Brown & Root-Northrop

National Labor Relations Board - Board Decisions

Jun 26, 1969

177 N.L.R.B. 1 (N.L.R.B. 1969)

BROWN & ROOT-NORTHROP
Brown & Root-Northrop and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America (UAW). Cases
23-CA-3042 and 23-CA-3043
June 26, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On February 27, 1969, Trial Examiner Sydney S.
Asher, Jr., issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended that the
complaint be dismissed as to them. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in these cases, and hereby adopts
the findings,' conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Brown &
Root-Northrop, Houston, Texas, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
herein called the Union , filed charges in Case 23-CA-3042
against Brown & Root - Northrop, Houston , Texas,
herein called the Respondent . On the same date, the
Union filed charges in Case 23-CA-3043 against the same
Respondent . After the filing of amended charges in both
cases,' the Regional Director consolidated the two cases.
On October 8, 1968 , the General Counsel issued a
consolidated complaint , alleging that since on or about
June 13 , 1968, the Respondent has interfered with,
restrained , and coerced its employees by certain specified
conduct ; that on or about April 29, 1968 , the Respondent
transferred Marie Carrejo , one of its employees , from her
job station on the first floor of Building 29 at the Manned
Spacecraft Center to the second floor of Building 29 at
the Manned Spacecraft Center and since then has failed
and refused to return her to her former duty station; and
that on or about June 21, 1968 , the Respondent denied
her a merit raise , and since that date has continued its
refusal to grant her a merit raise , and that such conduct
was engaged in because she gave testimony under the Act.
It is further alleged that on or about June 13 , 1968, the
Respondent denied a merit raise to David E . Baier, one of
its employees , and since that date has continued its refusal
to grant him a merit raise , because he joined or assisted
the Union or engaged in concerted activities and because
he gave testimony under the Act. It is alleged that this
conduct violated Section 8(a)(1), (3), and (4) of the
National Labor Relations Act, as amended (29 U.S.C.
Sec. 151 , et. seq .), herein called the Act. Thereafter the
Respondent filed an answer admitting that it transferred
Carrejo from one job station to another on or about April
29, 1968 , but denying all other allegations of the
consolidated complaint , and denying the commission of
any unfair labor practices.
Upon due notice , a consolidated hearing was held
before me on November 25 and 26, 1968, in Houston,
Texas . All parties were represented and participated fully
in the hearing . Only the General Counsel produced
witnesses . After the close of the hearing the General
Counsel and the Respondent filed briefs, and the
Respondent filed a list of three corrections to its brief.
Both briefs , as corrected , have been duly considered.'
Upon the entire record in these cases , and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
A. Preliminary Matters
The complaint alleges, the answer admits, and it is
found, that the Respondent is, and at all material times
has been, an employer engaged in commerce as defined in
the Act, and its operations meet the Board's jurisdictional
standards;' and that the Union is, and at all material
times has been, a labor organization as defined in the Act.
'The Respondent excepted to the Trial Examiner's finding, in fn. 10 of
his Decision , that the Respondent's failure to offer certain records in
evidence gave rise to a presumption that such evidence would be
unfavorable to Respondent . We find merit in this exception. As the
Respondent chose not to go forward with its case in reliance on its
contention that the General Counsel had failed to establish a prima facie
case , no such presumption may be drawn.
TRIAL EXAMINER 'S DECISION
SYDNEY S. ASHER, JR., Trial Examiner : On May 29,
1968, International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW),
'The charges and amended charges in both cases included William A.
Brown , Esq. as an additional Respondent However, as he is not named in
the complaint , he is not now a party to these proceedings.
'In its brief the Respondent requests that I reconsider a ruling made at
the hearing excluding certain proffered testimony The motion to
reconsider is granted Having reconsidered the matter , I adhere to my
original ruling.
In his brief the General Counsel requests that I reconsider another ruling
excluding G.C Exh. 2-S-3 through 24 The motion to reconsider is
granted. Having reconsidered the matter , I reverse my ruling to this extent.
G C Exhs 2-S-4 through 2-S-15 is now admitted in evidence
'The Respondent is, and at all material times has been , a joint venture
of Brown & Root , Inc., and Northrop Corporation, for the purposes of
177 NLRB No. 1 I
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Setting
The events with which we are here concerned occurred
at the Manned Spacecraft Center in Houston, Texas.
There is no dispute, and it is found, that the following
individuals are, and at all material times have been,
supervisors within the meaning of Section 2(11) of the Act
and agents of the Respondent: Harry Hutchens, project
manager; Nollie Agee, his special assistant; Socrates
Lamprose, supervisor; N.L. Novak, group supervisor
(cryogenics); Dr. James L. Schwornick, sectional
supervisor (analytical chemistry laboratory); and Paul
Moreno, group supervisor (technical requirements group).
The events described herein took place in the context of
two other Board proceedings involving this Respondent.
One was a formal hearing before the Board in a complaint
proceeding, Case 23-CA-2948, which was held toward the
end of April 1968. The other was a formal hearing before
the Board in a representation matter, Case 23-RC-3119,
which lasted from April through late September 1968.
