that he was asked into Nunez’ office where Nunez told him that
Respondent was hiring only painters’ helpers.548 As noted,
Abbot left with Coleman after the rejection announcement. As
noted, the records in evidence demonstrate that Respondent
hired in excess of 50 helpers during the August through No-
vember period.
Nunez marked Abbot’s application “F.” Nunez testified that
he did not consider Abbot for employment because: “Mr. Ab-
bot’s application was incomplete, although not always does that
constitute me not interviewing an applicant. His wages were
significantly more than we offered for entry-level helpers posi-
tions.”
Abbot made his prounion sympathies clear on the face of his
application, and, in view of Respondent’s demonstrated animus
against its employees’ protected activities, it must be held that
the General Counsel has established a prima facie case of
unlawful discrimination against Abbot. Respondent, however,
has shown that Abbot would have qualified only for entry-level
jobs and that it would not have hired him because of the great
disparity between his last wages and what Respondent was then
paying such employees. I shall therefore recommend dismissal
of allegations of the complaint that are made on behalf of Ab-
bot.
b. Applicants who had usually worked as carpenters
Jimmy Russ was the Union’s chief organizer. On August 25,
Russ went to the hall of the Carpenters’ Union and encouraged
members there to go to Respondent’s personnel office and ap-
ply for work. That day, 14 Carpenters’ union members (carpen-
ters) did go to Respondent’s plant and apply for work; on Au-
gust 26, two more carpenters did so. Nunez refused to hire any
of the carpenters. Nunez did have brief exchanges with some of
the carpenters, but he admitted that he did not interview any of
them.
Nunez admitted that, when the group of 14 carpenters came
to the personnel office on August 25, the clerical came to his
office and:

The personnel clerk that was working the window that
day came to my office and made it known to me that a
group of applicants were requesting applications and that
they were wearing T-shirts and some of the applicants
were wearing T-shirts and caps displaying union logos.

548 On direct examination, Abbot also testified (with obvious reluc-
tance) that Nunez also said to him: “I see that you are union.” Nunez
credibly denied commenting on any applicant’s prounion insignia;
moreover, Abbot admitted on cross-examination that Nunez had made
no such comment. (The General Counsel on brief twice quotes Abbot’s
testimony on direct examination without even acknowledging Abbot’s
admission on cross-examination.)
The “group” consisted solely of carpenters, and this admission
compels the conclusion that Nunez knew that all carpenters
who applied on August 25 held prounion sympathies. It is fur-
ther safe to conclude, as I do, that when two more carpenters
appeared on August 26, Nunez suspected that they also pos-
sessed prounion sympathies; moreover, those last two carpen-
ters met with Nunez before they were rejected, and they were
wearing prounion insignia at the time. Therefore, it must be
concluded that a prima facie case of unlawful discrimination
has been made out for each of the carpenter applicants.
Nunez testified that after the carpenters’ applications were
brought to him, he reviewed them for about 30 minutes and:

I decided to address a group of applicants that had ap-
plied for carpentry positions because we had no carpentry
positions available. We had not hired a carpenter in sev-
eral years. I chose to go and address the group personally
to avoid having them come back to the window and asking
the same questions and the personnel clerk having to deal
with that number of applicants asking the same questions.
And ultimately she would have to refer them back to my
office if she couldn’t answer the ques-tions that they
asked.

Nunez testified that the last time that Respondent had hired a
carpenter was “some time in 1991.” This testimony by Nunez
was not disputed by the General Counsel; moreover, the Gen-
eral Counsel did not adduce any evidence that any carpenters
were hired during the August through November period. I shall
therefore recommend dismissal of all of the allegations that
Respondent unlawfully refused to employ any of the carpenter
applicants as carpenters. I will, however, address the General
Counsel’s additional contentions that Nunez also unlawfully
refused to consider any of the carpenters for employment.549
(1) Dale Vasquez
Dale Vasquez (vol. 38) testified that when he went to the
plant (with at least 13 other carpenters) he was wearing a T-
shirt that had “Carpenters’ 1846 Local Union” printed on the
front. Also he had a union pin in his shirt, and he wore a base-
ball cap with some union logo. On his application Vasquez
indicated that the positions for which he was applying were
“Carpenter [space] Maintenance.” For his prior employment,
Vasquez named five employers and stated that he had done
carpentry work for each. Vasquez listed his last wage as $13.75
per hour. Vasquez left the space for listing specialized skills
blank. Vasquez testified that after he and the other carpenters
completed their applications and they waited for a while, Nunez
came into the waiting room and made the rejection announce-
ment that included his name. Vasquez testified that after Nunez
made the announcement he approached Nunez and stated that
he was also a qualified welder, but Nunez ignored him.
Vasquez further testified that he was, in fact, a welder, but he
acknowledged on cross-examination that his pretrial affidavit
states: “I am not supposed to do welding permanently because I
got burnt eyes in the past. My doctor told me that I would even-
tually go blind from it. It is a condition which is caused from

549 Several of the carpenters testified that they possessed specialized
skills such as welding. I do not believe any of such testimony that was
offered by carpenters who did not indicate such experience on their
applications. I therefore reject the General Counsel’s contentions that
Respondent unlawfully refused to consider such carpenters for other
jobs as well as carpentry jobs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1456
bright light that makes the eyes unusable due to the pain. How-
ever, I would have taken a welding position at Avondale until
they could transfer me to another position.”
Nunez testified that: “Mr. Vazquez . . . was a carpenter,
[and] based on the information he provided and his skills and
his past work history. We did not have carpentry positions
available at that time.550 And he also listed, as well, ‘carpentry
maintenance’ and our maintenance department does not hire
carpenters. He did not have the skills necessary to qualify for
any of the other openings that were available at that time. . . .
[and I did not consider him because] his wages were signifi-
cantly more than what we offer for entry-level helper posi-
tions.” Nunez was credible in this testimony, and he was credi-
ble in other testimony that Respondent was seeking only main-
tenance employees who had experience working on heavy
equipment such as cranes. The General Counsel introduced no
evidence to the contrary. Finally, because of his vulnerability to
blindness, I do not believe that Vazquez was a bona fide appli-
cant for any employment that might involve welding. I shall
therefore recommend dismissal of the allegation that Respon-
dent unlawfully refused to consider, as well as hire, Vasquez.
(2) Harry Ory
Harry Ory (vol. 38) is a retired carpenter who was collecting
both a union pension and Social Security at the time he went to
the personnel office with the other carpenters. Ory testified that
when he went to apply he wore on his shirt four or five stickers
that said “union.” On his application, Ory indicated that he
sought work of “scaffolding carpenter or maintenance,” and he
indicated that he had 30 years of experience. Because he had
been retired for 3 years,551 Ory listed his prior employment only
through 1990, and he indicated that he had done carpentry work
and scaffold-building for those employers. Ory indicated that
his last hourly wage rate was $14. In the space for indicating
special experience, Ory wrote: “power tools [space] table saw.”
When Nunez came into the waiting room to announce that Re-
spondent had no jobs for the applicants that he named, Ory
approached Nunez and asked why none of the “union” appli-
cants were being interviewed; Nunez only replied, “We have no
job for you.” Ory then left the premises.
Nunez did not code Ory’s application. Nunez testified: “Mr.
Ory, as well, had the skills of a carpenter and we did not have
carpenters positions available and he did not possess the skills
to qualify for the openings that we had available for mainte-
nance at that time. . . . The scaffolds are fabricated by the scaf-
folding department and are primarily fabricated out of metal
and the carpentry department supplies the scaffolding depart-
ment with the scaffold boards.” Nunez further testified that he
did not consider Ory for any scaffold-building position be-
cause: “scaffolding position is basically that of a person who
has ship-fitting skills, burning skills. He did not indicate any
skills that could have qualified him for that position.” the Gen-
eral Counsel made no effort to rebut this testimony, and I found
it credible. I shall therefore recommend dismissal of the allega-
tion that Respondent unlawfully refused to consider, as well as
hire, Ory.

550 Because, according to the record, Respondent hired no carpenters
at any relevant time, I accept such testimony by Nunez to indicate that
Respondent did not then anticipate hiring carpenters at any time during
the foreseeable future, which was the fact.
551 Ory’s testimony that he had previously been seeking work when
he applied with Respondent was incredible.
(3) Jerry Bychurch
Jerry Bychurch (vol. 39) testified that when he went to the
personnel office with the other carpenters, he wore a T-shirt
that said “Vote-”Union-Yes”.” As the position that he applied
for, Bychurch put “maintenance,” and he stated that he had 38
years of experience. Bychurch listed his five former employers,
ending in April 1993. All of the employers were in the con-
struction industry, and Bychurch listed his jobs with those em-
ployers as “carpenter & scaffold-builder, . . . const. foreman”
and “carpenter layout.” Bychurch indicated that his last hourly
wage rate was $13.91. In the space for listing specialized skills,
Bychurch wrote “cabinet maker & gen. carpentry.” Bychurch
left the premises when he heard Nunez make the rejection an-
nouncement that included his name.
Nunez did not enter a code on Bychurch’s application. Nu-
nez testified that he did not consider Bychurch for employment
because: “Mr. Bychurch, although he applied for a maintenance
position of 33 years, as he indicated on his application, experi-
ence, he indicated no experience on his application that would
have qualified him for maintenance. It appeared that Mr. By-
church’s background was carpentry-related and we did not have
any carpentry positions available.” Nunez further testified that
he did not consider Bychurch for a maintenance mechanic posi-
tion because: “he did not possess the skills in repairing heavy
industrial equipment.” the General Counsel made no effort to
refute this testimony, and I found it credible. I shall therefore
recommend dismissal of the allegation that Respondent unlaw-
fully refused to consider, as well as hire, Bychurch.
(4) Leon McGuire
Leon McGuire (vol. 39) testified that he was wearing a Car-
penters’ union T-shirt when he applied. On his application
McGuire indicated that he was applying for a job as “mainte-
nance carpenter,” and he indicated that he had 35 years of ex-
perience. McGuire listed employers that he had through June
1993. McGuire indicated that he did “carpentry” for each of
those employers, and his last hourly wage rate was $17.76.
McGuire left the space for listing specialized skills blank.
McGuire testified that, after Nunez read out the names of the
rejected applicants, he asked Nunez for a business card. Nunez
took McGuire back to his office and gave him one. McGuire
told Nunez that he would call back and see if there were any
jobs available to him, and Nunez replied, “Don’t waste your
time.” McGuire then left the premises. Nunez did not deny this
testimony.
Nunez testified that he did not consider McGuire for any
employment because: “Mr. McGuire was a carpenter by trade
and did not indicate any skills that could have qualified him for
any other openings that were available at that time.” Nunez
further testified that he did not consider McGuire for a mainte-
nance mechanic’s position because: “he didn’t have the skills
necessary to repair heavy equipment.” Nunez was credible in
this testimony which the General Counsel did not seek to re-
fute. I shall therefore recommend dismissal of the allegation
that Respondent unlawfully refused to consider, as well as hire,
McGuire.
(5) Ellis Gauthier
Ellis Gauthier (vol. 41) testified that he wore a Carpenter’s
union T-shirt when he applied with the rest of the carpenters.
On his application Gauthier wrote that he was applying for
work as a “carpenter,” and he stated that he had 25 years’ ex-
AVONDALE INDUSTRIES

1457
perience. Gauthier listed four employers that he worked for
through December 1992.552 Gauthier indicated that he had done
carpentry or “repair” work for each of those employers, and his
last hourly wage rate was $11. Gauthier left the space for listing
specialized skills blank. Gauthier left the premises when he
heard Nunez make the rejection announcement that included
his name.
Nunez did not code Gauthier’s application. Nunez testified
that he did not consider offering Gauthier a job because “Mr.
Gauthier is a skilled carpenter. We had no carpenter positions
available at that time.” Nunez was credible in this testimony
which the General Counsel did not seek to refute. I shall there-
fore recommend dismissal of the allegation that Respondent
unlawfully refused to consider, as well as hire, Gauthier.
(6) Edward McCallef
Edward McCallef (vol. 39) testified that he wore a Carpen-
ters’ union cap when he went to apply for employment with
Respondent. On his application, McCallef stated that he was
seeking work as a “carpenter,” and he had 35 years’ experience.
McCallef listed only one prior employer; he worked as a car-
penter from August 1991 through February 1992,553 and his last
hourly wage rate was $12.31. McCallef left the premises when
he heard Nunez make the rejection announcement that included
his name.
Nunez did not code McCallef’s application. Nunez testified
that he did not consider McCallef for employment because:
“Mr. McCallef is a carpenter by trade and did not have the
skills necessary to qualify for any of the positions that were
available at that time.”554 Nunez was credible in this testimony
which the General Counsel did not seek to refute. I shall there-
fore recommend dismissal of the allegation that Respondent
unlawfully refused to consider, as well as hire, McCallef.
(7) Ivar Mikalsen
Ivar Mikalsen (vol. 40) retired from the carpentry trade in
1992, and he has been living on a pension and Social Security
(and a couple of odd jobs) ever since.555 Mikalsen wore a Car-
penters’ union cap when he submitted his application. On his
application he stated that he sought work as a “carpenter,” and
that he had 40 years’ experience. Mikalsen listed employers for
whom he worked until 1992, he stated that he had been a car-
penter for each, and he stated that his last hourly wage rate was
$17.67. Mikalsen left the premises when he heard Nunez make
the rejection announcement that included his name. Mikalsen
left the space for listing specialized skills blank.
Nunez did not code Mikalsen’s application. Nunez testified
that he did not consider Mikalsen for employment because:
“Mr. Mikalsen was a carpenter by trade and did not have the
skills necessary to qualify for the openings that were available
and we were not hiring carpenters at that time.” Nunez was
credible in this testimony which the General Counsel did not
seek to refute. I shall therefore recommend dismissal of the

552 Gauthier’s testimony that he had previously been seeking work
when he applied with Respondent was incredible.
553 McCallef’s testimony that he had previously been seeking work
when he applied with Respondent was incredible.
554 Nunez testified that the fact that McCallef listed only 2 years’ of
employment did not affect his decision.
555 Mikalsen’s testimony that he had previously been seeking work
when he applied with Respondent was incredible.
allegation that Respondent unlawfully refused to consider, as
well as hire, Mikalsen.
(8) Eugene Short
Eugene Short (vol. 41) was wearing a Carpenters’ union cap,
T-shirt and badge when he went to apply for employment. On
his application Short stated that he sought work as a “main-
tenance mech.” and that he had 25 years’ experience. Short
listed four prior employers and stated that he did carpentry,
drywall, scaffold-work, or “general maintenance” work for
each. Short’s last hourly wage rate was $13.42. In the space for
specialized skills, Short listed “fork lift, all carpentry shop
tools.” Short left the premises when he heard Nunez make the
rejection announcement that included his name.
Nunez did not code Short’s application. Nunez testified that
he did not consider Short for employment because: “Mr.
Shoat’s [sic] background reflected that he was a skilled carpen-
ter and he did not have the skills necessary to qualify for a
maintenance mechanic position of what he applied for. And we
did not have carpentry positions available at that time.” Nunez
was credible in this testimony which the General Counsel did
not seek to refute. I shall therefore recommend dismissal of the
allegation that Respondent unlawfully refused to consider, as
well as hire, Short.
(9) Michael Magee
Michael Magee (vol. 41) wore a “Union-Yes” sticker on his
cap when he appeared at the personnel office and filed an ap-
plication. Magee stated on the application that he sought a
“maintenance” job and that he had 16 years’ experience. Magee
listed only one prior employer, a construction company. Magee
stated that he worked for that company from “9/20/92” until
“12/28/93.” (Magee testified that he had meant “12/28/92”
because that was when he was last laid off.) Magee stated that
he had been a carpentry foreman for the construction company,
and that his hourly wage-range was from $12.85 to $14.61.
Magee left the space for listing specialized skills blank. Magee
left the premises when he heard Nunez make the rejection an-
nouncement that included his name.
Nunez did not code Magee’s application. Nunez testified that
he did not consider Magee for employment because: “Mr.
Magee was a carpenter. He applied for a maintenance position.
He did not have the skills to qualify for the maintenance posi-
tion that was available at that time.” Nunez was credible in this
testimony which the General Counsel did not seek to refute. I
shall therefore recommend dismissal of the allegation that Re-
spondent unlawfully refused to consider, as well as hire,
Magee.
(10) Oliver Cooper
Oliver Cooper (vol. 44) wore a Carpenters’ union cap when
he went to the personnel office to apply. On his application,
Cooper stated that he was seeking work as a “maint. carpenter,”
but he left the space for “Yrs. Exp.” blank. Cooper’s listing of
prior employers indicates that he had not worked for any em-
ployer since 1982,556 he was paid $13.80 per hour for the job
that he worked that year. Cooper left the space for listing spe-
cialized skills blank. Cooper left the premises when he heard
Nunez make the rejection announcement that included his
name.

556 Cooper’s testimony that he had previously been seeking work
when he applied with Respondent was incredible.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1458
Nunez coded Cooper’s application “G.” Nunez testified that
he did not consider Cooper for employment because: “Mr.
Cooper’s application reflects that he has carpentry background
and which we had no carpentry openings available as well as he
does not indicate any employment since 1982. . . . Mr. Cooper
does not indicate any experience that would qualify him to
repair heavy equipment.” Nunez was credible in this testimony
which the General Counsel did not seek to refute. I shall there-
fore recommend dismissal of the allegation that Respondent
unlawfully refused to consider, as well as hire, Cooper.
(11) Mariel Lavigne
Mariel Lavigne (vol. 43) wore a Carpenters’ union cap and a
“Union-Yes” sticker on his shirt when he went to the personnel
office. On his application, Lavigne stated that he was seeking
work of “maintenance or carpenter,” and he stated that he had
35 years’ experience. In the spaces for listing the applicant’s
last 5 years for employment, Lavigne listed four prior employ-
ers, all construction companies, but he listed no employers for
whom he might have worked since 1984.557 On his application,
Lavigne stated that he worked as a carpenter for each of the
employers that he did list, and listed his last hourly wage rate as
$14.45. In the space for specialized skills, Lavigne wrote,
“crane operator—15 yrs. experience.” Lavigne left the premises
when he heard Nunez make the rejection announcement that
included his name.
Nunez did not code Lavigne’s application. Nunez testified
that he did not consider Lavigne for employment because: “Mr.
Lavigne was a skilled carpenter. We did not have any carpentry
positions available at that time and he did not have experience
that would qualify him for the maintenance position that he also
applied for.” Nunez was credible in this testimony which the
General Counsel did not seek to refute. I shall therefore rec-
ommend dismissal of the allegation that Respondent unlawfully
refused to consider, as well as hire, Lavigne.
(12) Rene Stoute
Rene Stoute (vol. 42) wore a Carpenters’ union cap and a T-
shirt that said “Vote-”Union-Yes”” when he went to Respon-
dent’s personnel office. On his application, Stoute indicated
that he sought the work of “carpenter maintenance,” and he
stated that he had 32 years’ experience. In the spaces for listing
his last 5 years’ employers, Stoute listed four employers for
whom he worked between March 1989 through January
1992.558 For each of those employers, Stoute indicated that he
was a “union carpenter” or “foreman,” and his last hourly wage
rate was indicated to be “$13.26 plus benefits.” In the space for
specialized skills, Stoute wrote: “carpenter maintenance.”
Stoute left the premises when he heard Nunez make the rejec-
tion announcement that included his name.
Nunez did not code Stoute’s application. Nunez testified that
he did not consider Stoute for employment because: “Mr. Stout
was a skilled carpenter and we did not have carpenter’s posi-
tions available at that time, although he listed his position that
he was applying for as a carpenter maintenance. Our mainte-
nance doesn’t have carpenters.” Nunez further testified that he
did not consider Stoute for a helper’s position because: “his
wages were significantly more than what we offer entry-level