The Respondent maintains a practice of rating the job
performances of its employees every 6 months.
C. The Discrimination Against Marie Carrejo
1. Events
Marie Carrejo has been working for the Respondent as
a clerk-typist since June 1965. At each 6-month periodic
merit review prior to April 1968 she had always received a
wage increase. These ranged from 8 to 15 cents per hour
increases . Her December 1967 Performance Review
Analysis Form described her work as:
clerical support for the [Crew System Laboratory]
department, specifically in the area of Test Procedures
in support of the Systems Test Branch. The work
includes typing, filing, reproduction and general clerical
functions. She also assists in the general department
clerical work on fill in overload work. She requires little
or minimal guidance with her work.
Her grades were:
Technical Capability - Excellent, 17 (highest is 20)
Quality of Work - Excellent, 16 (highest is 20)
Quantity of Work - Excellent, 10 (highest is 15)
Safety - Excellent, 4 (highest is 5)
Responsiveness & Flexibility - Outstanding, 9 (highest
is 10)
Communications & Work Relations - Outstanding, 13
(highest is 15)
Attitude & Attendance - Marginal, 9 (highest is 15)
Composite Grade - 78
The following comments were included:
The general performance is excellent. In the areas of
responsiveness , flexibility, communications and work
relations, the work is outstanding. The quantity of work
could show improvement by better job attendance.
Under the question: "How can he best improve his
performance and/or value to the project?" appeared:
She can improve the quality of her work by closer
attention and increase the quantity considerably by
improving her attendance and punctuality.
The review was signed by Lamprose and Hutchens.
performing a laboratory test contract with NASA, valued at more than
$10 million at the Manned Spacecraft Center in Houston , Texas.
In January 1968 Carrejo hurt her foot and was absent
on sick leave for from 3 to 5 days. About this time, her
children had to have their tonsils removed. Carrejo told
Lamprose that she "would be out pretty much from work
and was concerned that it might affect [her] next
review." Lamprose responded: "This is a real emergency,
and let me assure you it will not affect your review."
Thereafter she was absent on leave without pay about 8 or
10 days because of her childrens' illness.
In April' Carrejo was stationed on the first floor of
Building 29, in Lamprose's outer office. Her duties
consisted of miscellaneous typing (correspondence,
reports, etc.), helping Lamprose's secretary, Virginia
Siggins, in answering the telephone, and helping with
typing overloads from other sections.
As noted above, toward the end of April a formal
hearing was being conducted in a complaint proceeding
against the Respondent in Case 23-CA-2948. On April 24
Carrejo appeared at that hearing pursuant to a subpena
issued by the General Counsel and testified as a witness
for the General Counsel.' When she had completed her
testimony that day, she was excused by the Trial
Examiner over the objection of the Respondent's attorney.
Thereafter, the Respondent's attorney directed her, as an
employee of the Respondent, to remain. She was recalled
as a witness by the Respondent on April 26. At one time
during the hearing, the Respondent's attorney directed her
to sit next to him at the counsel table "to assist me in my
presentation of this case." She declined to do so (see
Appendix A). All told, she was absent from work because
of the hearing in Case 23-CA-2948 for 3 or 4 days, for
part of which she was paid by the Respondent.
Regarding what happened immediately following the
hearing, Carrejo testified without contradiction:
Q. [By Mr. Levy]: At such time as you returned to
your job ... after the ... hearing that you testified in .
where was your work station?
A. I had moved to the second floor of the same
building.
Q. Who was your immediate supervisor in that area
on the second floor?
A. Paul Moreno.
Q. Did Mr. Moreno have any title that you know of?
A. He is a group supervisor under Nollie Agee.
Q. [By the Trial Examiner]: I believe you testified on
cross examination that the entire group [the technical
requirements group under Moreno] was moved to the
second floor.
A. Before I moved to the second floor, I was directly
under Mr. Agee' and I was working downstairs, and he
told me he was going to keep me down there. And then
when I came back from the hearing, he said he decided
to put me in a group, the technical requirements group,
and that I would no longer be with him but I would be
with the engineers and Mr. Moreno.
'All dates hereafter refer to the year 1968, unless otherwise noted
'Her testimony in that case is summarized in the Trial Examiner's
Decision , TXD-506-68, issued August 28, 1968 , currently pending before
the Board on exceptions
'This is corroborated by Carrejo's June merit review , which bears date
of June 5, 1968 , and states that Carrejo had then been under Agee's
supervision for 3 months. The Respondent apparently agrees, for its brief
states "This change of assignment to Agee occurred in March , prior to the
hearing . . She was not working for Mr Lamprose at the time she was
transferred from the first floor to the second floor "
BROWN & ROOT-NORTHROP 3
Q. [By Mr. Paine] . See if you can try to
remember, Mrs. Carrejo, how long after the hearing
was it before you were moved upstairs?
* * * * *
A. It was within a day or two after the hearing. It
was either the first day that I came back to work or the
first afternoon.
Carrejo was thereafter stationed on the second floor of
Building 29, worked for the Technical Requirements
Group, and her immediate supervisor became Moreno.
Her duties were answering the telephone, typing
procedures written by engineers in the Technical
Requirements Group, and similar tasks. She no longer
assisted Siggins.
About 2 weeks after the hearing ended, Carrejo
happened to be in the parking lot when she was accosted
by Dr. Schwornick, under whose supervision she had
previously worked. According to Carrejo's undenied and
credited testimony:
He asked me what was wrong with everybody, with
everyone in the office, what - why were all the girls
quitting.
I said I didn't know.
And then Dr. Schwornick asked me when I was
going to quit.
I told him I didn't think I was going to quit; I
probably would just wait until they fired me because I
was sure it wouldn't be too much longer before they did
something like that.
He said, "Would you consider taking a transfer back
to my office and working for me?" He said, "You
worked for me before and I was real pleased with your
work, and I would like to have you."
I asked him if he was sure that would be all right
because I was sure he would get in quite a bit of
trouble if he did.
He said well, from what he had heard, Mr. Agee,
Nollie Agee regards me as his problem and I could not
expect any help from Mr. Lamprose, but it would not
be too much longer before they did try to do something
about it.
I said, "Could you tell me exactly what was said to
you?"
* * * * *
general functions.
Her grades were:
Technical Capability - Excellent, 17
Quality of Work - Excellent, 15
Quantity of Work - Satisfactory, 7
Safety - Satisfactory, 3
Responsiveness & Flexibility - Satisfactory, 7
Communications & Work Relations - Satisfactory, 8
Attitude & Attendance - Marginal, 8
Composite Grade - 65
The following comments were included:
Evaluation is based on the fact that Miss Carrejo had
held the same position for 3 years and is in the upper
rate range for a clerk-typist. Absences which were
mentioned in the last review have doubled during this
review period.
After the question "How can he best improve his
performance and/or value to the project?" appeared: "By
improved work habits, i.e., better attendance, closer
observance of working hours and less visiting." The review
was signed by Agee, Lamprose, and Hutchens.
Early in August Moreno requested Carrejo to type a
resume for him. She refused, explaining that if she did so
she might be criticized by Moreno's superiors. According
to Carrejo's undenied and credited testimony, the
following conversation then occurred:
He said, "This is strictly off the record, but I want
to tell you to be very careful because I have gotton the
word, as some of the other supervisors have, that Mr.
Lamprose and Mr. Agee have instructed me to turn in
daily reports on you and they are out to see everything
that you do, and keep an extra close check because of
that National Labor Relations hearing that you went
to.,,
* * * * *
I said, "Yes, I kinda had a suspicion that they were.
A lot of times it kinda gets to you, and at other times
it didn't bother too much."
He said he had to admire me for standing up to it,
that not everyone would, but he said, " Be on your toes
and be very, very careful."
Carrejo was still employed by the Respondent at the
time of the hearing herein, although the exact location of
her work station at that time is not clear on the record.
He told me that all he could say, because of the
hearing and the testimony I gave, Mr. Lamprose and
Mr. Agee were not pleased with me at all and I should
think about trying to transfer and that might save my
job.
He asked me if I thought it would be best for him to
say something to Mr. Lamprose about me transferring
or to wait until they tried to do something about my
job.
I told him that was up to him and I hoped he
thought about it before he did it.
Late in June Agee summoned Carrejo to his office,
saying: "It's review time." He told her that she would not
receive any wage increase. When she asked the reason,
Agee replied that it was because of her absenteeism. He
then handed her the June 1968 Performance Review
Analysis Form which described her work as:
Performs clerical support for the Engineering Services
Section which includes typing, filing, reproduction and
2. Contentions of the parties
The complaint alleges and the General Counsel
contends that on or about April 29 the Respondent
transferred Carrejo "from her job station located on the
first floor of Building 29 . . . to the second floor of
Building 29" and denied her a merit increase on or about
June 21, and "since said dates has failed and refused .. .
to grant said merit raise or to return [her] to her former
duty station because she gave testimony under the Act."
It is alleged that this conduct violates Section 8(a)(1) and
(4) of the Act.' The General Counsel, in his brief, points
out that "prior to the hearing [Carrejo] had been assured
by Agee that she was going to remain on the first floor."
'there is no allegation or showing that Carrejo engaged in union
activities, nor is there any contention that the Respondent's conduct
directed at her violated Sec 8(a)(3) of the Act
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He adds: "Respondent's hostility to Carrejo is graphically
demonstrated in colloquy between Attorney Brown, Trial
Examiner Rosenberg , Counsel for the General Counsel
Tilley and Union's Counsel Lavey [in Case 23-CA-2948,
see Appendix A] . . . Carrejo was severly harassed by
Attorney Brown in that proceeding." Based upon her
discussion with Dr. Schwornick, and her talk with
Moreno, the General Counsel contends: "Respondent
commenced a program of trying to get rid of Carrejo:
first by relocating her job station to an area removed from
Lamprose, and second, by denying Carrejo a raise
whereas before she had always been given one." He
concludes that the only reason for the Respondent's
"sudden decision to move her from the first floor of
Building 29 to the second floor ... [was] because Carrejo
testified in the prior unfair labor practice case."