557 Lavigne’s testimony that he had previously been seeking work
when he applied with Respondent was incredible.
558 Stoute’s testimony that he had previously been seeking work
when he applied with Respondent was incredible.
helpers.” Nunez was credible in this testimony which the Gen-
eral Counsel did not seek to refute. I shall therefore recommend
dismissal of the allegation that Respondent unlawfully refused
to consider, as well as hire, Stoute.
(13) Firmin Maurice
Firmin Maurice (vol. 41) wore a Carpenters’ union cap and a
“Vote-Yes” T-shirt when he went to Respondent’s personnel
office. On his application, Maurice stated that he was seeking
work in “maint. or anything” and that he had 17 years’ experi-
ence. In the spaces for listing his employers during the last 5
years, Maurice listed three employers for whom he had worked
as a carpenter (or carpenter foreman) from 1986 through Octo-
ber 1992.559 Maurice indicated that his last hourly wage rate
was $14.06. Maurice left the space for listing specialized skills
blank. Maurice left the premises when he heard Nunez make
the rejection announcement that included his name.
Nunez did not code Maurice’s application. Nunez testified
that he did not consider Maurice for employment because: “Mr.
Maurice’s background reflected that he was a carpenter by
trade and did not have the skills necessary to qualify for the
maintenance position.” Nunez further testified that when an
applicant places “anything” in the space for job desired, he
usually means that he would accept entry-level jobs. Nunez did
not consider Maurice for such because: “his wages that he was
accustomed to earning [were] significantly more than we offer
for entry-level positions.” Nunez was credible in this testimony
which the General Counsel did not seek to refute. I shall there-
fore recommend dismissal of the allegation that Respondent
unlawfully refused to consider, as well as hire, Maurice.
(14) Bennie Cuenca
Bennie Cuenca (vol. 40) did not have any prounion insignia
on his clothing when he went to Respondent’s personnel office
on August 25. He did carry a large pocket calculator in his shirt
pocket; on the back of that calculator was a sticker that had
“America works best when we say . . . Union Yes.” Thereafter
follows a large check mark that is the same as the check marks
in the “Union-Yes” stickers that many of the production and
maintenance employees wore during the campaign. When
Cuenca went to the clerk’s window and asked for an applica-
tion, the calculator was turned so that the sticker did not show.
On his application, Cuenca indicated that he was seeking “car-
penter” work and that he had 18 years’ experience; Cuenca also
indicated that he was seeking work as an electrician’s helper,
and he indicated that he had six months’ experience in doing
that kind of work. Cuenca did list his employers for the prior 5
years (ending in March 1993), and he stated that he worked as a
“journeyman carpenter” for each. Cuenca further indicated that
his last hourly wage rate was $12.75, and his two jobs before
that paid $14.21 per hour. Cuenca left the space for listing spe-
cialized skills blank.
Cuenca testified (and many other of the carpenters corrobo-
rated him) that when Nunez called out the names of the other
rejected carpenters, Nunez did not call his name. Cuenca waited
several minutes more, and the clerk told him to go back to Nu-
nez’ office. As he walked there, he turned the calculator around
so that the word “union” was plainly visible. When he got to
Nunez, Nunez stated that all electrical department jobs had
been filled the day before and that the only jobs that Respon-

559 Maurice’s testimony that he had previously been seeking work
when he applied with Respondent was incredible.
AVONDALE INDUSTRIES

1459
dent then had were for welders and tackers. Cuenca thanked
Nunez and left. Nunez denied that he saw such a calculator, but
I believe Cuenca’s testimony on this point, and I find that Nu-
nez did see the prounion insignia. Moreover, as noted, Nunez
admitted that the personnel office clerk had told him that all of
the applicants were wearing prounion insignia; this would nec-
essarily cause Nunez to suspect that Cuenca held the same
sympathies as the other applicants that were there at the time.
The records in evidence demonstrate that Respondent hired 43
electrical department helpers during the August through No-
vember period.
Nunez coded Cuenca’s application “G.” Nunez testified that
he did not consider Cuenca for employment because: “Mr.
Cuenca’s background indicated that he was a skilled carpenter.
We had no carpenters available—carpenter positions available
at that time. He also applied for electrician’s helper. Electrician
helper positions were not available at that time that he applied
as well.” Nunez further testified that: “I called Mr. Cuenca into
my office to explain to him that we had been hiring electrician
helpers, advanced level, and that his application would be
maintained and if an additional position became available, he
would be considered.” (Nunez denied that this constituted an
interview.)
Nunez acknowledged that he did hire a electrician’s helper
about September 3, but he added: “[T]he offer of employment
to that electrician’s helper was made long before Mr. Cuenca
even applied and I believe he [the helper who did get hired] had
a physical problem that he had to resolve.” The records in evi-
dence show that Respondent hired one Ronald Parquet as an
electrical department helper on September 3 at a rate of $6.76
per hour. Apparently this was the employee to whom Nunez
referred.
Assuming that Nunez’ reason for hiring Parquet, rather than
Cuenca, is valid, this does not explain why Respondent did not
offer Cuenca one of the jobs that the 42 other applicants for
electrical department helper positions received. Nevertheless,
as quoted in Simon’s case, Nunez credibly testified that Re-
spondent did not hire anyone at an entry-level position who had
been making in excess of $10 per hour. Cuenca had been mak-
ing well in excess of that figure, and his 6-months’ experience
as an electrician’s helper would have qualified him for no more
than an entry-level position in the electrical department. There
is no reason to believe that Nunez would have made an excep-
tion in Cuenca’s case had he not worn (or carried) prounion
insignia when he applied for employment. I shall therefore
recommend dismissal of the allegation that Respondent unlaw-
fully refused to consider, as well as hire, Cuenca.
(15) David Grafe
On August 26, David Grafe (vol. 42) and Steven Appel (vol.
37) went together to the personnel office. Grafe wore a Carpen-
ters’ union cap and a shirt with a “Union-Yes” sticker on it. On
his application, Grafe indicated that he sought work as a “car-
penter,” and he stated that he had 20 years of experience. Grafe
listed five employers from 1990 through February 1993, he
stated that he did “form. carp.” or “scaffolding” work for each
of them, and he listed his last hourly wage rate as $14.36. Grafe
left the space for listing specialized skills blank. Grafe testified
that after he and Appel finished filling out their applications,
they were told by the clerk to go back to Nunez’ office. When
they got there, according to Grafe, Nunez stated that he noticed
that he and Appel were union members. Further according to
Grafe, Nunez told him and Appel: “Well, usually our carpenters
here stay here at Avondale a lifetime then they retire. . . . We
don’t have anything for you all right now.” Grafe and Appel
then left the premises. Again, Nunez credibly denied that he
told any applicant that he noticed that they were “union.”
Nunez coded Grafe’s application “G.” Nunez testified that he
did not consider Grafe for employment because “Mr. Grafe, as
well, is a carpenter and we did not have carpenter positions
available at that time and he did not have the skills necessary to
qualify for the openings that were currently open.” Nunez was
credible in this testimony which the General Counsel did not
seek to refute. I shall therefore recommend dismissal of the
allegation that Respondent unlawfully refused to consider, as
well as hire, Grafe.
(16) Steven Appel
Appel also wore a Carpenters’ union cap and a “Union-Yes”
sticker when he and Grafe went to the personnel office. On his
application, Appel indicated that he sought work of “carpen-
ter/maint,” and he stated that he had 15 years’ experience. Ap-
pel listed five former employers and stated that he had been a
carpenter, carpenter foreman, or “project superintendent” for
those employers. Appel listed his last hourly wage rate as $15
(although an earlier wage rate was $18 per hour). In the space
for specialized skills, Appel entered, “table saws, drill press,
etc.” Appel testified consistently with Grafe about their meeting
with Nunez.
Nunez did not code Appel’s application. Nunez testified that
he did not consider Appel for employment because: “Mr. Appel
applied for a carpentry or maintenance position. Avondale did
not have any carpenter positions available. He did not indicate
any experience on his application that would have qualified him
for the maintenance mechanic’s position and he made signifi-
cantly more than what Avondale offered for entry-level helper
positions.” Nunez was credible in this testimony which the
General Counsel did not seek to refute. I shall therefore rec-
ommend dismissal of the allegation that Respondent unlawfully
refused to consider, as well as hire, Appel.
CONCLUSIONS OF LAW
1. By the following acts and conduct Respondent has vio-
lated Section 8(a)(1) of the Act:
(a) Gerdes, on June 28, 1993, threatened Respondent’s em-
ployees with more strict enforcement of work rules because
they had aided or supported the Union or because Respondent
suspected them of having aided or supported the Union.
(b) DeNicola, about June 14, 1993, threatened Respondent’s
employees with plant closure if they selected the Union as their
collective-bargaining representative.
(c) DeNicola, on June 28, 1993, threatened Respondent’s
employees with more strict enforcement of work rules because
they had aided or supported the Union or because Respondent
suspected them of having aided or supported the Union.
(d) DeNicola, in late July 1993, threatened Respondent’s
employees with discharge because they had worn prounion
insignia.
(e) Torres, on June 28, 1993, threatened an employee with
unspecified reprisals because of his participation in a Board-
conducted election.
(f) Autin, in April or May 1994, threatened its employees
with unspecified reprisals because they had worn prounion
insignia.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1460
(g) Fedrick, in May 1993, threatened Respondent’s employ-
ees with plant closure if they selected the Union as their collec-
tive-bargaining representative.
(h) Falgout, on October 22, 1993, threatened Respondent’s
employees with unspecified reprisals because they had worn
prounion insignia.
(i) Terry, in July 1993, threatened Respondent’s employees
with discharge if they filed charges under the Act.
(j) Fruchtnicht, in early June 1994, threatened Respondent’s
employees with unspecified reprisals if they filed charges under
the Act.
(k) Reeves, in March or April 1993, interrogated Respon-
dent’s employees about their union membership, activities or
desires.
(l) Emil Foret Jr., about June 1, 1993, interrogated Respon-
dent’s employees about their union membership, activities, or
desires.
(m) Clement, in late September 1993, threatened an em-
ployee that it would deny him a transfer because an unfair labor
practice charge had been filed on behalf of that employee.
(n) Bourg Sr., in the spring of 1993, solicited Respondent’s
employees’ grievances and promised to remedy them in order
to discourage prounion sympathies.
(o) Benoit, on June 9, 1994, threatened to withhold wage in-
creases from an employee because that employee had been
wearing prounion insignia.
(p) Bourgeois, in April or May 1993, threatened Respon-
dent’s employees with discharge if they wore prounion insignia
or were seen reading prounion literature.
(q) Pierre, in April or May 1993, interrogated Respondent’s
employees about their union membership, activities or desires.
(r) Sanchez, on or about April 20, 1994, instructed an em-
ployee to remove prounion insignia from his clothing.
(s) Bourgeois, on March 11, 1993, threatened Respondent’s
employees with layoffs if they selected the Union as their col-
lective-bargaining representative.
(t) Rotolo, in mid-June 1993, interrogated Respondent’s em-
ployees about their union membership, activities or desires.
(u) Christiansen, in March 1993, threatened Respondent’s
employees with unspecified reprisals if they selected the Union
as their collective-bargaining representative.
(v) Christensen, in mid-April 1993, interrogated Respon-
dent’s employees about their union membership, activities or
desires.
(w) Russell, about June 2, 1993, instructed Respondent’s
employees not to wear prounion insignia.
(x) Cortez, in late May 1993, threatened Respondent’s em-
ployees with unspecified reprisals because they mentioned the
word “union” in discourse with supervisors.
(y) Ledet, in late May 1993, interrogated Respondent’s em-
ployees about their union membership, activities, or desires.
(z) Caston, on or about May 17, 1993, threatened Respon-
dent’s employees by telling them that other employees had
been discharged because of their union activities.
(aa) DeNicola, in mid-July 1993, told employees that other
employees would not be reinstated because they were prounion.
(bb) DeNicola, in mid-July 1993, told employees that it
would be futile for them to select the Union as their collective-
bargaining representative.
(cc) Simpson, on May 17, 1994, threatened an employee
with discharge or other unspecified reprisals because he had
engaged in union or other protected concerted activities.
(dd) Jay Pertuit, on April 17, 1993, threatened Respondent’s
employees with discharge if they signed union authorization
cards.
(ee) Carl Mott Jr., in mid-May 1993, interrogated Respon-
dent’s employees about their union membership, activities, and
desires.
(ff) Nealy, about June 18, 1993, interrogated employees
about their union sympathies.
(gg) Poche, in late June 1993, created the impression that
Respondent’s employees’ protected activities were under its
surveillance.
(hh) Poche, in late June 1993, interrogated an employee
about his union membership, activities, or desires.
(ii) Poche, in late June 1993, threatened an employee that in-
dulgences or privileges would be withdrawn if that employee
supported the Union.
(jj) Pretlove, in April 1993 promulgated a rule precluding
Respondent’s employees from talking about the Union.
(kk) Pretlove, in April 1993, threatened Respondent’s em-
ployees with discharge if they talked about the Union during
working time.
(ll) Christiansen, in June 1993, interrogated an employee
about his union membership, activities, or desires.
(mm) Christiansen, in June 1993, threatened an employee
with unspecified reprisals because of the employee’s expression
of interest in union activities.
(nn) Christiansen, on June 25, 1993, solicited employees to
demonstrate against the Union.
(oo) DeNicola, about June 1, 1993, created the impression
that Respondent’s employees’ union activities were under its
surveillance.
(pp) Reeves, on May 17, 1993, threatened Respondent’s em-
ployees with unspecified reprisals because of their union or
protected concerted activities.
(qq) Taylor, in late June 1993, threatened Respondent’s em-
ployees with plant closure if they selected the Union as their
collective-bargaining representative.
(rr) Bourgeois, in early March 1993, threatened Respon-
dent’s employees with plant closure if they selected the Union
as their collective-bargaining representative.
(ss) Bourg, in March 1993, threatened Respondent’s em-
ployees with plant closure if they selected the Union as their
collective-bargaining representative.
(tt) Mullins, on June 22, 1993, threatened Respondent’s em-
ployees with unspecified reprisals because of their prounion
sympathies.
(uu) Boudreaux, on September 7, 1993, created the impres-
sion of surveillance in an employee.
(vv) Ramirez, in March 1993, threatened Respondent’s em-
ployees with unspecified reprisals because of their union activi-
ties.
(ww) Ernest Foret Sr., on June 1, 1993, threatened Respon-
dent’s employees with discharge or unspecified reprisals if they
continued to assist the Union.
(xx) Benoit, in September 1993, threatened Respondent’s
employees with transfer or discharge if they continued to sup-
port the Union.
(yy) Whittington, in April 1994, threatened Respondent’s
employees with discharge if they supported the Union.
(zz) Navarro, in June 1993, interrogated Respondent’s em-
ployees about their union membership, activities or desires.
AVONDALE INDUSTRIES

1461
(aaa) Carr, on March 15, 1993, solicited the grievances of
Respondent’s employees and promised to remedy those griev-
ances.
(bbb) Boudreaux, on June 21, interrogated an employee
about his union activities.
(ccc) Boudreaux, on June 21, coercively created an impres-
sion of surveillance of an employee’s protected activities.
(ddd) Murray, on March 22, 1993, interrogated Respondent’s
employees about their union membership, activities or desires.
(eee) Caston, in the spring of 1993, warned Respondent’s
employees that their efforts to secure collective bargaining
would be futile.
(fff) Kenny Danos, on July 22, 1993, threatened employees
with stricter enforcement of work rules, and discharge, because
of their protected activities.
(ggg) Ramirez, on or about July 1, 1993, told Respondent’s
employees that an employee had been transferred to a more
onerous position because he aided or supported the Union.
(hhh) Fradella, in July 1993, created an impression of unlaw-
ful surveillance of an employee’s protected activities.
(iii) Fradella, in July 1993, interrogated an employee about
his union activities.
(jjj) Mouton, on April 21, 1994, told Respondent’s employ-
ees that another employee had been reassigned because he had
aided or supported the Union.
(kkk) Grimes, on June 3, 1993, threatened an employee with
unspecified reprisals because he was wearing prounion insig-
nia.
(lll) Terry, on June 24, 1993, threatened Respondent’s em-
ployees by telling them that he would engage in closer supervi-
sion of their work because Respondent’s employees aided or
supported the Union.
(mmm) Cortez, in June 1993, ordered an employee not to
take literature from union representatives and not to talk to
them at Respondent’s gates.
(nnn) Zeringue, in June 1993, warned an employee that the
employees’ collective-bargaining efforts would be futile.
(ooo) Folse, at some time between March and September 30,
1993, threatened an employee with unspecified reprisals be-
cause he was wearing prounion insignia.
(ppp) Howard, on May 13, 1994, instructed Respondent’s
employees to remove union insignia from their clothing.
(qqq) Howard, on May 18, 1994, threatened an employee
that he would not receive a wage increase because that em-
ployee had been seen wearing prounion insignia.
(rrr) LeFort, on June 21, 1993, threatened to remove an em-
ployee from the main shipyard because he had aided or sup-
ported the Union.
(sss) LaSalle, on August 2, 1993, threatened Respondent’s
employees by telling them that they had been transferred to
Respondent’s Westwego shipyard because they had aided or
supported the Union.
(ttt) Luttrell, on September 7, 1993, threatened Respondent’s
employees with discharge because they had aided or assisted
the Union.
(uuu) Rabestein, about June 30, 1993, promulgated a rule
discriminatorily precluding Respondent’s employees from talk-
ing about the Union during working time.
2. By the following acts and conduct Respondent has vio-
lated Section 8(a)(3) and (1) of the Act.
(a) Discharging the following-named employees:

Jose Aguilar Eddie Johnson
Isador Ancar Marie Joseph
Edward Armstrong Charles Kent
Dwight Ballard Barbara Marshall
Charles Bennett Joseph Melton
Michael Boudreaux Michael Molaison
Johann Burton Patrick Noah
Vernon Charles Octave Rouege
Leroy Clark Audra Scott
Keith Collins Eugene Sheard
Charles Fleming Joseph Simpson
Julie George William Smith
Carlos Henriquez Donald Thompson
Vincente Hernandez Donald Varnado

(b) Suspending the following-named employees on or about
the dates set opposite their respective names:

Dwight Ballard February 2 and
June 29, 1994
Mark Cancienne March 1, 1994
Larry Gibson May 10, 1994
Robert Ruiz May 12, 1994
Lennie Valentine February 2, 1994

(c) Issuing warning notices to the following-named employ-
ees on the dates set opposite their names:

Dwight Ballard April 26, 1994
Dwight Ballard May 18, 1994
Dwight Ballard June 6, 1994
Dwight Ballard June 28, 1994
Harold Adams August 30, 1993
Carlos Henriquez February 1, 1994
Joe Howard October 12, 1993
Cornelius King July 30, 1993
Michael Molaison June 3, 1993
Donald Mason December 9, 1993
Donald Mason May 19, 1994
Philip Perera June 30, 1993
Philip Perera March 10, 1994
Philip Perera March 16, 1994
Darrell Smith July 23, 1993
Octave Rouege June 15, 1993 (2)
Richard St. Blanc July 29, 1993
Lennie Valentine July 15, 1994

(d) Assigning the following-named employees to more oner-
ous work on or about the dates set opposite their respective
names:

Mark Cancienne June 30, 1993
Larry Gibson May 31, 1993
Charles Giles June 21, 1993
Mamoru Honjo April 22, 1994
Loraine Moses June 2, 1993
Sidney Jasmine December 20, 1993
Richard St. Blanc June 29, 1993
Richard St. Blanc July 29, 1993

(e) Denying Robert Ruiz the use of a telephone on May 12,
1994.
(f) Discriminating against the following-named employees in
regard to pay for a day that these employees were compelled by
Respondent to appear at a Board representation hearing:

Harold DiMaggio Ray Steward
Chester Green Richard St. Blanc
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1462
Philip Perera Harry Thompson
Terry L. Perkins

(g) Refusing to hire Cynthia Johnson because of her known
or suspected prounion sympathies.
3. Respondent has not otherwise violated the Act as alleged
herein.
4. Because of their misconduct that has been proved, Isador
Ancar and Octave Rouege are not entitled to reinstatement, and
Ancar and Rouege are entitled only to partial backpay.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find it necessary to order it to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged 28 em-
ployees, and having discriminatorily refused to hire 1 em-
ployee, it must offer them reinstatement and make them whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from the dates of discharges to the dates of proper
offers of reinstatements, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in Florida Steel Corp., 231 NLRB 651
(1977).560 Because of the Respondent’s egregious misconduct,
demonstrating a general disregard for the employees’ funda-
mental rights, I find it necessary to issue a broad Order, requir-
ing the Respondent to cease and desist from infringing in any
other manner on rights guaranteed employees by Section 7 of
the Act. Hickmott Foods, 242 NLRB 1357 (1979). Moreover,
other special remedies are required to dissipate the effects of
Respondent’s conduct.
I have found that, in the period from March 1993 through
June 1994, Respondent violated Section 8(a)(1) on 73 different
occasions. In addition, in violation of Section 8(a)(3), Respon-
dent has discharged 28 employees, suspended 5 employees,
issued 18 warning notices to employees, assigned onerous work
to 8 employees, denied employment to 1 employee-applicant,
and denied 8 employees benefits to which they would otherwise
have been entitled. In Fieldcrest Cannon, Inc., 318 NLRB 470,
473–474 (1995), enfd. in relevant part 97 F.3d 65 (4th Cir.
1996), where there was a larger unit of employees (6000 in
Fieldcrest, as opposed to 4100 here) but a lesser number of
unfair labor practices, the Board held that “we find that the
Respondent’s unfair labor practices are so numerous, pervasive,
and outrageous that special notice and access remedies are nec-
essary to dissipate fully the coercive effects of the unfair labor
practices found.” 318 NLRB at 473. The quantity and severity
of the unfair labor practices found herein, combined with Re-
spondent’s simultaneous refusal to bargain with the Union as
found in the collateral proceeding, require special remedies in
this case, as well. The circumstances of Fieldcrest Cannon,
Inc., however, included an unresolved question concerning
representation, and the access provisions of the Board’s remedy
in that case were directed at securing a valid resolution of that
question. Here, however, the Charging Party has already been
certified by the Board as the collective-bargaining representa-
tive of Respondent’s production and maintenance employees,
and such remedies are unnecessary to achieve a valid election.