The Respondent admits in its answer that on or about
April 29 it relocated Carrejo's job station from the first
floor of Building 29 to the second floor of the same
building and has not since then returned her to her former
duty station. However, it contends that the new location
was no less desirable than the former one and the work
there no more onerous, and further that "as the new
Engineering Services Section expanded, Carrejo and
others in the Section were moved to the second floor
where she was then assigned to the newly created
Technical Requirement Group under Mr. Moreno
(subordinate to Agee and Lamprose)."' As to the
Respondent's failure to grant her a merit increase, the
Respondent at the hearing admitted that she has not
received a raise since April 1, 1968. It points out in its
brief that there was "ample reason" for this, namely, as
Agee told her, "because of her absenteeism." Regarding
Dr. Schwornick's conversation with Carrejo, the
Respondent contends that "he was not speaking for
himself; and he did not in any way identify the source or
basis for his statement of the mental attitude of Lamprose
and Agee. He was repeating a rumor." It adds that this
incident "is not evidence that Lamprose and Agee gave
her a dishonest evaluation in June of 1968 because she
had ... testified [in Case 23-CA-2948]." With respect to
Carrejo's talk with Moreno, the Respondent notes that
Moreno "was not even working for the [Respondent]
during the period December 1967 to June 1968."
Furthermore , argues the Respondent in its brief: "this
conversation . . . occurred in early August of 1968, some
two months subsequent to the June 1968 evaluation."
By way of rebutting the Respondent's defense that
Carrejo was denied a wage increase because of her
absenteeism , the General Counsel emphasizes that in
January, before her testimony in Case 23-CA-2948,
Lamprose had assured her that it would not affect her
review.
3. Conclusions
a. The relocation
It would appear from Carrejo's testimony that she was
not moved alone. Thus, she testified on cross-examination:
Q. [By Mr. Paine] : Were you moved from one desk
to another before or after the June review?
A. Was I moved before or after the June review?
'The Respondent also claims that , while the hearing in Case 23-CA-2948
was in progress and before Carrejo was moved to the second floor , she was
"moved from one desk on the first floor of Building 29 to another desk in
order to accommodate a new girl ." This is not entirely accurate. What
happened was that her desk was moved "just a matter of a desk space"
within the same room
Q. Yes, ma'am.
A. Oh, it was before, because when I came back
from the hearing we were moving upstairs.
Q. So you testified you were moved one desk space
on the first floor and subsequently to the second floor
with the group , isn't that correct?
A. Yes. [Emphasis supplied.]
From the above it is concluded that Carrejo was moved to
the second floor with others, the exact identity of these
others and the circumstances of the group move being
somewhat obscure and not clearly defined on the record
In any event, she was not singled out for an individual
move. Moreover, there is neither allegation nor contention
that her new location was less desirable than her former
work station, or that her duties became more burdensome
as a result of the relocation.
Section 8(a)(4) of the Act bars discrimination against
employees who, like Carrejo, "give testimony under the
Act." The purpose is, of course, to protect the integrity of
Board proceedings, and to assure that employees'
willingness to participate in them freely is not inhibited.'
However where, as here, the employee who testifies suffers
no substantial detriment or prejudice, it cannot reasonably
be said that reprisals were visited upon her or that she was
humiliated or harassed. The record herein does not justify
or support a finding that, because Carrejo was moved
after testifying, she or other employees were thereby
rendered less willing to testify before the Board in the
future.
Under the circumstances here present, it is accordingly
found that, regardless of what the Respondent's motive
may have been in moving Carrejo from the first to the
second floor, it did not thereby violate Section 8(a)(1) or
(4) of the Act.
b. The failure to grant a wage increase
Turning now to the merit reviews, the picture presented
is that of an employee of about 3 years' standing, who
periodically qualified for merit increases , and who,
according to her December 1967 Performance Review,
"require[d] little or minimal guidance with her work." In
January Carrejo, whose foot injury had caused some
absence on sick leave, told Lamprose she might have to be
absent some more due to her childrens' tonsilectomies.
Lamprose assured her this was "a real emergency" and
would not affect her review. She was absent again for 3 or
4 days because of the hearing in Case 23-CA-2948. It is
true that she testified: "for three months I didn't get a
whole pay check," but she also testified:
Q. With the exception of your foot and your
children, did you ever, up until June of 1968, have
occasion to miss any other kind of work?
A. You mean between December and June?
Q. Yes, ma'am.
A. Just the time I spent at the hearing.
From this uncontroverted and credited testimony it is
found that all of Carrejo's absences between her periodic
review in December 1967 and that of June 1968 were
either of the kind which Lamprose had promised not to
hold against her, or were due to her presence at the
hearing in Case 23-CA-2948.1° It is worthy of note that in
her June 1968 review she was rated lower (in comparison
'Hoover Design Corporation . 167 NLRB No 62, enforcement denied in
vertinent part 402 F 2d 987 (C.A. 6)
"During oral argument , counsel for the Respondent stated : "We had the
BROWN & ROOT-NORTHROP
to her previous review) in every category except one, even
in such categories as "Safety" and "Communication &
Work Relations ." Under all the circumstances, including
the fact that Carrejo had never before been denied a
periodic raise, I am convinced that the Respondent's
explanation that Carrejo's absenteeism cost her a merit
increase in June 1968" is not candid, but rather
constitutes a pretext seized upon to conceal the
Respondent's true reason.
What, then, was the real motivation behind the
Respondent's refusal to grant Carrejo a wage increase in
June 1968? The answer can be found by referring to the
conversations which Carrejo had with Dr. Schwornick in
May" and with Moreno in August." These demonstrate
beyond a doubt that the Respondent's evaluation of
Carrejo's job performance in June 1968 was downgraded,
to her detriment, in substantial part because of her
testimony in Case 23-CA-2948. Thus an appraisal free of
discrimination, which she otherwise would have been
accorded, was denied her. This discriminatory conduct
violated Section 8(a)(1) and (4) of the Act.
D. The Discrimination Against David E. Baier
1. Events
David E. Baier has been working for the Respondent as
a cryogenic technician since November 1965. In February
1967 the Union notified the Respondent that Baier, along
with approximately 50 others, was a member of the
Union's in-plant organizing committee. In June 1967
Baier's work performance was evaluated and he received a
merit increase. The same thing happened in December
1967, at which time his Performance Review Analysis
Form described his work as:
record here of her absence . We had it and could offer it" The
Respondent ' s failure to offer these records in evidence gives rise to a
presumption that the records corroborate Carrejo
"No other alleged misconduct by Carrejo was developed by convincing
evidence.
"Schwornick 's statement reasonably conveyed to Carrejo a warning of
reprisal because of her testimony and thus a threat inhibiting similar future
conduct on her part However , as it was not encompassed within the
allegations of the complaint , no finding of an independent violation of the
Act will be based thereon. Schwornick 's statement further constitutes an
admission against interest from which it is also found that Agee and
Lamprose resented Carrejo's role at the hearing in Case 23-CA-2948.
In arguing that no probative weight should be given to this incident, the
Respondent cites N.L.R.B. v. Lowell Sun Publishing Company, 320 F.2d
835 (C A l). In that case, the court of appeals refused to enforce part of
the Board's decision in 136 NLRB 206. With due respect for the court of
appeals, I, as a Trial Examiner , am bound "to apply established Board
precedent which the Board or the Supreme Court has not reversed."
Insurance Agents' International Union, AFL-CIO (The Prudential
Insurance Company of America), 119 NLRB 768, 772-773; Novak
Logging Company, 119 NLRB 1573, 1575-76; and Scherrer and Davisson
Logging Company, 119 NLRB 1587, 1589 . But compare Stanley Air
Tools, Division of the Stanley Works, 171 NLRB No. 48, where the Trial
Examiner relied upon the decisions of the United States Courts of Appeals
for the District of Columbia and Fourth Circuits , rather than the Board
decisions which those courts of appeals had reversed , and the Board
adopted the Trial Examiner 's Decision without comment.
"I deem it unnecessary to decide whether , as the Respondent contends,
Moreno was not working for the Respondent during the December 1967 -
June 1968 period. The length of time he had worked there is, in my
opinion , immaterial . His statement to Carrejo in August 1968 constitutes
an admission against interest that the preoccupation of Agee and
Lamprose with Carrejo's conduct at the hearing in Case 23 -CA-2948-which
was described by Dr. Schwornick to Carrejo in May - still continued
unabated through August.
5
Mr. Baier is certified to operate all duty stations in the
Cryogenics system. He performs maintenance on all
equipment, and operates all equipment required for the
transfer and storage of cryogenic liquids and gases. He
has also installed cryogenic piping during system
modification. His work is accomplished with an average
amount of supervision.
In order better to understand this, it should be explained
that, at that time and at all times since, NASA required
individuals who manned duty stations in the Cryogenics
system during a manned test in the Space Environmental
Simulation Chambers to be certified for the particular
station involved. Certification resulted only from passing
examinations conducted by NASA, and lasted only for a
period of 6 months; thus the candidate had to be
reexamined in each category periodically. There were six
such categories; Baier was certified in all six at that time.
To return to his December 1967 Performance Review
Analysis Form, he was graded as follows:
Technical Capability - Excellent, 17 (highest is 20)
Quality of Work - Excellent, 17 (highest is 20)
Quantity of Work - Excellent, 10 (highest is 15)
Safety - Excellent, 4 (highest is 5)
Responsiveness & Flexibility - Excellent, 8 (highest is
10)
Communications & Work Relations - Excellent, 11
(highest is 15)
Attitude & Attendance - Excellent, 12 (highest is 15)
Composite Grade - 79
The following comment was included: "Mr. Baier
performs his duties in an excellent manner and with
quality workmanship." The question: "How can he best
improve his performance and/or value to the project?"
was answered: "His performance can be improved with
additional outside training and with added flexibility
towards adjusting to change in conditions or
assignments."
In April 1968, as previously mentioned, a formal
hearing in Case 23-RC-3119 began. At the outset, the
Union subpened Baier and three other employees of the
Respondent and caused them to attend the hearing to help
the Union's counsel and to give him certain information
from time to time. They continued to do so throughout
the hearing. In May, at a time when Baier had not yet
been called as a witness, the Respondent's counsel in that
case stated on the record:
I want to point out that we have, also, besides Mr.