560 Limited remedies for discriminatees Isador Ancar and Octave
Rouege are specified in the narratives of their cases.
Therefore, I here grant only the requests of the General Counsel
and the Charging Party for the following notice remedies:561
(1) In addition to posting at its Avondale and Westwego fa-
cilities copies of the attached notice that is marked “Appendix
A,” publish the notice in any of its internal newsletters and mail
copies of the notice to all its present employees and all employ-
ees on Respondent’s payroll since March 11, 1993, when Re-
spondent began its unlawful conduct. All such notices, whether
mailed, posted or published, are to be signed by Respondent’s
chief executive officer, Albert Bossier.
(2) Convene during working time all employees at Respon-
dent’s Avondale and Westwego facilities, by shifts, depart-
ments, or otherwise, and have Albert Bossier read the notice to
the employees, or, at Albert Bossier’s option, permit a Board
agent to read the notice to the employees. If Albert Bossier
chooses to have a Board agent read the notice to the employees,
he shall be present while the notice is read. In either event,
adequate presentation and amplification facilities shall be pro-
vided by Respondent at its costs.
The reading of the notice by Bossier, or his presence while
the notice is read, is necessary because it was he who directed
Respondent’s campaign, according to Production Vice Presi-
dent Simpson and Personnel Vice President Griffin. As I have
found, that campaign contained an outrageous and pervasive
number and nature of unfair labor practices. If the employees
did not, in fact, know that it was Bossier who was directing
Respondent’s scofflaw campaign against their efforts to exer-
cise their rights under the Act, they would reasonably have
assumed it. (If from nothing else, the employees would have
assumed it from Bossier’s June 1, 1993 speech that labeled all
prounion employees as “whiners, malcontents and slackers”
solely because they did support the Union.) Until Respondent’s
employees are effectively given assurance that Albert Bossier
knows that they have rights that are protected by law, the at-
mosphere of intimidation that he created will never be dis-
pelled. Only when Bossier signs the notice and reads it to the
employees will that assurance be effectively given.562
[Recommended Order omitted from publication.]
APPENDIX B
Employees who were shown by the General Counsel’s Ex-
hibit 364 to have received three or more warning notices (WN)
within 12-month periods from 1990 through 1994 without be-
ing discharged. The employees are sorted according to the
count (#) of those who received each quantity of warning no-
tices.

Tot.

Badge

Name

WN

#

Period

1

13162

Oscar James

10

1

6/91–6/92

2

480

Anthony Rob-
inson

9

1

4/91–1/92

561 The other notice remedies that the General Counsel and the
Charging Party request are not called for in terms of need or the au-
thorities cited.
562 Of course, if Bossier is no longer Respondent’s chief executive
officer, his successor shall comply with the notice provisions of this
decision. If the Board does not order Bossier to read the notice to the
employees, it should, at least, order Production Vice President Simpson
to do so. To the production and maintenance employees, Simpson is the
most visible vice president; moreover, a reading by anyone lower in
Respondent’s hierarchy would have substantially less effect.
AVONDALE INDUSTRIES

1463

Tot.

Badge

Name

WN

#

Period

3

9925

Calvin
McGaughy

9

2

__/91–12/91

4

2013

Martha Cox

9

3

5/91–2/92

5

10989

Thomas White

9

4

10/90–9/91

6

3032

Jasper White

9

5

10/90–8/91

7

316

Leonard Brous-
seau

8

1

3/91-1/92

8

1848

Floyd Naquin

8

2

5/91–1/92

9

2987

Gary Smith

8

3

5/91–4/91

10

10672

Kenneth Patter-
son

8

4

5/91–3/91

11

9851

Frank Savoie

7

1

10/12/90–
10/9/91

12

4274

Jonathan Vi-
drine

7

2

4/92–3/93

13

11606

Randall Shef-
field

7

3

1/91–12/91

14

11099

Lawrence
Williams

7

4

12/91–9/92

15

1864

Chris Orbeck

7

5

2/91–1/92

16

1586

Todd Terring-
ton

7

6

3/91–2/92

17

2602

John Wright

7

7

6/91–9/92

18

4085

Robert Bennett

7

8

8/91–7/92

19

3058

William Brown

7

9

1/91–12/91

20

4295

Leo Leger

7

10

2/91–1/92

21

1138

Vernon Charles

7

11

2/92–12/92

22

9646

Dale Hughes

7

12

6/91–3/92

23

4551

Jerry
Hollingsworth

7

13

4/91–1/92

24

125

Billy Duet

7

14

5/91–4/92

25

3469

Leroy Coler

7

15

10/90–6/91

26

2836

Walter Ander-
son

6

1

4/92–3/93

27

5127

Irvin C. Aucoin

6

2

2/93–1/94

28

9603

Curtis R. Au-
gust

6

3

3/91–8/91

29

5389

Alfred Adams

6

4

9/90–6/91

30

5504

Waylon Young

6

5

12/91–4/92

31

6883

Robert
C.Witherell

6

6

6/91–4/92

Tot.

Badge

Name

WN

#

Period
32 5614 Bobby Winkles 6 7 12/91–12/92

33

4663

Charles Cain

6

8

9/91–7/92

34

4136

Jimmie Val-
dery

6

9

11/91–6/92

35

1557

Brian Thibo-
daux

6

10

4/93–3/94

36

12062

Rene’ Stewart

6

11

5/92–2/93

37

10796

Carol Steele

6

12

5/91–3/92

38

1259

Reynard Smith

6

13

7/28/92–
7/13/93

39

1454

Hollis Smith

6

14

7/90–5/91

40

4814

Leonard Scott

6

15

9/91–5/92

41

2920

Ronnie San-
difer

6

16

11/24/92–
11/29/93

42

9713

Javier O.
Rosales

6

17

8/2/90–
8/2/91

43

395

Tracy Robin-
son

6

18

8/91–5/92

44

9861

Aaron Clark

6

19

11/91–11/92

45

5758

James Roberts

6

20

10/30/90–
10/3/91

46

424

Anthony Pre-
ston

6

21

6/91–10/91

47

12301

Roderick Percy

6

22

2/91–12/91

48
48

477

Conrad Noel

6

23

5/91–3/92

49

3706

Roger Mclaine

6

24

5/93–11/93

50

4290

Gregory Martin

6

25

8/91–4/92

51

9660

Forres Collins

6

26

6/90–11/90

52

10911

Michael Martin

6

27

__/91–8/91

53

10671

Leanetta Jack-
son

6

28

5/91–2/92

54

223

Carey Holmes

6

29

6/91–12/91

55

401

Carey Holmes

6

30

5/90–4/91

56

102

Terrell Griffin

6

31

6/91–5/92

57

12015

Robert Griffin

6

32

6/90–3/91

58

639

Nicole Gibson

6

33

5/91–3/92

59

12367

Toby J. Bou-
dreaux

6

34

8/93–5/94

60

3504

Joseph Gassen-
berger

6

35

2/20/91–
2/19/92

61

5743 Jerome Ferdi-
d

6

36

1/92–12/92
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1464

Tot.

Badge

Name

WN

#

Period
nand

62

10990

Vernell Ed-
wards

6

37

10/90–6/91

63

10525

Solomon Dur-
ousseau

6

38

5/91–1/92

64

2265

Jerry Deese

6

39

5/91–1/92

65

893

Arthur Bour-
geois

5

1

4/91–3/92

66

3910

Joseph Boines

5

2

10/91–1/92

67

5413

David Ber-
geron

5

3

3/91–2/92

68

5369

Alejandra
Barrera

5

4

2/92–12/92

69

520

LesDraion
Young

5

5

10/93–8/94

70

12133

John Dozier

5

6

9/90–9/91

71

1767

Cedric Branche

5

7

1/92–12/92

72

2378

Linda Wind-
ham

5

8

7/91–2/92

73

10506

Oscar Briggs

5

9

11/90–10/91

74

12058

Willie Dawson

5

10

2/92–11/92

75

6841

Leonard T.
Watkins

5

11

6/91–5/92

76

5207

Rodney Wash-
ington

5

12

1/92–12/92

77

1278

Andre Aguil-
lard

5

13

8/91–2/92

78

528

Gerald Duhe

5

14

9/93–12/93

79

5685

Donna Dunn

5

15

5/91–9/91

80

2550

TeDarryle
Edwards

5

16

5/93–4/94

81

6878

William Tar-
rence

5

17

10/92–8/93

82

529

Mark Stock-
man

5

18

5/92–6/92

83

11313

Nena St. Julien

5

19

11/90–10/91

84

4680

Gregory Alex-
ander

5

20

12/91–9/92

85

1525

Ansley Smith

5

21

1/93–2/93

86

4011

Don Smith

5

22

7/92–1/93

87

4103

Elijah Epps

5

23

8/91–7/92

88

6929

Frank Louis
Smith

5

24

9/90–6/91

Tot.

Badge

Name

WN

#

Period

62

10990

Vernell Ed-
wards

6

37

10/90–6/91

63

10525

Solomon Dur-
ousseau

6

38

5/91–1/92

64

2265

Jerry Deese

6

39

5/91–1/92

65

893

Arthur Bour-
geois

5

1

4/91–3/92

66

3910

Joseph Boines

5

2

10/91–1/92

67

5413

David Ber-
geron

5

3

3/91–2/92

68

5369

Alejandra
Barrera

5

4

2/92–12/92

69

520

LesDraion
Young

5

5

10/93–8/94

70

12133

John Dozier

5

6

9/90–9/91

71

1767

Cedric Branche

5

7

1/92–12/92

72

2378

Linda Wind-
ham

5

8

7/91–2/92

73

10506

Oscar Briggs

5

9

11/90–10/91

74

12058

Willie Dawson

5

10

2/92–11/92

75

6841

Leonard T.
Watkins

5

11

6/91–5/92

76

5207

Rodney Wash-
ington

5

12

1/92–12/92

77

1278

Andre Aguil-
lard

5

13

8/91–2/92

78

528

Gerald Duhe

5

14

9/93–12/93

79

5685

Donna Dunn

5

15

5/91–9/91

80

2550

TeDarryle
Edwards

5

16

5/93–4/94

81

6878

William Tar-
rence

5

17

10/92–8/93

82

529

Mark Stock-
man

5

18

5/92–6/92

83

11313

Nena St. Julien

5

19

11/90–10/91

84

4680

Gregory Alex-
ander

5

20

12/91–9/92

85

1525

Ansley Smith

5

21

1/93–2/93

86

4011

Don Smith

5

22

7/92–1/93

87

4103

Elijah Epps

5

23

8/91–7/92

88

6929

Frank Louis
Smith

5

24

9/90–6/91
AVONDALE INDUSTRIES

1465

Tot.

Badge

Name

WN

#

Period
89 9397 Kevin Slugher 5 25 5/91–4/92

90

1177

Bruce Baradell

5

26

3/20/91–
3/17/92

91

2020

Ronnie Scott

5

27

11/92–1/93

92

781

Glenn Sanders

5

28

7/91–11/91

93

4142

Jennifer Rus-
sell

5

29

2/92–3/92

94

11817

Joseph Rivers

5

30

__/29/92–
1/5/93

95

737

Richard Ray

5

31

8/90–6/91

96

5019

Otis Fazande

5

32

2/92–5/92

97

11963

Reginald Rat-
liff

5

33

4/91–12/91

98

11621

Ernest Ranson

5

34

11/91–12/91

99

9604

Anthony Davis

5

35

1/93–12/93

100

9643

Richard Pierite

5

36

3/91–1/92

101

1133

Maurice Pierce

5

37

1/92–11/92

102

10210

Gerard Fernan-
dez

5

38

12/90–10/91

103

4408

Vayman Fer-
reira

5

39

11/91–3/92

104

4397

Philip Perera

5

40

6/93–3/94

105

9149

Michael Pear-
son

5

41

7/90–7/91

106

3082

Robert Pate

5

42

11/92–12/92

107

3221

Ramiro Campo

5

43

7/91–12/91

108

3358

Michael Parks

5

44

9/91–4/92

109

5754

Roland Flor-
ence

5

45

1/91–12/91

110

1365

Emanuel Fran-
cis

5

46

8/91–3/92

111

5440

Cory Meaux

5

47

__/93–6/93

112

1463

Dedrick Mar-
shall

5

48

9/91–4/92

113

1881

Michael Man-
ning

5

49

3/91–8/91

114

4852

Clint Louis

5

50

6/92–3/93

115

11507

Randall
Kowalewski

5

51

5/91–1/92

116

3357

Michael Fran-
cis

5

52

6/91–9/91

117

4308

Daryl Cuquet

5

53

1/91–12/91

Tot.

Badge

Name

WN

#

Period

90

1177

Bruce Baradell

5

26

3/20/91–
3/17/92

91

2020

Ronnie Scott

5

27

11/92–1/93

92

781

Glenn Sanders

5

28

7/91–11/91

93

4142

Jennifer Rus-
sell

5

29

2/92–3/92

94

11817

Joseph Rivers

5

30

__/29/92–
1/5/93

95

737

Richard Ray

5

31

8/90–6/91

96

5019

Otis Fazande

5

32

2/92–5/92

97

11963

Reginald Rat-
liff

5

33

4/91–12/91

98

11621

Ernest Ranson

5

34

11/91–12/91

99

9604

Anthony Davis

5

35

1/93–12/93

100

9643

Richard Pierite

5

36

3/91–1/92

101

1133

Maurice Pierce

5

37

1/92–11/92

102

10210

Gerard Fernan-
dez

5

38

12/90–10/91

103

4408

Vayman Fer-
reira

5

39

11/91–3/92

104

4397

Philip Perera

5

40

6/93–3/94

105

9149

Michael Pear-
son

5

41

7/90–7/91

106

3082

Robert Pate

5

42

11/92–12/92

107

3221

Ramiro Campo

5

43

7/91–12/91

108

3358

Michael Parks

5

44

9/91–4/92

109

5754

Roland Flor-
ence

5

45

1/91–12/91

110

1365

Emanuel Fran-
cis

5

46

8/91–3/92

111

5440

Cory Meaux

5

47

__/93–6/93

112

1463

Dedrick Mar-
shall

5

48

9/91–4/92

113

1881

Michael Man-
ning

5

49

3/91–8/91

114

4852

Clint Louis

5

50

6/92–3/93

115

11507

Randall
Kowalewski

5

51

5/91–1/92

116

3357

Michael Fran-
cis

5

52

6/91–9/91

117

4308

Daryl Cuquet

5

53

1/91–12/91
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1466

Tot.

Badge

Name

WN

#

Period
118 518 Louis Korlman 5 54 9/91–6/92

119

2426

Harold Gas-
senberger

5

55

2/92–5/92

120

2303

John Joseph

5

56

11/92–10/93

121

563

Armand Jones

5

57

1/90–12/90

122

11016

Brian Johnson

5

58

1/91–12/91

123

4879

Kenneth R.
Johnson

5

59

1/91–10/91

124

6913

Earl Gebhart

5

60

1/91–8/91

125

3291

Glenn Jeffreys

5

61

12/91–11/92

126

12992

Julie George

5

62

9/92–7/93

127

4216

Warren Gilbert

5

63

10/91–3/92

128

2942

Chad Granier

5

64

6/91–5/92

129

4348

Everette Bailey

5

65

1/94–9/94

130

5690

Robert
Jagodzinski

5

66

12/91–7/92

131

1029

Byron Jackson

5

67

8/92–8/92

132

9561

Marshall
Hunter

5

68

3/91–1/92

133

5846

Vernon Griffin

5

69

1/91–7/91

134

4666

Jeffrey Huff

5

70

12/90–9/91

135

11635

Allen Howe

5

71

7/91–3/92

136

3001

Duane Coston

5

72

10/93–5/94

137

4751

Wayne Hoff-
man

5

73

10/93–5/94

138

5862

Joseph Hirstuis

5

74

3/91–8/91

139

5854

Nelson Harri-
son

5

75

1/94–11/94

140

2995

Eric Harris

5

76

2/91–12/91

141

9656

Glenn Harris

5

77

5/91–12/91

142

2097

Ricky Harring-
ton

5

78

5/91–4/92

143

10608

Billy W. Grif-
fin

5

79

9/92–8/93

144

5343

Joseph Coon

4

1

9/92–2/93

145

2764

Wanda Bank-
ston

4

2

10/92–5/93

146

3270

A.C. Cockran

4

3

12/92–10/93

147

425

Nelson Cleve-
land

4

4

8/91–4/92

148

1596

Cornelius Clay-
t

4

5

9/92–12/92

Tot.

Badge

Name

WN

#

Period

119

2426

Harold Gas-
senberger

5

55

2/92–5/92

120

2303

John Joseph

5

56

11/92–10/93

121

563

Armand Jones

5

57

1/90–12/90

122

11016

Brian Johnson

5

58

1/91–12/91

123

4879

Kenneth R.
Johnson

5

59

1/91–10/91

124

6913

Earl Gebhart

5

60

1/91–8/91

125

3291

Glenn Jeffreys

5

61

12/91–11/92

126

12992

Julie George

5

62

9/92–7/93

127

4216

Warren Gilbert

5

63

10/91–3/92

128

2942

Chad Granier

5

64

6/91–5/92

129

4348

Everette Bailey

5

65

1/94–9/94

130

5690

Robert
Jagodzinski

5

66

12/91–7/92

131

1029

Byron Jackson

5

67

8/92–8/92

132

9561

Marshall
Hunter

5

68

3/91–1/92

133

5846

Vernon Griffin

5

69

1/91–7/91

134

4666

Jeffrey Huff

5

70

12/90–9/91

135

11635

Allen Howe

5

71

7/91–3/92

136

3001

Duane Coston

5

72

10/93–5/94

137

4751

Wayne Hoff-
man

5

73

10/93–5/94

138

5862

Joseph Hirstuis

5

74

3/91–8/91

139

5854

Nelson Harri-
son

5

75

1/94–11/94

140

2995

Eric Harris

5

76

2/91–12/91

141

9656

Glenn Harris

5

77

5/91–12/91

142

2097

Ricky Harring-
ton

5

78

5/91–4/92

143

10608

Billy W. Grif-
fin

5

79

9/92–8/93

144

5343

Joseph Coon

4

1

9/92–2/93

145

2764

Wanda Bank-
ston

4

2

10/92–5/93

146

3270

A.C. Cockran

4

3

12/92–10/93

147

425

Nelson Cleve-
land

4

4

8/91–4/92

148

1596

4

5

9/92–12/92
AVONDALE INDUSTRIES

1467

Tot.

Badge

Name

WN

#

Period
ton

149

6886

Darryl R. Ban-
nister

4

6

12/91–9/92

150

3419

Mark Cuquet

4

7

7/91–1/92

151

3150

Philip Celestin

4

8

10/92–4/93

152

12662

Sterling Carter

4

9

4/91–8/91

153

554

Henry Carey

4

10

9/90–7/91

154

12875

Johnny Car-
cisse

4

11

12/91–6/92

155

943

Stephan Cail-
louet

4

12

5/91–1/92

156

5378

James Cagelosi

4

13

4/10/90–
4/2/91

157

5033

Reginald Byes

4

14

12/91–2/92

158

6932

Michael Bush

4

15

2/94–11/94

159

4398

Ronald Brown

4

16

2/90–1/91

160

1366

Rhonda Davis

4

17

12/91–7/92

161

9604

Anthony Davis

4

18

10/90–9/91

162

10471

Spencer Brown

4

19

12/90–11/91

163

4925

Ronnie W.
Davis

4

20

9/92–9/93

164

5105

Ronnie Davis

4

21

6/91–4/92

165

12788

Charles Davis

4

22

2/92–2/93

166

10184

Derric Brown

4

23

5/90–2/91

167

3754

James Brown

4

24

1/93–9/93

168

1237

Willie Brock

4

25

2/94–8/94

169

6874

Kerry J.
Brashears

4

26

3/92–2/93

170

2775

Raul Delapaz

4

27

7/93–1/94

171

3156

Kirby Womack

4

28

5/93–1/94

172

5173

Terrence Wit-
son

4

29

4/91–2/92

173

2628

Fred Wilson

4

30

11/90–6/91

174

4046

Kevin Williams

4

31

8/92–7/93

175

2358

Brian Desselle

4

32

7/92–7/93

176

2713

Merlin Wil-
liams

4

33

5/93–5/94

177

1884

Tony Williams

4

34

9/5/91–
9/3/92

178

10242

Margie Adams

4

35

1/91–12/91

Tot.

Badge

Name

WN

#

Period

149

6886

Darryl R. Ban-
nister

4

6

12/91–9/92

150

3419

Mark Cuquet

4

7

7/91–1/92

151

3150

Philip Celestin

4

8

10/92–4/93

152

12662

Sterling Carter

4

9

4/91–8/91

153

554

Henry Carey

4

10

9/90–7/91

154

12875

Johnny Car-
cisse

4

11

12/91–6/92

155

943

Stephan Cail-
louet

4

12

5/91–1/92

156

5378

James Cagelosi

4

13

4/10/90–
4/2/91

157

5033

Reginald Byes

4

14

12/91–2/92

158

6932

Michael Bush

4

15

2/94–11/94

159

4398

Ronald Brown

4

16

2/90–1/91

160

1366

Rhonda Davis

4

17

12/91–7/92

161

9604

Anthony Davis

4

18

10/90–9/91

162

10471

Spencer Brown

4

19

12/90–11/91

163

4925

Ronnie W.
Davis

4

20

9/92–9/93

164

5105

Ronnie Davis

4

21

6/91–4/92

165

12788

Charles Davis

4

22

2/92–2/93

166

10184

Derric Brown

4

23

5/90–2/91

167

3754

James Brown

4

24

1/93–9/93

168

1237

Willie Brock

4

25

2/94–8/94

169

6874

Kerry J.
Brashears

4

26

3/92–2/93

170

2775

Raul Delapaz

4

27

7/93–1/94

171

3156

Kirby Womack

4

28

5/93–1/94

172

5173

Terrence Wit-
son

4

29

4/91–2/92

173

2628

Fred Wilson

4

30

11/90–6/91

174

4046

Kevin Williams

4

31

8/92–7/93

175

2358

Brian Desselle

4

32

7/92–7/93

176

2713

Merlin Wil-
liams

4

33

5/93–5/94

177

1884

Tony Williams

4

34

9/5/91–
9/3/92

178

10242

Margie Adams

4

35

1/91–12/91
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1468

Tot.