Hutchens, in the courtroom at least three of the
technical employees, who likewise have been here,
under subpoena, for some three weeks, and have been,
during that period, kept from the performance of their
duties. And while their positions are not quite as
significant to the overall program as the position of Mr.
Hutchens, they also are significant, and they are
needed, and their services cannot be spared indefinitely
from the Center. Since they are here today, under
subpoena, as witnesses , we suggest that we proceed with
the testimony that they were called to give, and that
they then be excused from this proceeding, to return to
their duties.
* *
I'd like to state that we will cooperate with counsel
in making available any of the employee witnesses that
are needed at the lime that Mr. Lavey [attorney for the
Union] wants to put them on the stand. We will also
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entertain a request from counsel, on an informal basis,
to make certain people available to him, to a very
limited extent, for consultation, even though he is not
putting them on the stand. But, we cannot further
permit these men who have been in attendance here
consistently in this proceeding to spend this time away
from their work. They have not been here as witnesses;
they have not testified at the first opportunity, when
there is not another witness on the stand. Mr. Lavey
does not see fit to proceed with these people that he
subpoenaed to be here as witnesses. He has held them
here for three weeks. He certainly has no excuse for not
being prepared to present their testimony.
So, I want everyone to understand that their further
excuse from their duties will not be granted, except
where they are needed, as indicated, to testify as
witnesses; or where we have made special arrangements
with counsel for their availability to him for
consultation.
MR. LAVEY: Regarding this, Mr. Hearing Officer, I
want to state unequivocally that these three individuals
in this hearing room, Bill Terrell, Vern Duggan [sic],
and Dave Buyer [sic] are under subpoena, and I am not
going to release them from their subpoena. And if Mr.
Brown wants to direct any action against them, he may
take it; but, however, I want him to know that if he
takes any disciplinary action because of the subpoena
that we are going to file charges.
On May 28 the Respondent's attorney stated on the
record:
This morning before we get under way Mr. Hutchens
has asked me to state as we have stated before. It is
necessary to the operations of the company that these
technicians, Mr. David Bear [sic], Mr. Billy Bob
Terrell, Mr. Gerald Caldwell, and I am excluding from
that Mr. Vernon Dugan for the reason that he has
resigned, and only for that reason, are needed by the
company for the performance of their duties at the
Mann [sic] Spacecraft Center. We cannot - we don't
have people out there on our payroll that we don't need
to perform that work and these people are needed and
cannot be spared. We have previously advised the union
and these men of that requirement and have directed
them to return to their posts. They have ignored that
directive and we are now advising them that we are
undertaking to recruit replacements to fill their
positions on a permanent basis. We hope that they will
return to their posts before replacements are employed.
If they don't return to their posts before they have
permanently [sic] replaced they are on notice that their
positions have been assigned, or will be assigned to such
permanent replacements.
Upon motion of the Union's attorney, which the Hearing
Officer granted, Brown was then excluded from the
hearing . Baier continued to attend sessions of the hearing
until its close late in September . Each morning during this
period Baier telephoned to N. L. Novak, his immediate
superior, and reported whether the hearing was going
ahead that day, or if it was not, that he would be in to
work. Baier missed a total of more than 30 working days
because of his attendance at the hearing. With the
exception of time he missed to attend the hearing, Baier
was not absent from work between December 1967 and
June 13, 1968. The events related hereafter occurred
against the backdrop of the hearing, and presumably
during times when it was in recess.
Sometime in May or early June Baier and five other
employees were called upon to change a motor during a
test. On June 14 Hutchens wrote to Novak about this, as
follows:
My congratulations to you and your group for the
excellent performance evidenced on the occasion of the
changing of the helium skid drive motor during the
LTA test. Particularly, I want to say thank you to
Messrs. Radloff, Baier, Kilpatrick, Clore, Earle and
Lawrence who were personally involved in that
operation. To the commendation of Mr. Gist, I wish to
add my personal "well done". It is through activities
such as these that BRN is endeared to the hearts of the
MSC Management and makes for itself a place of
particular note. By this accomplishment, you have
shown that your contributions to the test programs for
the Apollo were particularly needed and especially
significant. Please accept my sincerest appreciation for
your contribution and your efforts in this particular
case. [Emphasis supplied.]
I know that you are looking forward with a great deal
of anticipation to the 2TV-1 test program and the
opportunity that you may have to contribute further
significant accomplishments to the Apollo program. I
trust that the circumstances will not be such as to
demand from you a repeat performance of this LTA8
activity. Nevertheless, I know that whatever comes you
will be prepared; for you are a ready and able team.
Thanks again,
/s/ Harry Hutchens
Harry Hutchens
On June 13 Novak handed Baier his Performance
Review Analysis Form. On it, Baier's work was described
as follows:
Mr. Baier is certified to operate all test duty stations.
He operates all equipment required for the transfer,
storage and conversion of cryogenic liquids and gases.
His work is accomplished with an average amount of
supervision.