Badge

Name

WN

#

Period
179 11281 Nilton J. Do-
minique
4 36 10/91–4/92

180

1941

Terry White

4

37

9/90–9/91

181

9580

Timothy White

4

38

3/90–5/90

182

2981

Mervin White

4

39

9/90–8/91

183

6928

Jerry Weber

4

40

4/91–4/92

184

537

Ray Washing-
ton

4

41

4/91–1/92

185

4176

Yvette Doyle

4

42

1/92–6/92

186

2156

John Warr

4

43

9/91–4/92

187

5190

Carl A. Dragg

4

44

2/94–11/94

188

12709

Carmalee Du-
bose

4

45

10/91–5/92

189

481

Estiben Villa-
fuerte

4

46

7/91–3/92

190

11056

Celeste Du-
frene

4

47

2/91–1/92

191

1969

Edward Veal

4

48

7/91–1/92

192

5395

Donald Var-
nado

4

49

1/92–12/92

193

567

Robbie Uzee

4

50

10/90–7/91

194

11061

Patrice Dumas

4

51

3/94–7/94

195

12944

Steve Turnage

4

52

6/91–8/91

196

1446

David Towns

4

53

9/90–7/91

197

5820

Harold Towns

4

54

3/91–12/91

198

11255

Sean P. Thorn-
ton

4

55

4/90–11/90

199

11434

Reginald Du-
plessis

4

56

3/91–1/92

200

2142

Anthony Tho-
mas

4

57

8/91–6/92

201

893

Arthur Bour-
geois

4

58

9/92–7/93

202

2513

Monica Tho-
mas

4

59

5/92–1/93

203

1485

Charles Ed-
wards

4

60

7/91–5/92

204

5156

Tricia A. Tho-
mas

4

61

1/92–1/93

205

2142

Anthony Tho-
mas

4

62

10/92–1/93

206

9138

James Theriot

4

63

1/92–1/93

207

3154

Christopher
Th i t

4

64

2/94–6/94

Tot.

Badge

Name

WN

#

Period

180

1941

Terry White

4

37

9/90–9/91

181

9580

Timothy White

4

38

3/90–5/90

182

2981

Mervin White

4

39

9/90–8/91

183

6928

Jerry Weber

4

40

4/91–4/92

184

537

Ray Washing-
ton

4

41

4/91–1/92

185

4176

Yvette Doyle

4

42

1/92–6/92

186

2156

John Warr

4

43

9/91–4/92

187

5190

Carl A. Dragg

4

44

2/94–11/94

188

12709

Carmalee Du-
bose

4

45

10/91–5/92

189

481

Estiben Villa-
fuerte

4

46

7/91–3/92

190

11056

Celeste Du-
frene

4

47

2/91–1/92

191

1969

Edward Veal

4

48

7/91–1/92

192

5395

Donald Var-
nado

4

49

1/92–12/92

193

567

Robbie Uzee

4

50

10/90–7/91

194

11061

Patrice Dumas

4

51

3/94–7/94

195

12944

Steve Turnage

4

52

6/91–8/91

196

1446

David Towns

4

53

9/90–7/91

197

5820

Harold Towns

4

54

3/91–12/91

198

11255

Sean P. Thorn-
ton

4

55

4/90–11/90

199

11434

Reginald Du-
plessis

4

56

3/91–1/92

200

2142

Anthony Tho-
mas

4

57

8/91–6/92

201

893

Arthur Bour-
geois

4

58

9/92–7/93

202

2513

Monica Tho-
mas

4

59

5/92–1/93

203

1485

Charles Ed-
wards

4

60

7/91–5/92

204

5156

Tricia A. Tho-
mas

4

61

1/92–1/93

205

2142

Anthony Tho-
mas

4

62

10/92–1/93

206

9138

James Theriot

4

63

1/92–1/93

207

3154

4

64

2/94–6/94
AVONDALE INDUSTRIES

1469

Tot.

Badge

Name

WN

#

Period
Theriot

208

12172

Guy Tessier

4

65

5/92–1/93

209

822

Freddie Aizen

4

66

3/90–3/91

210

13058

Brian Ellis

4

67

12/91–7/92

211

9863

Stanley Terrell

4

68

8/90–7/91

212

9221

Clayton Tarver

4

69

8/91–5/92

213

10850

Kim Swanson

4

70

3/91–7/91

214

836

Michael Enger-
ran

4

71

1/93–8/93

215

4168

Perry Suggs

4

72

5/91–8/91

216

10047

Ted Stone

4

73

6/91–3/92

217

12062

Rene’ Stewart

4

74

5/91–4/92

218

6943

Fabian P. Steib

4

75

12/92–2/93

219

4347

Raynell Fair

4

76

10/90–7/91

220

388

Robert St. Pe

4

77

2/92–10/92

221

3101

Pairlee Spur-
lock

4

78

6/93–12/93

222

3284

Keith Beasley

4

79

8/91–3/92

223

5108

Joseph Bel-
monte

4

80

8/93–12/93

224

4380

William Smith

4

81

2/93–10/93

225

9766

Jeffrey Favro

4

82

2/91–8/91

226

9765

Calvert Smith

4

83

5/91–6/91

227

4050

Denise Smart

4

84

10/91–3/92

228

4048

Dennis Smart

4

85

10/91–6/92

229

10459

Van Small

4

86

7/92–5/93

230

5408

Gregory
Simeon

4

87

10/90–8/91

231

700

Dave Feurtado

4

88

10/92–3/93

232

9696

Albert Shep-
pard

4

89

2/91–5/91

233

3149

Gene Shelby

4

90

6/90–3/91

234

2021

Eugene Sheard

4

91

1/93–6/93

235

3037

Michael Folse

4

92

1/22/91–
1/16/92

236

10632

Wayne M.
Shea

4

93

11/90–9/91

237

5283

Albert Francis

4

94

12/90–10/91

238

5185

Michael Belton

4

95

7/91–1/92

Tot.

Badge

Name

WN

#

Period

208

12172

Guy Tessier

4

65

5/92–1/93

209

822

Freddie Aizen

4

66

3/90–3/91

210

13058

Brian Ellis

4

67

12/91–7/92

211

9863

Stanley Terrell

4

68

8/90–7/91

212

9221

Clayton Tarver

4

69

8/91–5/92

213

10850

Kim Swanson

4

70

3/91–7/91

214

836

Michael Enger-
ran

4

71

1/93–8/93

215

4168

Perry Suggs

4

72

5/91–8/91

216

10047

Ted Stone

4

73

6/91–3/92

217

12062

Rene’ Stewart

4

74

5/91–4/92

218

6943

Fabian P. Steib

4

75

12/92–2/93

219

4347

Raynell Fair

4

76

10/90–7/91

220

388

Robert St. Pe

4

77

2/92–10/92

221

3101

Pairlee Spur-
lock

4

78

6/93–12/93

222

3284

Keith Beasley

4

79

8/91–3/92

223

5108

Joseph Bel-
monte

4

80

8/93–12/93

224

4380

William Smith

4

81

2/93–10/93

225

9766

Jeffrey Favro

4

82

2/91–8/91

226

9765

Calvert Smith

4

83

5/91–6/91

227

4050

Denise Smart

4

84

10/91–3/92

228

4048

Dennis Smart

4

85

10/91–6/92

229

10459

Van Small

4

86

7/92–5/93

230

5408

Gregory
Simeon

4

87

10/90–8/91

231

700

Dave Feurtado

4

88

10/92–3/93

232

9696

Albert Shep-
pard

4

89

2/91–5/91

233

3149

Gene Shelby

4

90

6/90–3/91

234

2021

Eugene Sheard

4

91

1/93–6/93

235

3037

Michael Folse

4

92

1/22/91–
1/16/92

236

10632

Wayne M.
Shea

4

93

11/90–9/91

237

5283

Albert Francis

4

94

12/90–10/91

238

5185

Michael Belton

4

95

7/91–1/92
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1470

Tot.

Badge

Name

WN

#

Period
239 1315 Audra Scott 4 96 8/92–5/93

240

3238

Richard Schex-
nayder

4

97

12/91–1/92

241

496

David Savoie

4

98

10/92–1/93

242

3104

Karl Savoie

4

99

1/91–5/91

243

781

Glenn Sanders

4

100

1/93–12/93

244

3818

Anthony San-
chez

4

101

5/91–1/92

245

3123

Roger Sallinger

4

102

2/93–12/93

246

12012

Robert Ruiz

4

103

6/93–5/94

247

4498

Larry Rozier

4

104

9/90–8/91

248

560

Brenda Gary

4

105

9/91–6/92

249

3507

Corey Bou-
dreaux

4

106

2/93–12/93

250

4498

Larry Rozier

4

107

2/94–8/94

251

10764

James Rowan

4

108

11/90–6/91

252

1840

Octave Rouege

4

109

10/91–7/92

253

6948

Dale Roger

4

110

3/91–2/92

254

644

Joseph Rodri-
gue

4

111

5/90–1/91

255

11897

Michael Robin-
son

4

112

7/91–5/92

256

1337

Jonathan Gib-
son

4

113

12/93–6/94

257

150

Bruce Benson

4

114

5/90–3/91

258

1248

Adam Gibson

4

115

4/90–2/91

259

722

Ronald Allen

4

116

6/91–11/91

260

12144

Oliver Gill

4

117

7/91–12/91

261

4622

Keith Robert-
son

4

118

1/92–10/92

262

4532

Furness Girard

4

119

__/92–12/92

263

509

Kela Givens

4

120

6/92–7/92

264

9927

Carolyn Rat-
cliff

4

121

2/91–12/91

265

1733

Raymond Ra-
balais

4

122

6/91–1/92

266

3327

Lionel Billiot

4

123

5/92–7/92

267

2474

Chris Plaisance

4

124

12/28/90–
12/6/91

268

5951

Henry Pierre

4

125

8/90–7/91

269

919

William Per-
ki

4

126

12/90–9/91

Tot.

Badge

Name

WN

#

Period

240

3238

Richard Schex-
nayder

4

97

12/91–1/92

241

496

David Savoie

4

98

10/92–1/93

242

3104

Karl Savoie

4

99

1/91–5/91

243

781

Glenn Sanders

4

100

1/93–12/93

244

3818

Anthony San-
chez

4

101

5/91–1/92

245

3123

Roger Sallinger

4

102

2/93–12/93

246

12012

Robert Ruiz

4

103

6/93–5/94

247

4498

Larry Rozier

4

104

9/90–8/91

248

560

Brenda Gary

4

105

9/91–6/92

249

3507

Corey Bou-
dreaux

4

106

2/93–12/93

250

4498

Larry Rozier

4

107

2/94–8/94

251

10764

James Rowan

4

108

11/90–6/91

252

1840

Octave Rouege

4

109

10/91–7/92

253

6948

Dale Roger

4

110

3/91–2/92

254

644

Joseph Rodri-
gue

4

111

5/90–1/91

255

11897

Michael Robin-
son

4

112

7/91–5/92

256

1337

Jonathan Gib-
son

4

113

12/93–6/94

257

150

Bruce Benson

4

114

5/90–3/91

258

1248

Adam Gibson

4

115

4/90–2/91

259

722

Ronald Allen

4

116

6/91–11/91

260

12144

Oliver Gill

4

117

7/91–12/91

261

4622

Keith Robert-
son

4

118

1/92–10/92

262

4532

Furness Girard

4

119

__/92–12/92

263

509

Kela Givens

4

120

6/92–7/92

264

9927

Carolyn Rat-
cliff

4

121

2/91–12/91

265

1733

Raymond Ra-
balais

4

122

6/91–1/92

266

3327

Lionel Billiot

4

123

5/92–7/92

267

2474

Chris Plaisance

4

124

12/28/90–
12/6/91

268

5951

Henry Pierre

4

125

8/90–7/91

269

919

4

126

12/90–9/91
AVONDALE INDUSTRIES

1471

Tot.

Badge

Name

WN

#

Period
kins

270

1009

William Grady

4

127

11/90–1/91

271

9622

Harden Palmer

4

128

2/90–6/90

272

4590

Roman Nunez

4

129

1/92–5/92

273

2333

Eric Gray

4

130

2/94–6/94

274

477

Conrad Noel

4

131

4/90–3/91

275

4800

Dwayne M.
Green

4

132

4/92–3/93

276

3664

Edmond Nodd

4

133

3/90–9/90

277

5365

Daniel Noah

4

134

4/94–12/94

278

2818

Dwayne Nich-
olson

4

135

12/90–10/91

279

4304

Charles
Greenwood

4

136

12/92–10/93

280

2818

Dwayne Nich-
olson

4

137

12/91–9/92

281

4255

Doris Najolia

4

138

6/93–2/94

282

9749

Allison D.
Griffin

4

139

9/91–7/92

283

4929

Alice Myles

4

140

11/91–1/92

284

915

Herion Murphy

4

141

7/92–12/92

285

11365

Johnny Mouton

4

142

8/91–4/92

286

2948

Leonard Mor-
gan

4

143

9/90–4/91

287

9871

Ronald Gross

4

144

9/91–12/91

288

228

Shelia Gross

4

145

10/91–9/92

289

11074

Calvin Grows

4

146

12/92–4/93

290

2948

Leonard Mor-
gan

4

147

6/92–5/93

291

1507

Kenneth Moore

4

148

8/90–6/91

292

3498

David Guillard

4

149

12/90–3/91

293

9718

Silas L. Guil-
lory

4

150

8/93–4/94

294

1657

Kenneth Guil-
lory

4

151

7/91–11/91

295

6973

Sidney Mont-
gomery

4

152

9/90–4/91

296

12999

Joseph Mire

4

153

4/91–11/91

297

404

Ronald Miller

4

154

1/93–12/93

298

1854

John Handy

4

155

10/91–12/91

299

3537

Rickie Miles

4

156

11/91–7/92

Tot.

Badge

Name

WN

#

Period

270

1009

William Grady

4

127

11/90–1/91

271

9622

Harden Palmer

4

128

2/90–6/90

272

4590

Roman Nunez

4

129

1/92–5/92

273

2333

Eric Gray

4

130

2/94–6/94

274

477

Conrad Noel

4

131

4/90–3/91

275

4800

Dwayne M.
Green

4

132

4/92–3/93

276

3664

Edmond Nodd

4

133

3/90–9/90

277

5365

Daniel Noah

4

134

4/94–12/94

278

2818

Dwayne Nich-
olson

4

135

12/90–10/91

279

4304

Charles
Greenwood

4

136

12/92–10/93

280

2818

Dwayne Nich-
olson

4

137

12/91–9/92

281

4255

Doris Najolia

4

138

6/93–2/94

282

9749

Allison D.
Griffin

4

139

9/91–7/92

283

4929

Alice Myles

4

140

11/91–1/92

284

915

Herion Murphy

4

141

7/92–12/92

285

11365

Johnny Mouton

4

142

8/91–4/92

286

2948

Leonard Mor-
gan

4

143

9/90–4/91

287

9871

Ronald Gross

4

144

9/91–12/91

288

228

Shelia Gross

4

145

10/91–9/92

289

11074

Calvin Grows

4

146

12/92–4/93

290

2948

Leonard Mor-
gan

4

147

6/92–5/93

291

1507

Kenneth Moore

4

148

8/90–6/91

292

3498

David Guillard

4

149

12/90–3/91

293

9718

Silas L. Guil-
lory

4

150

8/93–4/94

294

1657

Kenneth Guil-
lory

4

151

7/91–11/91

295

6973

Sidney Mont-
gomery

4

152

9/90–4/91

296

12999

Joseph Mire

4

153

4/91–11/91

297

404

Ronald Miller

4

154

1/93–12/93

298

1854

John Handy

4

155

10/91–12/91

299

3537

Rickie Miles

4

156

11/91–7/92
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1472

Tot.

Badge

Name

WN

#

Period

300

3215

Steven Menard

4

157

4/93–7/93

301

968

Arnold McCal-
lon

4

158

6/92–9/92

302

858

Ronald Math-
erne

4

159

3/90–10/90

303

2477

Brian Marziale

4

160

7/90–2/91

304

12908

Frank Booker

4

161

2/91–12/91

305

1463

Dedrick Mar-
shall

4

162

2/94–8/94

306

1195

Gregory Ma-
rina

4

163

12/92–6/93

307

2198

Robert Mal-
colm

4

164

4/91–11/91

308

4351

Jason Maderios

4

165

11/91–7/92

309

5295

Butch Lott

4

166

3/90–9/90

310

4850

Carlos Lewis

4

167

3/93–6/93

311

2493

Aretha Lewis

4

168

10/92–10/93

312

713

James Hartsuff

4

169

8/93–3/94

313

548

Walter Lewis

4

170

__/92–__/92

314

2062

Carl Hawkins

4

171

9/5/9191–
9//492

315

10670

Charles Lee

4

172

1/92–8/92

316

2122

Carl LeBlanc

4

173

6/91–3/92

317

6966

Dechauon
Lavigne

4

174

7/8/91–
7/8/92

318

12424

Frankie Heims

4

175

2/92–10/92

319

3334

Gregory Lang-
ley

4

176

5/90–11/90

320

2983

Gustavo Hen-
randez

4

177

7/91–1/92

321

5117

Perry Landry

4

178

1/92–5/92

322

81

Emile Landry

4

179

5/92–2/93

323

4536

Ronald Kruse

4

180

11/91–6/92

324

564

Charles Herbert

4

181

7/91–5/92

325

1886

Derrick Kirton

4

182

10/93–3/94

326

546

Jay Herpin

4

183

10/91–3/92

327

1309

Matthew King

4

184

3/90–3/91

328

5838

Idalberto
Juarez

4

185

6/91–1/92

329

11032

Carl Hilaire

4

186

4/91–11/91

Tot.

Badge

Name

WN

#

Period
330 2492 Michael Joseph 4 187 8/92–3/93

331

1409

Marie Joseph

4

188

8/92–6/93

332

3842

William Jones

4

189

8/91–5/92

333

4790

Jacob Hodges

4

190

12/91–5/92

334

2956

Daryl Jones

4

191

7/92–9/92

335

1885

Jennifer Jones

4

192

1/92–11/92

336

13791

Henry Johnson

4

193

7/93–6/94

337

2579

Charles John-
son

4

194

7/93–11/93

338

2997

Carey Johnson

4

195

10/92–9/93

339

2393

Gary Johnson

4

196

6/91–12/91

340

2878

Dexter Johnson

4

197

10/90–1/91

341

471

Dennis Janatik

4

198

2/91–10/91

342

2885

Ronald Jackson

4

199

1/92–12/92

343

3017

Ervin Jacks

4

200

7/91–6/92

344

2715

Earl Irving

4

201

6/90–4/91

345

2017

Alvester
Hughes

4

202

3/93–9/93

346

2968

Ryan Hudson

4

203

1/94–6/94

347

522

George Hop-
kins

4

204

6/91–1/92

348

5901

Dale Horn

4

205

7/27/90–
7/15/91

349

3445

Abby Howard

4

206

4/93–9/93

350

3316

Joseph Howard

4

207

10/91–1/92

351

9928

Leon Howard

4

208

6/94–10/94

352

1225

Ivan Houston

3

1

11/91–1/92

353

6849

James Houston

3

2

1/91–7/91

354

7251

Gloria Hornes

3

3

9/93–6/94

355

11973

Tommy How-
ard

3

4

__/91–__/91

356

265

Allen Horn

3

5

1/94–8/94

357

896

Joe Howard

3

6

10/93–9/94

358

1814

Carl Cooper

3

7

12/90–9/91

359

4892

Helen M. Hud-
son

3

8

3/92–1/93

360

4746

Woodrow
Honroe

3

9

6/92–5/93

361

2968

Ryan Hudson

3

10

11/92–7/93

AVONDALE INDUSTRIES

1473

Tot.

Badge

Name

WN

#

Period
362 1814 Carl Cooper 3 11 9/93–2/94

363

4666

Jeffrey Huff

3

12

9/92–4/93

364

2017

Alvester
Hughes

3

13

7/91–12/91

365

4746

Woodrow
Honroe

3

14

__/91–9/91

366

10606

William Bailey

3

15

7/91–6/92

367

1810

Bernadette
Hughes

3

16

10/91–3/92

368

6877

Charles Hunt

3

17

2/92–12/92

369

7106

Mark Condrey

3

18

1/91–8/91

370

10882

Jeffery Inmon

3

19

2/90–9/90

371

3989

Lonnie Holt

3

20

1/91–5/91

372

2006

Jerome Isom

3

21

1/92–7/92

373

2006

Jerome Isom

3

22

4/93–1/94

374

223

Carey Holmes

3

23

12/93–9/94

375

1092

Michael Bor-
den

3

24

10/93–2/94

376

172

Frank Collins

3

25

7/90–5/91

377

2885

Ronald Jackson

3

26

2/93–4/93

378

2786

Bennie Jackson

3

27

5/91–4/92

379

10758

Darren K.
Boothe

3

28

3/93–1/94

380

902

Lawrence
Jacobs

3

29

7/92–10/92

381

770

Roy Bourgeois

3

30

4/91–12/91

382

9660

Forres Collins

3

31

9/91–4/92

383

11720

Waynell Jami-
son

3

32

2/90–__/90

384

4914

Eric C. Holmes

3

33

7/91–10/91

385

5633

Vincent Cleve-
land

3

34

2/92–10/92

386

4141

Stanley Jenkins

3

35

9/93–11/93

387

5109

Russell
Jennings

3

36

__/92–11/92

388

2268

Eddie Johnson

3

37

3/91–9/91

389

4027

Robert Johnson

3

38

4/93–2/94

390

4914

Eric C. Holmes

3

39

3/90–7/90

391

1092

Michael Bor-
den

3

40

1/92–7/92

392

4945

Christopher
J h

3

41

5/92–2/93

Tot.

Badge

Name

WN

#

Period

363

4666

Jeffrey Huff

3

12

9/92–4/93

364

2017

Alvester
Hughes

3

13

7/91–12/91

365

4746

Woodrow
Honroe

3

14

__/91–9/91

366

10606

William Bailey

3

15

7/91–6/92

367

1810

Bernadette
Hughes

3

16

10/91–3/92

368

6877

Charles Hunt

3

17

2/92–12/92

369

7106

Mark Condrey

3

18

1/91–8/91

370

10882

Jeffery Inmon

3

19

2/90–9/90

371

3989

Lonnie Holt

3

20

1/91–5/91

372

2006

Jerome Isom

3

21

1/92–7/92

373

2006

Jerome Isom

3

22

4/93–1/94

374

223

Carey Holmes

3

23

12/93–9/94

375

1092

Michael Bor-
den

3

24

10/93–2/94

376

172

Frank Collins

3

25

7/90–5/91

377

2885

Ronald Jackson

3

26

2/93–4/93

378

2786

Bennie Jackson

3

27

5/91–4/92

379

10758

Darren K.
Boothe

3

28

3/93–1/94

380

902

Lawrence
Jacobs

3

29

7/92–10/92

381

770

Roy Bourgeois

3

30

4/91–12/91

382

9660

Forres Collins

3

31

9/91–4/92

383

11720

Waynell Jami-
son

3

32

2/90–__/90

384

4914

Eric C. Holmes

3

33

7/91–10/91

385

5633

Vincent Cleve-
land

3

34

2/92–10/92

386

4141

Stanley Jenkins

3

35

9/93–11/93

387

5109

Russell
Jennings

3

36

__/92–11/92

388

2268

Eddie Johnson

3

37

3/91–9/91

389

4027

Robert Johnson

3

38

4/93–2/94

390

4914

Eric C. Holmes

3

39

3/90–7/90

391

1092

Michael Bor-
den

3

40

1/92–7/92

392

4945

3

41

5/92–2/93
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1474

Tot.

Badge

Name

WN

#

Period
Johnson

393

4291

Gertrude John-
son

3

42

12/91–1/92

394

5873

Michael Clark

3

43

2/93–1/94

395

401

Carey Holmes

3

44

6/91–1/92

396

4062

Cherlyn
Holmes

3

45

7/92–8/92

397

10143

Clarence D.
Johnson

3

46

1/94–6/94

398

5576

Melissa John-
son

3

47

4/90–10/90

399

1977

Sebrin Bour-
geois

3

48

10/92–1/93

400

1095

Billy Baldridge

3

49

2/92–2/92

401

12440

Rudolph John-
son

3

50

4/91–12/91

402

5528

Otis Jones

3

51

11/92–12/92

403

435

Wilbert Hogan

3

52

6/91–4/92

404

182

Marlon Cox

3

53

9/92–1/93

405

563

Armand Jones

3

54

5/91–3/92

406

9908

Earl Jones

3

55

5/21/90–
5/10/91

407

9615

Joel Hobbie

3

56

7/91–7/92

408

12214

Gary Jones

3

57

11/92–7/93

409

9094

Earl Jones

3

58

1/91–3/91

410

2155

Warren Clark

3

59

9/91–9/92

411

219

Eldridge Jones

3

60

1/93–1/93

412

11937/
10112

Clarence Jones

3

61

7/90–1/91

413

3264

Juan Jones

3

62

5/90–4/91

414

6371

David Banks

3

63

9/91–7/92

415

3226

Allan Jordan

3

64

8/91–6/92

416

3644

Louis Cincore

3

65

3/93–6/93

417

1857

Eddie Hill

3

66

12/92–3/93

418

4877

David Henry
Jr.

3

67

12/90–4/91

419

11032

Carl Hilaire

3

68

9/90–10/90

420

1169

Mark Jules

3

69

1/94–3/94

421

1867

Archille Julian

3

70

12/91–1/92

422

757

David Jupiter

3

71

10/91–5/92

Tot.

Badge

Name

WN

#

Period

393

4291

Gertrude John-
son

3

42

12/91–1/92

394

5873

Michael Clark

3

43

2/93–1/94

395

401

Carey Holmes

3

44

6/91–1/92

396

4062

Cherlyn
Holmes

3

45

7/92–8/92

397

10143

Clarence D.
Johnson

3

46

1/94–6/94

398

5576

Melissa John-
son

3

47

4/90–10/90

399

1977

Sebrin Bour-
geois

3

48

10/92–1/93

400

1095

Billy Baldridge

3

49

2/92–2/92

401

12440

Rudolph John-
son

3

50

4/91–12/91

402

5528

Otis Jones

3

51

11/92–12/92

403

435

Wilbert Hogan

3

52

6/91–4/92

404

182

Marlon Cox

3

53

9/92–1/93

405

563

Armand Jones

3

54

5/91–3/92

406

9908

Earl Jones

3

55

5/21/90–
5/10/91

407

9615

Joel Hobbie

3

56

7/91–7/92

408

12214

Gary Jones

3

57

11/92–7/93

409

9094

Earl Jones

3

58

1/91–3/91

410

2155

Warren Clark

3

59

9/91–9/92

411

219

Eldridge Jones

3

60

1/93–1/93

412

11937/
10112

Clarence Jones

3

61

7/90–1/91

413

3264

Juan Jones

3

62

5/90–4/91

414

6371

David Banks

3

63

9/91–7/92

415

3226

Allan Jordan

3

64

8/91–6/92

416

3644

Louis Cincore

3

65

3/93–6/93

417

1857

Eddie Hill

3

66

12/92–3/93

418

4877

David Henry
Jr.

3

67

12/90–4/91

419

11032

Carl Hilaire

3

68

9/90–10/90

420

1169

Mark Jules

3

69

1/94–3/94

421

1867

Archille Julian

3

70

12/91–1/92

422

757

David Jupiter

3

71

10/91–5/92
AVONDALE INDUSTRIES

1475

Tot.

Badge

Name

WN

#

Period
423 2870 Otis Jupiter 3 72 11/90–8/91

424

2856

Dennis Kees

3

73

__/91–9/91

425

3997

Warren Kelly

3

74

10/91–5/92

426

5072

Michael King

3

75

12/91–3/92

427

5026

Doral Hester

3

76

5/92–6/92

428

3502

Arnold Heron

3

77

6/94–9/94

429

2809

Dedric Knight

3

78

6/91–2/92

430

2907

James Knight-
shead

3

79

2/90–9/90

431

12714

Gary Charles

3

80

2/92–12/92

432

12055

Wayne Carter

3

81

2/90–9/90

433

4447

Marion Henry

3

82

5/93–12/93

434

10403

Gregory Henry

3

83

4/91–7/91

435

9885

Joseph Landry

3

84

3/91–1/92

436

4887

Allen Landry

3

85

1/92–12/92

437

1984

Eddie Landry

3

86

10/21/91–
10/5/92

438

12411

Carlos Henri-
quez

3

87

12/91–5/92

439

4724

Leroy Landry

3

88

11/90–7/91

440

3832

Herbert Hen-
derson

3

89

1/92–6/92

441

6966

Dechauon
Lavigne

3

90

2/90–1/91

442

5804

Ivory Haynes

3

91

1/91–10/91

443

5674

David LeBlanc

3

92

3/91–9/91

444

1858

Robert Hayes

3

93

5/90–10/90

445

7045

Jesse J. Le-
Bouef

3

94

12/92–12/93

446

4227

Randy Haw-
kins

3

95

12/91–1/92

447

4295

Leo Leger

3

96

5/90–12/90

448

10992

Ephriam Avila

3

97

11/90–10/91

449

11091

Taris Lemon

3

98

12/91–6/92

450

4222

James Hawkins

3

99

12/91–2/92

451

5444

Linda Lewis

3

100

12/93–2/94

452

9215

Kerry Lewis

3

101

11/91–9/92

453

9215

Kerry Lewis

3

102

11/90–10/91

454

4861

Vernon Lewis

3

103

2/92–6/92

Tot.

Badge

Name

WN

#

Period

424

2856

Dennis Kees

3

73

__/91–9/91

425

3997

Warren Kelly

3

74

10/91–5/92

426

5072

Michael King

3

75

12/91–3/92

427

5026

Doral Hester

3

76

5/92–6/92

428

3502

Arnold Heron

3

77

6/94–9/94

429

2809

Dedric Knight

3

78

6/91–2/92

430

2907

James Knight-
shead

3

79

2/90–9/90

431

12714

Gary Charles

3

80

2/92–12/92

432

12055

Wayne Carter

3

81

2/90–9/90

433

4447

Marion Henry

3

82

5/93–12/93

434

10403

Gregory Henry

3

83

4/91–7/91

435

9885

Joseph Landry

3

84

3/91–1/92

436

4887

Allen Landry

3

85

1/92–12/92

437

1984

Eddie Landry

3

86

10/21/91–
10/5/92

438

12411

Carlos Henri-
quez

3

87

12/91–5/92

439

4724

Leroy Landry

3

88

11/90–7/91

440

3832

Herbert Hen-
derson

3

89

1/92–6/92

441

6966

Dechauon
Lavigne

3

90

2/90–1/91

442

5804

Ivory Haynes

3

91

1/91–10/91

443

5674

David LeBlanc

3

92

3/91–9/91

444

1858

Robert Hayes

3

93

5/90–10/90

445

7045

Jesse J. Le-
Bouef

3

94

12/92–12/93

446

4227

Randy Haw-
kins

3

95

12/91–1/92

447

4295

Leo Leger

3

96

5/90–12/90

448

10992

Ephriam Avila

3

97

11/90–10/91

449

11091

Taris Lemon

3

98

12/91–6/92

450

4222

James Hawkins

3

99

12/91–2/92

451

5444

Linda Lewis

3

100

12/93–2/94

452

9215

Kerry Lewis

3

101

11/91–9/92

453

9215

Kerry Lewis

3

102

11/90–10/91

454

4861

Vernon Lewis

3

103

2/92–6/92
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1476

Tot.

Badge

Name

WN

#

Period
455 713 James Hartsuff 3 104 8/92–7/93

456

11222

Milton Harry

3

105

12/18/90–
12/4/91

457

9339

Sammie Lewis

3

106

2/91–6/91

458

9491

Bruce Lightell

3

107

12/93–9/94

459

9491

Bruce Lightell

3

108

9/90–8/91

460

6810

Howard Lip-
pincott

3

109

5/90–12/90

461

1437

Aubert Craig

3

110

1/90–6/90

462

12481

Eugene
Lochbrunner

3

111

1/93–8/93

463

10124

Betty London

3

112

7/90–8/90

464

5295

Butch Lott

3

113

2/93–4/93

465

10458

Mark D. Harri-
son

3

114

8/91–6/92

466

12662

Sterling Carter

3

115

6/92–4/93

467

3137

Daryl Louviere

3

116

12/93–3/94

468

5421

William Lundy

3

117

10/91–1/92

469

3302

James Lyons

3

118

11/90–10/91

470

386

Keith Madere

3

119

2/92–1/93

471

5942

Douglas Crain

3

120

3/90–7/90

472

652

Matthew
Magee

3

121

11/91–4/92

473

2185

Frank Magee

3

122

3/94–7/94

474

1692

Donald Magee

3

123

12/91–12/92

475

1542

Fleming Magee

3

124

7/92–3/93

476

12281

Donald Harris

3

125

9/92–11/92

477

12055

Wayne Carter

3

126

4/91–4/91

478

828

Kerry Creason

3

127

1/91–2/91

479

3962

Steven Marque

3

128

6/90–5/91

480

1044

Joseph Carter

3

129

6/92–2/93

481

270

Dwayne Harris

3

130

7/94–10/94

482

2745

Danny Harris

3

131

8/90–5/91

483

9763

Gale J. Blanch-
ard

3

132

10/90–9/91

484

298

Sidney Martin

3

133

5/91–10/91

485

315

Oscar Martinez

3

134

2/92–10/92

486

3821

Douglas Harris

3

135

5/90–8/90

Harold Math-

Tot.

Badge

Name

WN

#

Period

456

11222

Milton Harry

3

105

12/18/90–
12/4/91

457

9339

Sammie Lewis

3

106

2/91–6/91

458

9491

Bruce Lightell

3

107

12/93–9/94

459

9491

Bruce Lightell

3

108

9/90–8/91

460

6810

Howard Lip-
pincott

3

109

5/90–12/90

461

1437

Aubert Craig

3

110

1/90–6/90

462

12481

Eugene
Lochbrunner

3

111

1/93–8/93

463

10124

Betty London

3

112

7/90–8/90

464

5295

Butch Lott

3

113

2/93–4/93

465

10458

Mark D. Harri-
son

3

114

8/91–6/92

466

12662

Sterling Carter

3

115

6/92–4/93

467

3137

Daryl Louviere

3

116

12/93–3/94

468

5421

William Lundy

3

117

10/91–1/92

469

3302

James Lyons

3

118

11/90–10/91

470

386

Keith Madere

3

119

2/92–1/93

471

5942

Douglas Crain

3

120

3/90–7/90

472

652

Matthew
Magee

3

121

11/91–4/92

473

2185

Frank Magee

3

122

3/94–7/94

474

1692

Donald Magee

3

123

12/91–12/92

475

1542

Fleming Magee

3

124

7/92–3/93

476

12281

Donald Harris

3

125

9/92–11/92

477

12055

Wayne Carter

3

126

4/91–4/91

478

828

Kerry Creason

3

127

1/91–2/91

479

3962

Steven Marque

3

128

6/90–5/91

480

1044

Joseph Carter

3

129

6/92–2/93

481

270

Dwayne Harris

3

130

7/94–10/94

482

2745

Danny Harris

3

131

8/90–5/91

483

9763

Gale J. Blanch-
ard

3

132

10/90–9/91

484

298

Sidney Martin

3

133

5/91–10/91

485

315

Oscar Martinez

3

134

2/92–10/92

486

3821

Douglas Harris

3

135

5/90–8/90
AVONDALE INDUSTRIES

1477

Tot.

Badge

Name

WN

#

Period
487 3703 erne 3 136 __/91–11/91

488

2571

Jody Matherne

3

137

__/90–8/90

489

11083

August Math-
erne

3

138

5/91–3/92

490

828

Kerry Creason

3

139

2/94–12/94

491

2629

John Mathurin

3

140

12/91–7/92

492

2629

John Mathurin

3

141

10/90–8/91

493

11159

Will McCad-
ney

3

142

2/90–12/90

494

357

Kevin Har-
grove

3

143

6/92–5/93

495

1156

Paul McCloud

3

144

10/91–3/92

496

11282

Larry McClure

3

145

1/91–8/91

497

5527

Willie Arso

3

146

4/92–12/92

498

4649

Tyrone
McGowan

3

147

6/92–10/92

499

1798

Ronald Blair

3

148

1/91–10/91

500

3187

Christopher
Carley

3

149

11/92–11/92

501

4951

Preston Hardy

3

150

6/12/90–
6/4/91

502

1038

Glenn Hanegan

3

151

7/91–5/92

503

4913

Troy Hamrick

3

152

6/90–12/90

504

9946

George Miller

3

153

__/91–8/91

505

5225

Michael C.
Halphen

3

154

9/91–12/91

506

10899

Robert Mitchell

3

155

4/92–10/92

507

11265

Nelson
Mitchell

3

156

7/91–8/91

508

5544

Frederick
Mitchell

3

157

8/91–7/92

509

9718

Silas L. Guil-
lory

3

158

7/91–4/92

510

12958

Willie Mont-
gomery

3

159

4/91–5/92

511

1507

Kenneth Moore

3

160

10/91–5/92

512

9069

Frank Moran

3

161

7/94–9/94

513

5220

Thomas Guidry

3

162

4/91–1/92

514

9206

Ernest J. Borne

3

163

11/21/91–
11/20/92

515

10209

James Cantrelle

3

164

9/92–1/93

516

10056

Kevin Morvant

3

165

2/91–1/92

Tot.

Badge

Name

WN

#

Period

488

2571

Jody Matherne

3

137

__/90–8/90

489

11083

August Math-
erne

3

138

5/91–3/92

490

828

Kerry Creason

3

139

2/94–12/94

491

2629

John Mathurin

3

140

12/91–7/92

492

2629

John Mathurin

3

141

10/90–8/91

493

11159

Will McCad-
ney

3

142

2/90–12/90

494

357

Kevin Har-
grove

3

143

6/92–5/93

495

1156

Paul McCloud

3

144

10/91–3/92

496

11282

Larry McClure

3

145

1/91–8/91

497

5527

Willie Arso

3

146

4/92–12/92

498

4649

Tyrone
McGowan

3

147

6/92–10/92

499

1798

Ronald Blair

3

148

1/91–10/91

500

3187

Christopher
Carley

3

149

11/92–11/92

501

4951

Preston Hardy

3

150

6/12/90–
6/4/91

502

1038

Glenn Hanegan

3

151

7/91–5/92

503

4913

Troy Hamrick

3

152

6/90–12/90

504

9946

George Miller

3

153

__/91–8/91

505

5225

Michael C.
Halphen

3

154

9/91–12/91

506

10899

Robert Mitchell

3

155

4/92–10/92

507

11265

Nelson
Mitchell

3

156

7/91–8/91

508

5544

Frederick
Mitchell

3

157

8/91–7/92

509

9718

Silas L. Guil-
lory

3

158

7/91–4/92

510

12958

Willie Mont-
gomery

3

159

4/91–5/92

511

1507

Kenneth Moore

3

160

10/91–5/92

512

9069

Frank Moran

3

161

7/94–9/94

513

5220

Thomas Guidry

3

162

4/91–1/92

514

9206

Ernest J. Borne

3

163

11/21/91–
11/20/92

515

10209

James Cantrelle

3

164

9/92–1/93

516

10056

Kevin Morvant

3

165

2/91–1/92
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1478

Tot.

Badge

Name

WN

#

Period

517

2631

Sharee Motley

3

166

9/91–3/92

518

12985

Homer Boswell

3

167

5/91–1/92

519

3437

Richard Crespo

3

168

8/91–6/92

520

3521

Russell Murry

3

169

8/90–4/91

521

3958

Nolan Crochet

3

170

5/91–9/91

522

12015

Robert Griffin

3

171

8/91–1/92

523

4299

Darren Nance

3

172

3/90–7/90

524

794

Kenny Arm-
strong

3

173

2/90–7/90

525

11512

Wayne A.
Naquin

3

174

1/91–10/91

526

5020

Joseph C. Nar-
cisse

3

175

3/90–10/90

527

5673

Troy Newby

3

176

12/92–7/93

528

11377

Tran Nguyen

3

177

1/91–7/91

529

2963

Charles Greg-
ory

3

178

1/93–1/93

530

4304

Charles
Greenwood

3

179

11/13/90–
11/1/91

531

5247

Elaine Green

3

180

3/94–8/94

532

5166

Mack Green

3

181

__/94–10/94

533

9645

Joseph Noel

3

182

1/91–8/91

534

1798

Ronald Blair

3

183

10/92–1/93

535

9913

William Green

3

184

1/93–5/93

536

1144

Lloyd Grant

3

185

7/92–7/92

537

10122

Irwin J. Ock-
man

3

186

1/93–9/93

538

2099

Robert L.
Olinde

3

187

9/94–12/94

539

9161

Anthony J.
Onebene

3

188

7/92–2/93

540

9161

Anthony J.
Onebene

3

189

6/91–11/91

541

9306

Alexander
Antonio

3

190

2/93–12/93

542

2620

Solomon Ott

3

191

__/91–__/91

543

2917

Larry Overton

3

192

1/90–5/90

544

9622

Harden Palmer

3

193

3/91–12/92

545

1318

Cynthia Crosby

3

194

7/92–12/92

546

6879

Calvin G.
Parker

3

195

8/92–8/93

Tot.