His grades were as follows:
Technical Capability - Excellent, 17
Quality of Work - Excellent, 17
Quantity of Work - Satisfactory, 9
Safety - Satisfactory, 3
Responsiveness & Flexibility - Satisfactory, 6
Communications & Work Relations - Satisfactory, 8
Attitude & Attendance - Satisfactory, 10
Composite Grade - 70
Under comments appeared the following:
Mr. Baier performs his duties in a satisfactory manner,
but lacks enthusiasm - His performance has degraded
during this six month period.
The question: "How can he best improve his performance
and/or value to the project?" was answered:
Mr. Baier can improve his performance with more
initiative and responsiveness. His attitude toward the
project, company and supervision needs introspective
evaluation and improvement.
The review was signed, among others, by Novak and
Hutchens. What happened then is described in Baier's
undenied and credited testimony on direct examination:
A. (Continuing) Mr. Novak gave me my review and
I noticed it had a notation: "Had bad attitude toward
project manager of the company." And I noticed I had
been down-graded in a number of categories, including
attendance.
BROWN & ROOT-NORTHROP
Q. Excuse me. Down-graded from what?
A. From the "excellent" column.
Q. Please continue. I'm sorry.
A. And I asked him about the "poor attitude" and
he asked me how I got interested in the union and
asked me if I was in it last year. I told him I was on
the in-plant committee.
He asked me what we expected to gain by getting
one in, and if I thought it would improve relations
between Brown & Root-Northrop and NASA.
A. I told him I didn ' t know.
* * * * *
He said that he had discussed my absence with Mr.
Leecraft and what had happened to Mr. Brown at the
hearing and said the general feeling was I could have
gotten out of it if I had wanted to.
And He went on to say that sometime after college,
while he worked with Union Carbide, he got involved
with some union business , he didn't explain what it
was -
* * * * *
He said he got involved with some union business
and said he didn't have a soft spot for any organization.
He said he had been talking to some of the fellows in
the group about if I had been talking union on
company time, and he said that they said I hadn't. And
he said that was good to hear. He said, "You know,
you are not supposed to talk union on company
property."
I told him no, I didn't think that was true, that I
could talk union before work, after work, and during
my thirty-minute lunch break.
And he said, "Well, whenever things get too tough
for me, I always start looking for another job."
* * * *
A. I asked him why I had been graded down this
time when last time I had been graded in the excellent
group, in the excellent column, everything in the
excellent column. And he said because I had been
absent so much and that it was not official company
leave.
Q. Anything else said that you can recall during this
conversation either by you or by Mr. Novak?
A. He said that my work had slowed down; I hadn't
been working as fast as I had before.
I told him I didn't think I had slowed down any. I
thought I had worked just as fast and as hard as I did
before.
He said when he came down in the shop and saw a
group of fellows, I was always in the group.
He closed the review by saying: "In view of that,
that is the reason you didn't get a raise."
On cross-examination he elaborated:
Q. Now, you testified that when you talked to Mr.
Novak and went over the June review - And I am
quoting the best I remember your testimony, that:
Novak supposedly told you there was a general feeling
that you could have gotten out of it, referring to the
hearing , I assume.
A. That's right.
* * * *
7
Q. (By Mr. Paine) Were those his words?
A. To the best of my knowledge, it was.
Q. Was he referring to the hearing?
A. To the best of my knowledge, yes.
Q. And you also recall that he said: "Don't talk
union on company property"?
A. Yes, sir
Q. And he also said absence and your work had
slowed down, you were not working hard enough was
his comments why you didn't get a raise.
A. To the best of my knowledge.
Baler did not receive a merit increase. After the interview
described above, Novak added the following notation on
the evaluation form:
Mr. Baier stated that he was unaware that his work had
slipped and that if it had he would certainly try to bring
it back up to par. He later returned and asked for a
copy of the Review for his Files.
2. Contentions of the parties
The complaint alleges and the General Counsel
contends that the Respondent "denied a merit raise" to
Baier on or about June 13 and since then "has failed and
refused . . . to grant said merit raise because [Baier]
joined or assisted the Union or engaged in other activities
for the purpose of collective bargaining [and] ... because
he gave testimony under the Act." It is alleged that this
conduct violates Section 8(a)(1), (3), and (4) of the Act. In
his brief, the General Counsel points out that Baier "was
directed by Respondent to return to work from the
representation hearing or suffer the consequences," and
that at the review interview "Novak lost little time in so
amply demonstrating Respondent's true motivation for
denying Baier a merit raise." The General Counsel also
notes, in his brief, that Baier had received a written
commendation.
The Respondent admitted, at the hearing, that Baier
has received no wage increase since April 1, 1968.