Badge

Name

WN

#

Period

547

1589

Kodome Can-
non

3

196

5/91–1/92

548

5496

Durand Camp-
bell

3

197

1/93–7/93

549

10118

Isadore Ancar

3

198

8/91–1/92

550

10672

Kenneth Patter-
son

3

199

2/94–11/94

551

2458

Madeleine Paul

3

200

12/91–4/92

552

5496

Durand Camp-
bell

3

201

6/94–8/94

553

1956

Manuel Pena-
randa

3

202

3/93–2/94

554

10332

Roy L. Bing-
ham

3

203

12/90–8/91

555

3368

Marty Bour-
geois

3

204

3/90–12/90

556

922

Isaac Gordon

3

205

3/90–10/90

557

7086

George Perque

3

206

7/94–11/94

558

3045

Michael Perry

3

207

6/91–4/92

559

2787

Carolyn Peters

3

208

12/90–10/91

560

12554

James Peters

3

209

6/91–4/92

561

9104

Errol Phillips

3

210

1/93–3/93

562

2143

Matthew Phoe-
nix

3

211

5/93–2/94

563

12649

Allen Pichon

3

212

1/92–12/92

564

5378

James Cagelosi

3

213

10/26/92–
10/26/93

565

3053

Tony Bradley

3

214

8/91–6/92

566

1721

Ruben Gon-
zalez

3

215

9/91–12/91

567

11615

Douglas Pierre

3

216

9/90–1/91

568

2362

Farren Gomez

3

217

9/92–10/92

569

4660

Marsha Plai-
sance

3

218

1/92–8/92

570

6939

Stephen R.
Plessy

3

219

3/26/91–
3/11/92

571

4307

Samuel Goff

3

220

9/91–10/91

572

2161

Willest Glover

3

221

9/92–4/93

573

4632

Edgar Rabel

3

222

5/92–2/93

574

4632

Edgar Rabel

3

223

3/91–8/91

575

5266

Steve R. Ram-
sey

3

224

4/91–2/92
AVONDALE INDUSTRIES

1479

Tot.

Badge

Name

WN

#

Period

576

1534

Harold Randle

3

225

6/91–12/91

577

1534

Harold Randle

3

226

6/92–11/92

578

1069

Denise Butler

3

227

11/92–2/93

579

2881

Darren Gloster

3

228

__/20/92–
1/13/93

580

9927

Carolyn Rat-
cliff

3

229

8/93–2/94

581

5488

Frank Butler

3

230

5/93–12/93

582

4267

Johnnie Burton

3

231

12/91–11/92

583

1685

Romarus
Reaves

3

232

9/92–10/92

584

2890

Murray Reed

3

233

4/90–1/91

585

2991

Walter Reed

3

234

1/90–5/90

586

11284

Willis Reed

3

235

11/92–7/93

587

11284

Willis Reed

3

236

7/91–1/92

588

9714

Joseph Rhyans

3

237

3/91–8/91

589

920

Fabien
Richardson

3

238

5/93–3/94

590

11870

Bradford Rie-
bow

3

239

3/90–12/90

591

5779

Douglas Riggs

3

240

7/90–6/91

592

5049

Larry Riles

3

241

9/91–8/92

593

3003

Kathleen Del
Rio

3

242

12/92–4/93

594

3007

Raymond
Burks

3

243

8/92–4/93

595

349

Andy Bergeron

3

244

5/92–4/93

596

1164

Carl Robertson

3

245

12/92–3/93

597

4598

Keith Gillespie

3

246

4/90–7/90

598

5393

Alvin J. Ro-
bichaux

3

247

5/90–5/90

599

12817

James Crutch-
field

3

248

3/90–6/90

600

11343

George Gibson

3

249

11/90–9/91

601

9721

Larry Robinson

3

250

11/90–1/91

602

12458

Elray Bou-
dreaux

3

251

4/90–3/91

603

9195

Steven Rodgers

3

252

3/91–3/92

604

11342

Vaughn Rod-
gers

3

253

8/91–12/91

605

3570

Scott Ghorace

3

254

9/90–4/91

Tot.

Badge

Name

WN

#

Period

606

10114

Gary Rodrigue

3

255

9/90–1/91

607

1780

Arthur Roering

3

256

8/88–3/89

608

1780

Arthur Roering

3

257

9/90–11/90

609

11733

Luiz A. Cruz

3

258

10/23/91–
10/20/92

610

1460

Donald Ro-
mero

3

259

6/91–9/91

611

2618

Carolyn Ben-
nett

3

260

11/93–5/94

612

2236

Lumas Rose

3

261

9/90–8/91

613

3417

Jerome Cum-
mings

3

262

8/91–9/91

614

4122

Alvin Roussell

3

263

9/92–1/93

615

1554

Victor Wayne
Roussell

3

264

12/93–12/94

616

4122

Alvin Roussell

3

265

10/91–1/92

617

2426

Harold Gas-
senberger

3

266

3/90–12/90

618

1

Michael Rowel

3

267

__/93–9/93

619

560

Brenda Gary

3

268

7/90–10/90

620

71

Rene Rubi

3

269

9/90–8/91

621

3117

Michael Gard-
ner

3

270

7/91–4/92

622

9229

Richard L.
Rushing

3

271

7/90–3/91

623

5974

Chester Van
Buren

3

272

1/90–11/90

624

11515

Earl P. Ryan

3

273

5/93–8/93

625

11515

Earl P. Ryan

3

274

3/94–__/94

626

5748

Daniel Saenz

3

275

2/92–3/92

627

5927

Wade Ganier

3

276

9/90–2/91

628

17759

William M.
Gallo

3

277

8/90–5/91

629

195

Robert Sanders

3

278

1/92–8/92

630

1426

Averil Sanders

3

279

9/92–8/93

631

1441

Raymond
Bunch

3

280

6/92–7/92

632

5640

Charles Gaines

3

281

7/91–3/92

633

4867

Jerry Barnes

3

282

2/92–10/92

634

5482

John All

3

283

1/91–9/91

635

9851

Frank Savoie

3

284

12/93–8/94
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1480

Tot.

Badge

Name

WN

#

Period

636

2674

Kenneth Frank-
lin

3

285

1/93–5/93

637

12568

Terence Czop

3

286

6/94–10/94

638

1779

Byron Saxton

3

287

3/93–7/93

639

3308

Mitchell
Schebb

3

288

2/91–8/91

640

5957

Harry Schex-
nayder

3

289

6/90–5/91

641

5957

Harry Schex-
nayder

3

290

8/91–4/92

642

1365

Emanuel Fran-
cis

3

291

3/94–10/94

643

5718

Susan
Scioneaux

3

292

9/90–1/91

644

12303

Edgar Brum-
field

3

293

2/91–9/91

645

12568

Terence Czop

3

294

2/91–8/91

646

2806

Roosevelt Scott

3

295

8/91–7/92

647

10452

Calvin Francis

3

296

1/91–11/91

648

9552

Vernie C. For-
est

3

297

4/91–6/91

649

12568

Terence Czop

3

298

1/93–9/93

650

2021

Eugene Sheard

3

299

1/91–7/91

651

5482

John All

3

300

2/92–6/92

652

889

Sherman Flem-
ing

3

301

__/91–12/91

653

183

Carl Shelton

3

302

7/90–4/91

654

13292

Charles Flem-
ing

3

303

3/92–3/93

655

12438

William
Shroyer

3

304

9/93–6/94

656

12438

William
Shroyer

3

305

12/90–7/91

657

4840

Anthony Sil-
bernagel

3

306

1/90–8/90

658

5997

Dwight Da-
mond

3

307

2/92–6/92

659

2043

Jeffery Sim-
mons

3

308

11/90–9/91

660

2042

Darlene Single-
ton

3

309

2/91–8/91

661

2042

Darlene Single-
ton

3

310

7/92–1/93

662

4436

Albert Brown

3

311

3/93–8/93

Tot.

Badge

Name

WN

#

Period
663 10459 Van Small 3 312 5/91–12/91

664

3125

Delrick Darby

3

313

2/91–1/92

665

891

Michael Bou-
dreaux

3

314

9/91–9/92

666

6836

Ramon A.
Felix

3

315

__/91–12/91

667

9765

Calvert Smith

3

316

1/90–7/90

668

9604

Anthony Davis

3

317

2/94–2/94

669

4380

William Smith

3

318

10/90–5/91

670

10255

Carl Favorite

3

319

9/92–2/93

671

1290

Kahalid Fard

3

320

3/93–8/93

672

1259

Reynard Smith

3

321

9/90–6/91

673

2473

Nicholas Smith

3

322

1/92–10/92

674

15850

Michael Fal-
gout

3

323

3/90–12/90

675

4398

Ronald Brown

3

324

4/92–11/92

676

1750

Emanuel Smith

3

325

3/91–8/91

677

6908

Gerard Brown

3

326

__/91–11/91

678

3786

Jerald Brown

3

327

1/92–4/92

679

10471

Spencer Brown

3

328

2/93–6/93

680

9685

Carl A. Smith

3

329

10/90–6/91

681

3322

Joseph Soileau

3

330

10/91–11/92

682

12692

Charles Solo-
mon

3

331

1/92–3/92

683

446

Randy Falgout

3

332

7/91–8/91

684

11962

Keith Falgoust

3

333

9/91–4/92

685

3282

Robert
St. Amant

3

334

10/91–6/92

686

9129

Michael Brown

3

335

4/91–3/92

687

2524

J.C. Fairley

3

336

7/92–12/92

688

388

Robert St. Pe

3

337

8/93–5/94

689

5752

Joseph Starks

3

338

2/94–11/94

690

4742

Ronald Beasley

3

339

3/91–6/91

691

3030

Janet Every

3

340

3/90–3/91

692

3889

Michael Stein

3

341

1/92–4/92

693

3681

Craig Steven-
son

3

342

8/91–1/92

694

9246

Richard A.
Stewart

3

343

7/90–7/91

AVONDALE INDUSTRIES

1481

Tot.

Badge

Name

WN

#

Period
695 13042 Cynthia Stew-
art
3 344 5/91–1/92

696

4252

Bernell Stewart

3

345

5/92–1/93

697

4687

Edward Stew-
art

3

346

7/93–1/94

698

12598

Atheian Bau-
doin

3

347

4/93–3/94

699

9277

Dana Everhardt

3

348

7/90–1/91

700

4687

Edward Stew-
art

3

349

7/90–12/90

701

4252

Bernell Stewart

3

350

5/94–7/94

702

1343

Terry Brown

3

351

2/91–10/91

703

2992

Ingrid Evans

3

352

12/92–4/93

704

3356

Chester Davis

3

353

10/92–1/93

705

1820

Curtis Elmore

3

354

2/91–12/91

706

3094

Daniel Talley

3

355

6/91–6/92

707

10293

Anthony
Brown

3

356

5/92–12/92

708

1820

Curtis Elmore

3

357

3/92–10/92

709

1774

Leroy Taylor

3

358

7/91–3/92

710

23

Gardenia Tay-
lor

3

359

1/92–11/92

711

3442

Ralph Taylor

3

360

12/92–6/93

712

13058

Brian Ellis

3

361

6/93–4/94

713

2100

Richard Efans

3

362

11/92–10/93

714

1586

Todd Terring-
ton

3

363

4/92–12/92

715

8303

Terry P. Bourg

3

364

3/94–10/94

716

10990

Vernell Ed-
wards

3

365

12/91–1/92

717

4516

Gerald Ed-
wards

3

366

2/91–12/92

718

5805

Raymond Thi-
bodaux

3

367

5/90–4/91

719

4841

Alfred Bartley

3

368

3/91–7/91

720

5805

Raymond Thi-
bodaux

3

369

12/26/91–
12/1/92

721

3972

Veronica Thi-
bodeaux

3

370

5/93–2/94

722

4575

Timothy Thi-
bodeaux

3

371

6/91–1/92

723

4699

Ricco Davis

3

372

10/90–6/91

Tot.

Badge

Name

WN

#

Period

696

4252

Bernell Stewart

3

345

5/92–1/93

697

4687

Edward Stew-
art

3

346

7/93–1/94

698

12598

Atheian Bau-
doin

3

347

4/93–3/94

699

9277

Dana Everhardt

3

348

7/90–1/91

700

4687

Edward Stew-
art

3

349

7/90–12/90

701

4252

Bernell Stewart

3

350

5/94–7/94

702

1343

Terry Brown

3

351

2/91–10/91

703

2992

Ingrid Evans

3

352

12/92–4/93

704

3356

Chester Davis

3

353

10/92–1/93

705

1820

Curtis Elmore

3

354

2/91–12/91

706

3094

Daniel Talley

3

355

6/91–6/92

707

10293

Anthony
Brown

3

356

5/92–12/92

708

1820

Curtis Elmore

3

357

3/92–10/92

709

1774

Leroy Taylor

3

358

7/91–3/92

710

23

Gardenia Tay-
lor

3

359

1/92–11/92

711

3442

Ralph Taylor

3

360

12/92–6/93

712

13058

Brian Ellis

3

361

6/93–4/94

713

2100

Richard Efans

3

362

11/92–10/93

714

1586

Todd Terring-
ton

3

363

4/92–12/92

715

8303

Terry P. Bourg

3

364

3/94–10/94

716

10990

Vernell Ed-
wards

3

365

12/91–1/92

717

4516

Gerald Ed-
wards

3

366

2/91–12/92

718

5805

Raymond Thi-
bodaux

3

367

5/90–4/91

719

4841

Alfred Bartley

3

368

3/91–7/91

720

5805

Raymond Thi-
bodaux

3

369

12/26/91–
12/1/92

721

3972

Veronica Thi-
bodeaux

3

370

5/93–2/94

722

4575

Timothy Thi-
bodeaux

3

371

6/91–1/92

723

4699

Ricco Davis

3

372

10/90–6/91
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1482

Tot.

Badge

Name

WN

#

Period
724 4282 Larry Edwards 3 373 4/90–3/91

725

5156

Tricia A. Tho-
mas

3

374

6/93–3/94

726

5244

Dewery Tho-
mas

3

375

3/90–12/90

727

9785

Richard P.
Ebert

3

376

12/91–10/92

728

10865

Betty Thomas

3

377

7/91–10/91

729

5519

Darryl Du-
plessis

3

378

2/93–10/93

730

705

Patrick Thomp-
son

3

379

2/91–10/91

731

11235

Louis Thornton

3

380

7/91–11/91

732

9616

John Davis

3

381

12/92–5/93

733

859

Clifford Dumas

3

382

7/92–12/92

734

9664

Byron Dumas

3

383

3/91–2/92

735

4123

Phuong Tram

3

384

7/90–6/91

736

6864

Michael Treme

3

385

5/91–7/91

737

6864

Allen Trosclair

3

386

12/92–1/93

738

747

Arthur Truitt

3

387

10/29/90–
10/19/91

739

9664

Byron Dumas

3

388

9/93–11/93

740

9882

Hasker Turner

3

389

1/91–5/91

741

12256

Christopher
Duhe

3

390

2/92–5/92

742

3383

Kevin Bartley

3

391

9/91–3/92

743

2460

Delando Davis

3

392

5/91–11/91

744

3068

Roger Dufrene

3

393

6/94–11/94

745

10734

Thomas K.
Barber

3

394

7/93–1/94

746

1863

Chad Bour-
geois

3

395

9/92–8/93

747

3285

C.L. Wade

3

396

2/92–7/92

748

2959

Wade Walker

3

397

9/94–12/94

749

2959

Wade Walker

3

398

9/92–11/92

750

3893

LaMar Walker

3

399

5/93–3/94

751

4205

Raphael Del-
buno

3

400

7/92–3/93

752

537

Ray Washing-
ton

3

401

8/93–3/94

753

1118

Tyrone Brous-
seau

3

402

4/90–4/91

Tot.

Badge

Name

WN

#

Period

725

5156

Tricia A. Tho-
mas

3

374

6/93–3/94

726

5244

Dewery Tho-
mas

3

375

3/90–12/90

727

9785

Richard P.
Ebert

3

376

12/91–10/92

728

10865

Betty Thomas

3

377

7/91–10/91

729

5519

Darryl Du-
plessis

3

378

2/93–10/93

730

705

Patrick Thomp-
son

3

379

2/91–10/91

731

11235

Louis Thornton

3

380

7/91–11/91

732

9616

John Davis

3

381

12/92–5/93

733

859

Clifford Dumas

3

382

7/92–12/92

734

9664

Byron Dumas

3

383

3/91–2/92

735

4123

Phuong Tram

3

384

7/90–6/91

736

6864

Michael Treme

3

385

5/91–7/91

737

6864

Allen Trosclair

3

386

12/92–1/93

738

747

Arthur Truitt

3

387

10/29/90–
10/19/91

739

9664

Byron Dumas

3

388

9/93–11/93

740

9882

Hasker Turner

3

389

1/91–5/91

741

12256

Christopher
Duhe

3

390

2/92–5/92

742

3383

Kevin Bartley

3

391

9/91–3/92

743

2460

Delando Davis

3

392

5/91–11/91

744

3068

Roger Dufrene

3

393

6/94–11/94

745

10734

Thomas K.
Barber

3

394

7/93–1/94

746

1863

Chad Bour-
geois

3

395

9/92–8/93

747

3285

C.L. Wade

3

396

2/92–7/92

748

2959

Wade Walker

3

397

9/94–12/94

749

2959

Wade Walker

3

398

9/92–11/92

750

3893

LaMar Walker

3

399

5/93–3/94

751

4205

Raphael Del-
buno

3

400

7/92–3/93

752

537

Ray Washing-
ton

3

401

8/93–3/94

753

1118

Tyrone Brous-
seau

3

402

4/90–4/91
AVONDALE INDUSTRIES

1483

Tot.

Badge

Name

WN

#

Period

754

11373

Tommy Down-
ing

3

403

12/90–5/91

755

9174

Paul Washing-
ton

3

404

4/93–11/93

756

985

Melvin Doug-
las

3

405

10/90–3/91

757

2899

Ronald Wash-
ington

3

406

11/92–12/92

758

84

Christine
Washington

3

407

1/92–1/93

759

3743

Brian Washing-
ton

3

408

9/90–4/91

760

3852

Paulette Wash-
ington

3

409

1/92–7/92

761

3743

Brian Washing-
ton

3

410

1/93–10/93

762

5791

Bertrand
Brooks

3

411

6/91–10/91

763

6841

Leonard T.
Watkins

3

412

__/90–5/90

764

9806

Jurlean Weaver

3

413

7/91–12/91

765

6961

Brian O. Weber

3

414

5/93–6/93

766

6961

Brian O. Weber

3

415

2/91–8/91

767

3708

David Doucet

3

416

1/14/91–
1/10/92

768

2738

Allie Ray
White

3

417

8/93–4/94

769

3574

Cary Doucet

3

418

11/93–6/94

770

10906

Kevin Doris

3

419

8/17/92–
8/9/93

771

2172

Edward White

3

420

12/93–4/94

772

4038

Jeffrey Dono-
van

3

421

1/93–2/93

773

2516

Pamela Adams

3

422

10/92–8/93

774

11379

Elnora White

3

423

6/91–9/91

775

1022

Peter Adams

3

424

0

776

3075

David Wiley

3

425

2/93–8/93

777

3599

Bobby Willard

3

426

9/91–11/91

778

4177

Jules Domecq

3

427

6/91–2/92

779

5337

Bradford Wil-
liams

3

428

1/91–6/91

780

4046

Kevin Williams

3

429

6/90–3/91

781

3980

Warren Wil-
li

3

430

6/91–2/92

Tot.

Badge

Name

WN

#

Period
liams

782

1467

Kurt Dixon

3

431

6/93–10/93

783

2808

Geraldine
Williams

3

432

8/91–7/92

784

1384

Brandon Wil-
liams

3

433

7/92–7/92

785

4186

Frank Dickson

3

434

9/91–12/91

786

974

Dennis Demp-
ster

3

435

3/94–__/94

787

2979

Joseph Demag-
nus

3

436

8/91–11/91

788

455

Welson Breaux

3

437

1/90–6/90

789

9654

Phil Barre

3

438

5/91–1/92

790

4961

Errol J. Winn

3

439

10/90–7/91

791

3724

Joseph Winzy

3

440

7/90–6/91

792

4128

Freddie Delo-
ney

3

441

10/91–9/92

793

1767

Cedric Branche

3

442

9/93–6/94

794

12395

Michael Wood-
son

3

443

11/92–5/93

795

12395

Michael Wood-
son

3

444

7/91–9/91

796

9750

Gerald Wright

3

445

7/94–10/94

797

5389

Alfred Adams

3

446

10/91–5/92

798

9750

Gerald Wright

3

447

3/90–11/90

799

4051

Samuel Young

3

448

5/92–1/93

800

9955

Andrey Bar-
quero

3

449

4/90–1/91

801

969

Paul Abingdon

3

450

7/94–12/94

802

9980

Charles Zap-
pala

3

451

10/90–9/91
APPENDIX C
Employees, in addition to those listed on the General Coun-
sel’s Exhibit 364, listed by badge numbers, who were shown by
the General Counsel’s Exhibits 760, and higher, to have re-
ceived three or more warning notices (WN) within 12-month
periods from 1990 through 1994. The employees are sorted
according to the count (#) of those who received each quantity
of warning notices.

Tot.

Badge

WN

#
1

91560

14

1
2

751

12

1
3

4686

10

1
4

53841

10

2
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1484

Tot.

Badge

WN

#
5 10684 10 3
6

1001

9

1
7

171

8

1
8

91713

8

2
9

12148

8

3
10

11367

8

4
11

3156

8

5
12

5862

8

6
13

1833

7

1
14

10660

7

2
15

10658

7

3
16

12883

6

1
17

53280

6

2
18

2628

6

3
19

5729

6

4
20

8930

6

5
21

5122

6

6
22

10550

6

7
23

1295

6

8
24

2503

6

9
25

2071

6

10
26

11827

6

11
27

2230

6

12
28

462

5

1
29

1134

5

2
30

931

5

3
31

11316

5

4
32

726

5

5
33

829

5

6
34

815

5

7
35

12301

5

8
36

11867

5

9
37

10543

5

10
38

9884

5

11
39

11938

5

12
40

9168

5

13
41

12158

5

14
42

8155

5

15
43

12539

5

16
44

1809

5

17
45

5761

5

18
46

767

5

19
47

15507

5

20
48

5389

5

21
49

2914

5

22
50

4472

5

23
51

4122

5

24
52

2013

5

25
53

17670

5

26
54

3870

5

27
55

732

4

1

Tot.

Badge

WN

#

6

1001

9

1
7

171

8

1
8

91713

8

2
9

12148

8

3
10

11367

8

4
11

3156

8

5
12

5862

8

6
13

1833

7

1
14

10660

7

2
15

10658

7

3
16

12883

6

1
17

53280

6

2
18

2628

6

3
19

5729

6

4
20

8930

6

5
21

5122

6

6
22

10550

6

7
23

1295

6

8
24

2503

6

9
25

2071

6

10
26

11827

6

11
27

2230

6

12
28

462

5

1
29

1134

5

2
30

931

5

3
31

11316

5

4
32

726

5

5
33

829

5

6
34

815

5

7
35

12301

5

8
36

11867

5

9
37

10543

5

10
38

9884

5

11
39

11938

5

12
40

9168

5

13
41

12158

5

14
42

8155

5

15
43

12539

5

16
44

1809

5

17
45

5761

5

18
46

767

5

19
47

15507

5

20
48

5389

5

21
49

2914

5

22
50

4472

5

23
51

4122

5

24
52

2013

5

25
53

17670

5

26
54

3870

5

27
55

732

4

1
AVONDALE INDUSTRIES

1485

Tot.

Badge

WN

#
56 2367 4 2
57

1291

4

3
58

828

4

4
59

1555

4

5
60

504

4

6
61

12937

4

7
62

11836

4

8
63

2670

4

9
64

11831

4

10
65

11111

4

11
66

3032

4

12
67

3043

4

13
68

10918

4

14
69

10870

4

15
70

9603

4

16
71

7370

4

17
72

5597

4

18
73

5535

4

19
74

3659

4

20
75

3800

4

21
76

5522

4

22
77

5198

4

23
78

5125

4

24
79

4829

4

25
80

4696

4

26
81

459

4

27
82

4418

3

1
83

1937

3

2
84

4537

3

3
85

4563

3

4
86

4568

3

5
87

4392

3

6
88

4196

3

7
89

2007

3

8
90

4839

3

9
91

4875

3

10
92

4996

3

11
93

1926

3

12
94

3907

3

13
95

2125

3

14
96

1903

3

15
97

3830

3

16
98

3579

3

17
99

3413

3

18
100

5602

3

19
101

5621

3

20
102

5646

3

21
103

1832

3

22
104

5755

3

23
105

1827

3

24
106

1800

3

25

Tot.

Badge

WN

#

57

1291

4

3
58

828

4

4
59

1555

4

5
60

504

4

6
61

12937

4

7
62

11836

4

8
63

2670

4

9
64

11831

4

10
65

11111

4

11
66

3032

4

12
67

3043

4

13
68

10918

4

14
69

10870

4

15
70

9603

4

16
71

7370

4

17
72

5597

4

18
73

5535

4

19
74

3659

4

20
75

3800

4

21
76

5522

4

22
77

5198

4

23
78

5125

4

24
79

4829

4

25
80

4696

4

26
81

459

4

27
82

4418

3

1
83

1937

3

2
84

4537

3

3
85

4563

3

4
86

4568

3

5
87

4392

3

6
88

4196

3

7
89

2007

3

8
90

4839

3

9
91

4875

3

10
92

4996

3

11
93

1926

3

12
94

3907

3

13
95

2125

3

14
96

1903

3

15
97

3830

3

16
98

3579

3

17
99

3413

3

18
100

5602

3

19
101

5621

3

20
102

5646

3

21
103

1832

3

22
104

5755

3

23
105

1827

3

24
106

1800

3

25
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1486

Tot.

Badge

WN

#
107 6595 3 26
108

6869

3

27
109

7068

3

28
110

3367

3

29
111

1665

3

30
112

1610

3

31
113

1598

3

32
114

9231

3

33
115

9473

3

34
116

9495

3

35
117

9533

3

36
118

3365

3

37
119

9795

3

38
120

9880

3

39
121

1544

3

40
122

9931

3

41
123

10362

3

42
124

10400

3

43
125

10424

3

44
126

10427

3

45
127

1486

3

46
128

1381

3

47
129

1353

3

48
130

1290

3

49
131

386

3

50
132

3183

3

51
133

2409

3

52
134

11056

3

53
135

2571

3

54
136

11137

3

55
137

1274

3

56
138

1196

3

57
139

11644

3

58
140

11823

3

59
141

912

3

60
142

11828

3

61
143

2717

3

62
144

2575

3

63
145

789

3

64
146

11873

3

65
147

773

3

66
148

11982

3

67
149

12122

3

68
150

772

3

69
151

468

3

70
152

725

3

71
153

12334

3

72
154

712

3

73
155

12609

3

74
156

12719

3

75
157

676

3

76

Tot.

Badge

WN

#

108

6869

3

27
109

7068

3

28
110

3367

3

29
111

1665

3

30
112

1610

3

31
113

1598

3

32
114

9231

3

33
115

9473

3

34
116

9495

3

35
117

9533

3

36
118

3365

3

37
119

9795

3

38
120

9880

3

39
121

1544

3

40
122

9931

3

41
123

10362

3

42
124

10400

3

43
125

10424

3

44
126

10427

3

45
127

1486

3

46
128

1381

3

47
129

1353

3

48
130

1290

3

49
131

386

3

50
132

3183

3

51
133

2409

3

52
134

11056

3

53
135

2571

3

54
136

11137

3

55
137

1274

3

56
138

1196

3

57
139

11644

3

58
140

11823

3

59
141

912

3

60
142

11828

3

61
143

2717

3

62
144

2575

3

63
145

789

3

64
146

11873

3

65
147

773

3

66
148

11982

3

67
149

12122

3

68
150

772

3

69
151

468

3

70
152

725

3

71
153

12334

3

72
154

712

3

73
155

12609

3

74
156

12719

3

75
157

676

3

76
AVONDALE INDUSTRIES

1487

Tot.

Badge

WN

#
158 12892 3 77
159

2614

3

78
160

12970

3

79
161

13067

3

80
162

13076

3

81
163

13762

3

82
164

625

3

83
165

608

3

84
166

591

3

85
167

325

3

86
168

176

3

87
169

74

3

88
APPENDIX D
EMPLOYEES WHO WERE ISSUED FOUR OR MORE
WARNING NOTICES FOR ABSENTEEISM
IN 12-MONTH PERIODS
BEFORE THE ORGANIZATIONAL CAMPAIGN BEGAN
ON MARCH 1, 1993
1. On March 21 and August 15, 1990, pipe department em-
ployee Butch Lott (5295) was issued warning notices for absen-
teeism. On September 11, 1990, Lott was issued his third warn-
ing notice for absenteeism; absences of August 21 and 27 and
September 11 are cited. (It is to be specifically noted that,
unlike alleged discriminatee Isador Ancar, Lott was not dis-
charged on his second absence that followed his second warn-
ing notice; the same is to be noted about all of the comparative
cases listed in this appendix.) On November 19, 1990, Lott was
issued his fourth warning notice for absenteeism; the number of
days involved is not indicated. Lott was still not discharged, a
fact shown by several subsequent warning notices that are in
evidence.
2. On April 10 and September 18, 1990, paint department
employee Conrad Noil (447) was issued warning notices for
absenteeism. On October 22, 1990, Noil was issued his third
warning notice for absenteeism; absences of October 8, 16, and
22 are cited. On March 26, 1991, Noil was issued his fourth
warning notice for absenteeism in a 12-month period; absences
of February 26 and March 6, 12, and 18 are cited.
3. On April 29, 1991, Noil was issued his fourth warning no-
tice for absenteeism in the 12-month period that began with his
warning notice of September 18, 1990; absences of April 1, 11,
and 29 are cited. The warning notice is marked “Final Warn-
ing.”
4. On October 23, 1991, Noil, despite his prior express final
warning, was issued his third warning notice for absenteeism in
the 12-month period that began with his warning notice of
March 26, 1991. On January 6, 1992, Noil was issued his fourth
warning notice for absenteeism in the 12-month period that
began with his warning notice of March 26, 1991; absences of
December 16, 23, and 30, 1991, are cited. (That is, this was the
third time that Noil was issued his fourth warning notice for
absenteeism in a 12-month period.)
5. On March 16, 1992, despite his prior express final warn-
ing and other warnings, Noil was issued his fourth warning
notice for absenteeism in the 12-month period that began with
his warning notice of April 29, 1991; absences of February 28
and March 4 and 10 are cited. The warning notice is marked:
“Absences of 3 or more days in a 30-day period. Failure to call
in to the main paint office during all of your absences. You are
hereby warned of excessive absences. Final Warning.” (That is,
unlike the case of alleged discriminatee Octave Rouege, Noil’s
warning notice for absenteeism includes a warning notice for
failing to call in during his absences. It is further to be noted
that this was the fifth time that Noil was issued his fourth warn-
ing notice for absenteeism in a 12-month period.)
6. On August 8 and December 28, 1990, electrical depart-
ment employee Sammie Lewis (9339) was issued warning no-
tices for absenteeism. On February 4, 1991, Lewis was issued
his third warning notice for absenteeism. That warning notice
cites absences of January 22, 28, and February 4, 1991. (Again,
after being issued his third warning notice, Lewis was not, like
Ancar, discharged on his absence of January 28, his second
absence after his second warning notice.) On June 18, 1991,
Lewis was issued his fourth warning notice for absenteeism.
The notice cites absences of May 20 and June 3, 4, and 17,
1991. The warning notice concludes: “This is your final written
warning.” (That is, as well as compiling an absenteeism record
that was worse than Ancar’s with his January 28 absence, the
notation of “final” warning compels the conclusion that Lewis
was still not discharged when he was issued his fourth warning
notice. Rather, Lewis was simply issued another warning notice
which was marked “Final” and warned of future discipline
during his future employment with Respondent. The same con-
clusion, of course, is to be made in all other comparative cases
that include such warnings of future discipline.)
7. On August 13, 1990, and February 6, 1991, paint depart-
ment employee Anthony Ausama (4829) was issued warning
notices for absenteeism. The second of these warning notices
cited absences on January 2, 14, and 23 and February 4, 5, and
6. (Of course, the first three listed of absences could have been
the subject of a second warning notice and the absences of Feb-
ruary 4, 5, and 6 could have been the subject of a third warning
notice to Ausama. Additionally, it is to be noted that absences
on consecutive days of February 4, 5, and 6 constitute a sepa-
rate violation of major offense-1 under the Avondale Employ-
ees’ Guide. Nevertheless, Ausama was given only a single
warning notice for general offense-1 on this occasion. The al-
leged discriminatees’ absences, it is to be noted, were not so
liberally treated.) On March 25, 1991, Ausama was issued his
third warning notice for absenteeism; dates of March 13, 19,
25, and 26 are cited. The warning notice concludes: “Final
Warning!” On April 17, 1991, despite his prior express final
warning and other warnings, Ausama was issued his fourth
warning notice for absences on March 26 and April 9 and 17,
1991. The text of the warning is: “Unexcused absences of 3
working days in a calendar month. You have already received a
final warning. If you continue to miss time from work unneces-
sarily you could be discharged for any future absences. You
have been warned.”
8. On September 19, 1990, and January 23, 1991, paint de-
partment employee Russell Guillory (9884) was issued warning
notices for three or more absences within 30-day periods. On
April 17, 1991, Guillory was issued his third warning notice for
absenteeism. This warning notice cited four absences in March
and April 1991. On June 27, 1991, Guillory was issued his
fourth warning notice for absenteeism; four absences in June
are cited.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1488
9. On July 11, 1991, Guillory was issued his fifth warning
notice for absenteeism; absences on four dates in July are cited.
The warning notice concludes: “Final Warning.”
10. On September 20 and December 11, 1990, paint depart-
ment employee Evert Carter (5761) was issued warning notices
for absenteeism. The second of those warning notices cited
absences of November 27 and 29 and December 4, 7, and 10,
1990. (Of course, the first three of these November and De-
cember absences could have been the subject of a separate
warning notice, and the absences of December 7 and 10 would
be the first and second absences after a second warning notice,
which would have placed Carter in the same position as Ancar
when he was discharged.) On January 21, 1991, Carter was
issued his third warning notice for absenteeism. The dates of
December 31, 1990, and January 3, 9, and 15, 1991, are cited.
On June 7, 1991, Carter was issued his fourth warning notice
for absenteeism. Absences of May 8, 20, 28, and 31 and June 6,
1991, are cited. The text of the warning notice concludes: “You
are hereby warned of future absenteeism. Final Warning.”
11. On October 9, 1990, and April 3, 1991, pipe department
employee Kevin Stewart (3243) was issued warning notices for
absenteeism. On April 26, 1990, Stewart was issued his third
warning notice which cites absences of April 3, 9, 10, 11, 12,
and 25, 1990. Major offense-1 of the Avondale Employees’
Guide, 3 consecutive days of absence, is circled and references
are made to absences on April 9, 10, and 11. The warning no-
tice concludes: “This your final warning. Any other violations
of this matter will result in discharge.” (Of course, a separate
warning notice for three absences in 30 days, under general
offense-1, could have been issued to Stewart based his absences
of April 3, 12, and 25, but it was not. This is just another exam-
ple of why comparisons of only raw numbers of warning no-
tices do not give a complete picture of the indulgences that
were afforded other employees but not Ancar and the other
alleged discriminatees who were discharged for absenteeism.)
On October 2, 1991, despite his prior express final warning and
other warnings, Stewart was issued his fourth warning notice
for absences on September 10, 13, and 25 and October 1 and 2,
1991.
12. On October 31, 1990, and June 17, 1991, paint depart-
ment employee Robert Bryant (5729) was issued warning no-
tices for absenteeism. The second of these notices is marked:
“Final Warning!” On September 5, 1991, despite his prior ex-
press final warning, Bryant was issued his third warning notice
for absences on August 7, 19, and 27, 1991. The notice con-
cludes: “You are hereby warned of absenteeism.” On Septem-
ber 12, 1991, despite his prior express final warning and other
warnings, Bryant was issued his fourth warning notice for ab-
senteeism.
13. On November 1, 1990, paint department employee Fred
Wilson (2628) was issued one warning notice for 10 absences
in October 1990. (Of course, these 10 absences could have been
the subject of three separate warning notices and Wilson’s sub-
sequent absences should be viewed accordingly). On April 10,
1991, Wilson was issued his second warning notice for absen-
teeism; seven absences within a 30-day period are cited, and the
notice includes a warning for the offense of failing to call in on
any of his days of absence. The warning notice concludes: “Fi-
nal Warning.” On May 13, 1991, despite his prior express final
warning, Wilson was issued his third warning notice for absen-
teeism; five absences in a 30-day period are cited; to wit: April
15, 16, and 17 and May 2 and 13, 1991; the notice includes a
warning for the offense of failing to call in on three of those
dates. On June 7, 1991, Wilson was issued his fourth warning
notice for absenteeism in a 12-month period; four absences
within a 30-day period are cited, and it includes a warning for
failing to call in on three of those dates.
14. On November 11, 1991, Wilson was issued his fourth
warning for absenteeism in the year that began with his warn-
ing notice of April 10, 1991. This warning notice was issued
under major offense-1 of the Avondale Employees’ Guide, as it
is for 5 consecutive days of absenteeism. (March 4 through 8.)
The warning notice further includes a warning for failing to call
in on any of Wilson’s consecutive days of absences. The warn-
ing notice concludes: “Continue to miss work and you will be
terminate for chronic absenteeism. Final warning.”
15. On March 13, 1992, Wilson was issued his fifth warning
notice for absenteeism in the year that began on April 10, 1991.
Six days of absence within a 30-day period are cited, and the
notice includes a warning for failure to call in on 4 of those
days. This warning notice also concludes: “You are hereby
warning of chronic absenteeism. Final Warning.” (The illustra-
tive nature of Wilson’s case is discussed in detail in the narra-
tive of Ancar’s case.)
16. On November 5, 1990, and May 28,1991, paint depart-
ment employee John Aguillard (931) was issued two warning
notices for absenteeism. On July 10, 1991, Aguillard was is-
sued his third warning notices for absenteeism; four absences
are cited. The warning notice concludes: “This department will
not tolerate absenteeism. You are hereby warned of chronic
absenteeism.” On September 5, 1991, despite the message that
the paint department does not tolerate absenteeism, Aguillard
was issued his fourth warning notice for absenteeism; four ab-
sences are cited. The warning notice concludes: “You are
hereby warned of absenteeism.”
17. On November 12, 1991, again despite the message that
the paint department does not tolerate absenteeism, Aguillard
was issued his fourth warning notice for absenteeism in the 12-
month period that began with his May 28, 1991 warning notice.
Five absences are cited. The warning notice concludes: “Con-
tinue to miss work and you will be terminated for chronic ab-
senteeism. Citations given 5/28/91, 7/10/91, 9/5/91, 11/12/91,
for absenteeism. Final Warning.” (That is, on its face, this
warning notice noted that it was Aguillard’s fourth in 12
months. Respondent offers no explanation of how this could be,
but Ancar and Rouege were discharged for two absences after
their second warning notices.)
18. On November 16, 1990, and April 29, 1991, paint de-
partment employee James Kosales (9713) was issued separate
warning notices for missing three days in a 30-day period. On
August 28, 1991, Kosales was issued his third warning notice
for missing 3 days in a 30-day period. The warning notice con-
cludes: “You are warned of absenteeism.” On October 23,
1991, Kosales was issued his fourth absenteeism warning no-
tice in a 12-month period.
19. On December 5, 1990, and August 2, 1991, paint de-
partment employee Leo Lager (4295) was issued two warning
notices; the first warning notice was for four absences, and the
second was for five absences. On September 9, 1991, Lager
was issued his third warning notice for absenteeism; four ab-
sences are cited. The warning notice concludes: “You are
hereby warned of absenteeism.” On December 6, 1991, Lager
was issued his third warning notice for absenteeism within the
year that began with his August 2, 1991, warning notice. This
AVONDALE INDUSTRIES

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last warning notice cites five absences within a 30-day period.
The notice concludes: “You are hereby warned of chronic ab-
senteeism. Continue to miss work and action will be taken.” On
January 6, 1992, Legar was issued his fourth warning notice for
absenteeism in the year that began with his August 2, 1991,
warning notice. Four absences within 30 days are cited, and the
notice includes a warning for the offense of failing to call in on
all of the days of absence listed.
20. On January 2, 1991, paint department employee William
Brown (3058) was issued one warning notice for seven ab-
sences within a 30-day period. The warning notice concludes:
“Final Warning!” On May 14, 1991, despite his prior express
final warning, Brown was issued his second warning notice for
absenteeism; four absences with a 30-day period are cited. On
September 27, 1991, despite his prior express final warning and
other warning, Brown was issued his third warning notice for
four absences within a 30-day period. On December 6, 1991,
despite his prior express final warning and other warnings,
Brown was issued his fourth warning notice for absenteeism;
four absences within a 30-day period are cited.
21. On January 28 and April 18, 1991, paint department em-
ployee Karen Gillin (11111) was issued two warning notices
for absenteeism. The second of these concludes: “Chronic ab-
senteeism can result in loss of employment if continued. You
have been notified of this problem. FINAL WARNING.” On
May 20, 1991, despite her prior express final warning, Gillin
was issued her third warning notice, this one for six absences in
a 30-day period. The notice further includes a warning for fail-
ing to call in on 4 of those 6 days. On September 9, 1991, Gillin
was issued her fourth warning notice for absenteeism. Seven
absences in a 30-day period are cited. The warning notice con-
cludes: “Continue to miss work and action will be taken. You
are hereby warned of Chronic absenteeism. Final warning.” (Of
course, Gillin could have been issued her fourth warning notice
for absenteeism after the first three of her seven absences; again
the count of warning notices only understates the indulgences
that were afforded to the employees before the organizational
campaign began.)
22. On February 6 and February 20, 1991, paint department
employee Joe Gassenberger (3504) was issued warning notices
for absenteeism. (The second of these warning notices was for
seven different absences in a 30-day period and therefore could
have been the subject of two separate warning notices, making
three warning notices for Gassenberger in 1 month, but it was
not.) On August 13, 1991, Gassenberger was issued his third
warning notice for absences on July 17 and 18 and August 9,
1991. On December 6, 1991, Gassenberger was issued his
fourth warning notice for absenteeism. The warning cites ab-
sences of November 19 and 20 and December 6, 1991. The
warning notice further includes a warning for Gassenberger’s
failure to call in on any of the days that he was absent. The
warning notice concludes: “You are hereby warned of chronic
absenteeism. Continue to miss work and action will be taken.”
23. On January 6, 1992, Gassenberger was issued his fifth
warning notices for absenteeism within a 12-month period.
Cited are absences of December 9, 23, and 24, 1991.
24. On February 19, 1992, Gassenberger was issued his fifth
warning notice in the 12-month period that began with his
warning notice of February 20, 1991. This last warning notice
notes absences of February 5, 11, 13, and 14. This warning
notice concludes, “Final Notice,” and Gassenberger was there-
fore presumably still not discharged.
25. On February 14, and September 6, 1991, paint depart-
ment employee Byron Trudeaux (11316) was issued warning
notices for 3 days of absenteeism in two 30-day periods. The
warning notice of September 6, concludes: “Final Notice.” On
September 13, 1991, despite his prior express final warning,
Trudeaux was issued another warning notice for absences on
five different dates between November 18 and December 9,
1991. This notice also includes a warning for the offense of
failing to call in to the paint department office on December 6
and 9, 1991. The warning notice concludes: “You are hereby
warned of chronic absenteeism.” On January 6, 1992, despite
his prior express final warning and other warnings, Trudeaux
was issued his fourth warning notice for absenteeism in a 12-
month period. The warning notice cites Trudeaux’s absences of
December 20, 23, and 30, 1991, and January 3, 1992. (The
warning notice does not indicate that Trudeaux was discharged
after this fourth warning notice, but, at least he was not dis-
charged on December 20, 23, or 30 after having previously
been issued three warning notices for absenteeism.)
26. On February 18 and July 8, 1991, paint department em-
ployee Norman Lesterich (11827) was issued two warning
notices for absences within 30-day periods. On August 14,
1991, Lesterich was issued his third warning notice for five
absences within a 30-day period. The notice concludes: “You
are warned of absenteeism.” On September 5, 1991, Lesterich
was issued his fourth warning notice for absenteeism; five ab-
sences within a 30-day period are cited. This warning notice
also concludes: “You are hereby warned of absenteeism.”
27. On October 10, 1991, Lesterich was issued his fifth
warning notice for absenteeism; three absences within a 30-day
period are cited.
28. On December 13, 1991, Lesterich was issued his sixth
warning notice for absenteeism in a 12-month period; absences
of November 6, 14, 18, 21,and 25 and December 10 and 16,
1991, are cited. This notice also includes a warning for the
offense of “failure to call in during absences of 11/14, 11/21,
and 11/25, 1991.” It concludes: “Continue to miss work and
action will be taken. You are warned of absenteeism.” Below
this wording is the following entry, apparently made by the
clerk of the paint department: “Employee being discharge for
this being his eight notice for missing time.” (This is the only
notation of a discharge that was included on any of the warning
notices upon which this Appendix is based.) To compare accu-
rately Lesterich’s case with Ancar’s, it is to be noted that Les-
terich was not discharged for at least six absences after his fifth
warning notice within the 12-month period.
29. On February 26, 1991, paint department employee Kevin
Cheatham (11367) was issued a warning notice for absences on
February 1, 5, 6, 7, 11, 14, and 15. (Of course, under the Avon-
dale employees guide, the absences of February 1, 5, and 6, and
the absences of February 7, 11, and 14, could have been made
the basis for two separate warning notices, but Respondent
indulgently combined all the offenses into one warning notice).
On March 6, 1991, Cheatham was given a warning notice for
the additional absences of February 20, 25, and 26. On March
12, 1991, after having received two warning notices, Cheatham
was issued a third warning notice for absences on March 6, 7,
and 11, 1991. This notice concludes: “Final Warning!” On May
22, 1991, despite his prior express final warning and other
warnings, Cheatham was issued his fourth warning notice of
the year for absenteeism. Absences of May 1, 6, 8, and 15 are
cited. The warning notice concludes only: “Second Notice.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1490
30. On June 24, 1991, despite his prior express final warning
and other warnings, Cheatham was issued his fifth warning
notice of the year for absenteeism. His absences of June 4, 6,
and 10 are cited. The warning notice concludes: “You are
hereby warned of absenteeism.”
31. On October 23, 1991, Cheatham was issued his sixth
warning notice of the year for absenteeism. Absences of Sep-
tember 30 and October 7, 8, and 17 are cited.
32. On December 13, 1991, Cheatham was issued his sev-
enth warning notice of the year for absenteeism. The warning
notice concludes: “You are hereby warned of absenteeism.
Continue to miss work and action will be taken.”
33. On January 6, 1992, Cheatham was issued his eighth
warning notice for absenteeism in the year that began with his
warning notice of February 26, 1991. Absences on December
16, 23, 24, 26, and 30 are cited. The notice further includes a
warning for the offense of Cheatham’s failure to call in during
his absence of December 24. There is no indication whether
Cheatham was discharged after this last warning notice, but, at
least, he was not discharged after his absences of December 16,
23, 24, or 26, 1991, which followed his seventh warning notice.
(This, of course, was a great deal more absenteeism after many
more warning notices than that which Ancar experienced.)
34. On March 4, and April 1, 1991, paint department em-
ployee Gregory Lee (9168) was issued two warning notices for
absenteeism. On June 10, 1991, Lee was issued his third warn-
ing for missing 5 days in May, and the notice includes a warn-
ing for failure to call in on three of those five dates. This warn-
ing notice concludes: “You are hereby warned for absentee-
ism.” On October 23, 1991, Lee was issued his fourth warning
notice for three absences in a 30-day period.
35. On January 6, 1992, Lee was issued his fifth absenteeism
warning notice for missing 3 days during the proceeding De-
cember.
36. On March 5, and April 29, 1991, paint department em-
ployee Michael Himel (10138) was issued warning notices for
absenteeism. (Both of these warning notices cited five absences
within 30-day periods). On May 15, 1991, Himel was issued his
third warning notice for three absences within the month of
May. The warning notice also includes a warning for the of-
fense of failure to call in to the plant during two of those ab-
sences. On June 6, 1991, Himel was issued his fourth warning
notice for absenteeism; three absences in a 30-day period are
cited. The warning notice concludes: “Final Warning,” and
Himel was presumably still not discharged.
37. On March 5, 1991, paint department employee Tammie
Long (10684) was issued a warning notice for five absences in
a 30-day period. On June 5, 1991, Long was issued a second
warning notice for six absences in a 30-day period; this notice
also includes a warning for the offense of failing to call in on
five of those six absences. The warning notice concludes: “Fi-
nal Warning.” On August 12, 1991, despite her prior express
final warning and other warnings, Long was issued her third
warning notice for absenteeism; six absences in a 30-day period
are cited. The warning notice concludes: “You are warned of
absenteeism.” On September 9, 1991, despite her prior express
final warning and other warnings, Long was issued her fourth
warning notice for absenteeism. Absences on four dates in a 30-
day period are cited; also the notice includes a warning for the
offense of failing to call in on three of those four dates. The
notice concludes: “Continue to miss work and action will be
taken. You are warned of chronic absenteeism. Final warning.”
38. On January 6, 1992, despite her prior express final warn-
ings and other warnings, Long was issued her fifth warning
notice in a year for absenteeism. The notice cites three absences
and includes a warning for her failure to call in on two of those
absences.
39. On January 23, 1992, again despite her prior express fi-
nal warnings and other warnings, Long was issued her sixth
warning notice for absences; absences on four different dates
are cited.
40. On March 12 and May 8, 1991, employee 4823 (whose
signature is illegible) was issued warning notices for absentee-
ism. On July 31, 1991, employee 4823 was issued his third
warning notice for absenteeism; absences of July 2, 8, 10, 15,
and 23 are cited. (That is, this employee was not issued a warn-
ing notice for his next three absences following his second
warning notice.) On September 5, 1991, employee 4823 was
issued his fourth warning notice for absenteeism within a 12-
month period. Absences of August 6, 13, 26, and 27 and Sep-
tember 3 are cited. The warning notice concludes:”You are
hereby warned of absenteeism.”
41. On March 12 and June 10, 1991, paint department em-
ployee K. Butler (1288) was issued warning notices for absen-
teeism. On August 12, 1991, Butler was issue his third warning
for absenteeism; absences of July 15, 16, 17, 24, and 29 and
August 7, 1991, are cited. The notice concludes: “You are
warned of absenteeism.” On October 15, 1991, Butler was is-
sued his fourth warning notice for absences. Three dates are
cited, and the warning notice concludes: “You are hereby
warned of chronic absenteeism. Continue to miss time and
disciplinary action will be taken. Final Warning.”
42. On December 6, 1991, despite his prior express final
warning and other warnings, Butler was issued his fifth warn-
ing notice in 7 months for absenteeism; absences of November
4, 19, 20, and 21 and December 3, 1991, are cited. The warning
notice concludes: “You are hereby warned of chronic ab-
sences.”
43. On April 29 and May 13, 1991, paint department em-
ployee Reginald Ratliff (11963) was issued warning notices for
absenteeism. On October 23, 1991, Ratliff was issued his third
warning notices for 3 days of absence during the month of Oc-
tober. On December 13, 1991, Ratliff was issued his fourth
warning notice for absenteeism. The notice further includes a
warning for failure to call in on 3 of the 4 days of absence cited.
The warning notice concludes: “You are hereby warned of
absenteeism. Continue to miss work and action will be taken.”
44. On May 10, August 20 and October 19, 1991, paint de-
partment employee Gregory Martin (4290) was issued three
warning notices for absenteeism. (The first of these warning
notices covered nine absences; the second covered four.) On
October 23, 1991, Martin was issued his fourth warning notice
for absenteeism in a 12-month period.
45. On March 19, 1992, Martin was issued his fifth warning
notice for absenteeism in a 12-month period; the dates of Feb-
ruary 21 and 28 and March 2 and 16 are cited; also included in
this one warning notice is a warning for “Failure to call into the
main paint office during all of your absences.” The warning
notice concludes: “Final Warning.” (Martin was still not dis-
charged; on November 16 and December 3, 1992, Martin was
issued more warning notices for absenteeism.)
46. On May 17 and October 31, 1991, paint department em-
ployee Jay Dean (2265) was issued warning notices for absen-
teeism. On December 6, 1991, Dean was issued a third warning
AVONDALE INDUSTRIES

1491
notice for absenteeism. This notice includes a warning for the
offense of failing to call in during any of the absences cited.
The notice concludes: “You are hereby warned of chronic ab-
senteeism. Continue to miss work and action will be taken.” On
December 31, 1991, Dean was issued his fourth warning notice
for his absences on December 10, 13, 24, and 31.
47. On January 13, 1992, Dean was issued his fifth warning
notice for absenteeism in the year that began on May 17, 1991.
48. On September 17, 1992, Dean was issued his fifth warn-
ing notice for absenteeism in the period which began with his
warning notice of October 31, 1991. Citing absences of August
3, 11, and 19, and September 3 and 8, 1992, the warning notice
concludes: “Violation of any other Company rules or regula-
tions will result in your termination. Final warning,” and Dean
was presumably still not discharged.
49. On May 26 and June 10, 1991, paint department em-
ployee Solomon DuRousseau (10525) was issued warning no-
tices for absenteeism. On August 16, 1991, DuRousseau was
issued his third warning notice for absenteeism; absences of
July 29 and August 16 are cited. (This warning notice was not
marked “Final”; instead it was marked: “You are warned of
absenteeism.”) On October 23, 1991, DuRousseau was issued
his fourth warning notice for absenteeism; absences of October
2 and 14, and consecutive absences of October 7, 8, 9, and 10,
are cited. (The consecutive absences, of course, constituted a
violation of major offense-1, but they were not made the sub-
ject of a separate warning notice, and this warning notice was
marked for general offense-1, only.) The warning notice is not
marked “Final,” or otherwise marked.
50. On December 13, 1991, DuRousseau was issued his fifth
warning notice for absenteeism; absences of November 12 and
25 and December 5 are cited. The warning notice concludes:
“You are hereby warned of chronic absenteeism.”
51. On January 6, 1992, DuRousseau was issued his sixth
warning notice for absenteeism; absences of December 16, 20,
30, and 31 are cited. The warning notice is not marked “Final,”
or otherwise marked.
52. On July 23, 1992, DuRousseau was issued his fifth warn-
ing notice for absenteeism within the 12-month period that
began with his August 16, 1991 warning notice. Absences of
July 20 and 22 and “other” are cited. The notice concludes:
“You are hereby notified that you have been absent an exces-
sive amount of work [days]. Should you continue to do this,
immediate disciplinary action will be taken.” That is, DuRous-
seau was still given another chance. (And DuRousseau was still
not discharged for three more absences that he later had begin-
ning on January 27, 1993; instead, he was then given another
warning notice marked: “Final Warning—Violation of any
other Company rules or regulations will result in your termina-
tion.”)
53. On May 29, 1991, paint department employee Daniel
Goodman (2445) was issued a warning notice for three ab-
sences in the month of May. Goodman’s prior record of absen-
teeism is not in evidence, but the warning notice concludes:
“You are being warned that chronic absenteeism can result in
loss of employment with this department.” On August 12,
1991, despite this warning of finality, Goodman was issued his
second warning notice for absenteeism; on that warning notice
four absences within a 30-day period are cited. The warning
notice concludes: “You are warned of absenteeism.” On August
27, 1991, Goodman was issued his third warning notice, this
time for four more absences. The notice also includes a warning
for the offense of failing to call in on each of those 4 days of
absence. The warning notice concludes: “You are hereby
warned of chronic absenteeism.” On October 7, 1991, Good-
man was issued his fourth absenteeism warning notice for three
more absences. The warning notice concludes: “Continue to
miss work and you will be terminated for chronic absenteeism.
Final Warning.”
54. On June 25, September 5 and 18,1991, paint department
employee Gerrod Brown (6908) was issued warning notices for
absenteeism. On February 11, 1992, Brown was issued his
fourth warning notice for absenteeism. Five absences in a 30-
day period are cited, and the notice concludes: “If you miss any
more work time or received another citation for any reason, you
will be terminated.—Note—employee has four citations in
folder.—Final Warning.”
55. On July 31, 1991, paint department employee Michael
Robinson (11897) was issued one warning notice for six ab-
sences in the month of July. On December 6, 1991, Robinson
was issued a warning notice for four more absences. The latter
notice also includes a warning for the offense of failing to call
in during any of the absences. The warning notice concludes:
“Continue to miss work and action will be taken by the main
paint office.” On March 31, 1992, Robinson was issued his
third warning notices for absenteeism; four absences within a
30-day period are cited. (This, of course, is not a case of four
warning notices for absences, but it is a case of three warning
notices covering 14 absences which could have been the subject
of four separate warning notices under general offense-1 of the
Avondale Employees’ Guide, and I find that it is appropriate to
include this case in this Appendix. The discharges of the al-
leged discriminatees, of course, are defended on the bases of far
fewer absences.)
56. On August 23 and September 18, 1991, paint department
employee Oscar James (13162) was issued warning notices for
absenteeism. On October 28, 1991, James was issued his third
warning notice for absenteeism; absences of September 30 and
October 16 and 28 are cited. On January 2, 1992, James was
issued a fourth warning notice for absenteeism; absences on
December 16, 20, 26, 27, and 31 are cited.
57. On March 11, 1992, James was issued his fifth warning
notice for absenteeism; absences of March 9, 10, and 11 are
cited. This warning notice was issued under general offense-1
of the Avondale Employees’ Guide, not major offense-1 (three
consecutive absences) as it could have been.
58. On June 15, 1992, James was issued his sixth warning
notice for absenteeism in a 12-month period; the dates of May
15 and June 2, 11, and 15 are cited. James was still not dis-
charged, a fact shown by another warning notice (for tardiness)
that James was issued on June 24, 1992.
59. On September 9, 1991, paint department employee Leo-
nard Scott (4814) was issued a warning notice for missing six
days in a 30-day period. The notice concludes: “You are
warned of absenteeism.” On October 25, 1991, Scott was is-
sued his second warning notice for absenteeism; four absences
in a 30-day period are cited. The notice also includes a warning
for the offense of failing to call in on any of the days Scott
absences. (It is to be noted that these two warnings could well
have been the subject of three separate warning notices for
absenteeism as they involved 10 days of absence.) On Decem-
ber 6, 1991, Scott was issued his third warning notice for ab-
senteeism. Six days of absences within a 30-day period are
cited. The warning notice concludes: “You are hereby warned
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1492
of chronic absenteeism. Continue to miss work and action will
be taken by the paint office.” On January 6, 1992, Scott was
issued his fourth warning notice for absenteeism; four absences
are cited.
60. On February 5, 1992, Scott was issued his fifth warning
notice, this one for seven absences in a 30-day period. The
notice further includes a warning for the offense of failing to
call in to the main painting office during all of these absences.
The warning notice concludes: “You are hereby warned [that]
upon your next unexcused absence you will be terminated.
Final warning.”
61. Despite the categorical warning in his fifth warning no-
tice, on May 29, 1992, Scott was issued a sixth warning notice,
this time for six absences within a 30-day period. This last
warning notice concludes: “Violation of any other Company
rules or regulations will result in your termination. Do not con-
tinue to miss time at work or action will be taken by the paint
office.”
62. On September 9 and October 23, 1991, paint department
employee Alvin Roussel (4122) was issued warning notices for
absenteeism. On December 6, 1991, Roussel was issued his
third warning notice for absenteeism; the dates of November 21
and December 2 and 6 are cited. On January 6, 1992, Roussel
was issued his fourth absenteeism warning notice within a
twelve-month period; the dates of December 9 and 16, 1991,
and January 3, 1992, are cited. (I cannot tell if Roussel was then
discharged, but he was plainly not discharged after his two
absences which followed his third warning notice for absentee-
ism. The treatment of Roussel is another to be contrasted with
that of Ancar whom Respondent contends was discharged be-
cause he was absent twice after his second warning notice for
absenteeism.)
63. On October 11 and December 6, 1991, paint department
employee number 1156 (name illegible) was issued two warn-
ing notices. The first of these is for four absences within a 30-
day period; the second is for five. The latter warning notice
concludes: “You are hereby warned of chronic absenteeism.
Continue to miss work and action will be taken by the paint
office.” On March 16, 1992, this employee was issued his third
warning notice for three absences in a 30-day period. The no-
tice further includes a warning for the offense of failing to call
in “during all of your absences.” The warning notice concludes:
“You are hereby warned of excessive absenteeism. Final Warn-
ing.” (This, of course, is not a case of four warning notices for
absences, but it is a case of three warning notices covering 12
absences. Again, these absences could have been the subject of
four separate warning notices under general offense-1 of the
Avondale Employees’ Guide, and they constitute a far worse
record than that upon which Respondent defends the discharges
of Ancar and the other alleged discriminatees. I therefore find
that it is appropriate to include this case in this Appendix.)
64. On October 19 and October 23, 1991, paint department
employee Joseph Bonier (3910) was issued warning notices for
absenteeism. On November 7, 1991, Bonier was issued his
third warning notice for absenteeism. The warning notice cites
absences of October 28 and 29 and November 4 and 6, 1991.
The notice further includes a warning for the offenses of not
calling in on each of those dates. The warning notice concludes:
“Continue to miss work and you will be terminated for chronic
absenteeism. Final warning.” On December 6, 1991, despite his
prior express final warning and other warnings, Bonier was
issued his fourth warning notice for absenteeism. The notice
cites his absences on nine dates; to wit: November 8, 12, 13,
18, 25, and 26 and December 2, 3, and 4. (Of course, these nine
absences could have been the subject of three separate warning
notices, the last of which would be for major offense-1 of the
Avondale Employees’ Guide, missing three consecutive work-
days in a row. Also to be noted is the fact that these absences
fell closely after Bonier’s warning notice of November 7, but
they caused no more than essentially the same comment on the
warning notice; to wit: “You are hereby warned of chronic
absenteeism. Continue to miss work and you will be terminated
for chronic absenteeism by the paint office.” Bonier’s case is to
be specifically compared with that of alleged discriminatee
Marie Joseph whom Respondent contends was discharged be-
cause she was absent once within 7 workdays after having re-
ceived a warning notice for absenteeism.)
65. On January 6, 1992, despite his prior express final warn-
ings and other warnings, Bonier was issued his fifth warning
notice for absenteeism. Cited are absences of December 27, 30,
and 31, 1991, and January 3, 1992. (Because Departmental
Superintendent Bourg signed this warning notice, it is unlikely
that Bonier was also discharged. If, however, Bonier was ter-
minated upon issuance of this last warning notice, it is plain
enough that he still was not discharged until he had cumulated
at least three absences after his fourth warning notice within a
3-month period.)
66. On March 13 and October 30, 1992, paint department
employee number 9861 (name illegible) was issued warning
notices for absenteeism. On November 11, 1992, employee
9861 was issued his third warning notice for absenteeism in the
year. The notice cites absences of October 13 and 19, and No-
vember 9 and 11, 1992. The notice further recites that the em-
ployee failed to call in to the paint office on November 11. The
warning notice concludes: “Violations of any other Company
rules and regulations will result in your termination. Final
warning notice.” On January 27, 1993, despite his prior express
final warning and other warnings, employee 9861 was issued a
fourth warning notice for his absenteeism within the 12-month
period that began March 13, 1992. After noting absences of
January 4, 14, and 25, 1993, the warning notice concludes:
“Final warning. Violation of any other Company rules or regu-
lations will result in your termination.” (Employee 9861 was
still not discharged; in fact, on May 21, 1993, despite his prior
express final warnings and other warnings, he was issued an-
other warning notice for absenteeism, his fourth in the 12-
month period which began with his warning notice of October
30, 1992. After noting absences of April 13 and 28, and May
21, that warning notice recites: “You are hereby notified that
you have been absent an excessive amount of workdays.
Should you continue to do this immediate disciplinary action
will be taken.” This last warning shows that the employee was
even then not discharged.)