However, it maintains in its brief that "legitimate
nondiscriminatory reasons exist for Mr. Baier's failure to
obtain a wage increase." These are, according to the
Respondent, "because (i) he had been absent so much, (ii)
that his work had slowed down, (iii) that he had not been
working as fast as he had before and (iv) that when
Novak came in the shop and saw a group of fellows
standing around, Baier was always in the group." The
Respondent also comments, in its brief, that "during the
period December 1967 to June 1968 Baier failed to pass
the lunar plane control test which was an absolute
requirement . . . for Baier to be certified to operate this
particular duty station during a manned test in the Space
Environmental Simulation Chambers." The Respondent
further remarks, in its brief, that "Mr. Baier has little or
no knowledge with respect to the training programs
conducted by the Company during the period while he was
absent attending the hearing, and admittedly he made no
effort to make up for the instruction missed during the
extensive period of absence." Finally, pointing out that
Baier merely attended the hearing in Case 23-RC-3119
and had not yet testified therein at the time he was denied
a wage increase, the Respondent's attorney at the hearing
expressed doubt that such activities came within the ambit
of conduct protected by Section 8(a)(4) of the Act.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Conclusions
There can be no doubt that the Respondent was well
aware of Baler's prounion activities. And the
Respondent's antipathy to the Union is shown by several
instances in the past when one of the firms comprising the
Respondent herein has been found to have committed
unfair labor practices ." It is not without significance, also,
that Baier' s performance ratings were lowered in every
category except two, even in such categories as safety.
Moreover, the language used in the letter of
commendation quoted above seems to me to contrast
strikingly with that of the June 1968 merit review (that
Baler "lacks enthusiasm" and "his attitude toward the
project, company, and supervision needs introspective
evaluation and improvement" and that "his performance
has degraded") - although these two documents were
issued almost simultaneously and both were signed by
Hutchens. In addition, the Resp_ondent's proclivity for
downgrading the job evaluation- of employees whose
protected activities displeased it has already been
demonstrated in Carrejo's case . The most revealing fact of
all is the manner in which Novak brought up the subject
of Baier's union activities at the very time he was
discussing the merit review, and demonstrated thereby the
Respondent' s pique because Baier continued to attend
sessions of the hearing instead of working when, in the
Respondent 's view , he "could have gotten out of it." In
this same conversation , Novak interfered with, restrained,
and coerced Baier in the exercise of rights protected by
Section 7 of the Act, as developed more fully below.
Insofar as Novak indicated that Baier was downgraded in
substantial part because of his extended absence , it is to
be recalled that Baler's only absences during the period in
question were to attend the hearing in Case 23-RC-3119. I
am convinced that the General Counsel has proved a
prima facie case that the reasons given Baier by Novak
for lowering his evaluation were , in substantial part,
pretexts to cloak the true reason , and that the true reason
was Baier' s union activities, especially his aid to the
Union's attorney during the hearing in Case 23-RC-3119.
As against this prima facie case, what are the
Respondent' s defenses? First, the Respondent showed
during Baler' s cross-examination that "Although Vernon
Dugan was no longer employed by the Company, the
other two employees , Terrell and Caldwell [who attended
the hearing in Case 23-RC-3119 with Baierl were
employed during the June 1968 evaluation period and ...
each had received wage increases ." I have considered this
factor, but deem it insufficient to overcome the strong
prima facie proof of discrimination described above. The
Respondent's remaining defense is "that during the period
December 1967 to June 1968 Baier failed to pass the lunar
plane control test." This is based on Baier's admission on
cross-examination , as follows:
Q. (By Mr. Paine) Did you take any examinations
during the Spring of 1968 in connection with the
certification for duty stations?
A. During the Spring?
Q. Yes, sir, during the period January to June of
1968.
"Ozark Dam Constructors , 86 NLRB 520, enfd . 190 F.2d 222 (C.A. 8),
rehearing denied 206 F 2d 73 (C.A. 8); Brown A Root , Inc., 99 NLRB
1031, enfd . 203 F .2d 139 (C.A. 8), Supplemental Decision , 132 NLRB 486,
enfd . as modified 311 F.2d 447 (C A. 8), modification denied 318 F.2d 543
(C A. 8), clarification denied 327 F .2d 958 (C.A. 8), Second Supplemental
Decision , 151 NLRB 241; and Brown & Root . Inc , 112 NLRB 1068.
A. I don 't recall . I was taking some tests but I don't
recall whether it was before June or after June.
Q. Did you take any tests in January of '68?
A. In that six-month period, I believe we took a test
somewhere in there . I am not positive of the date.
TRIAL EXAMINER: I can't hear you. Will you speak
up.
A. Prior to June on the certification tests, we were
given tests , but I don't have any idea what date it was
given.
Q. (By Mr. Paine) Do you remember taking a lunar
plane control station and gear drive operator test?
A. Yes, I do.
Q. Do you remember whether you passed or failed
that test?
A. I failed - Let's see.
THE WITNESS: I didn't finish.
Q. (By Mr. Paine) All right, sir. Go ahead.
A. I believe I failed that one. I am not sure.
It is not clear that this failure occurred before the
evaluation was made in June 1968 . At least, if it did, the
Respondent was unaware of this, for the evaluation states
unequivocally: "Mr. Baier is certified to operate all test
duty stations" (emphasis supplied) and in the evaluation
interview Novak did not mention the failure. Significantly,
nowhere in the record - neither in the opening statement
at the beginning of the hearing herein, nor in oral
argument (summation) at the close of the hearing, nor in
its brief, does the Respondent claim that this test failure
contributed to Baier' s downgrading in his June 1968
review . It is clear, and I find , that the failure played no
part whatsoever in Baier' s downgrading in June 1968.
Accordingly, this is no valid defense to offset the General
Counsel 's prima facie case of discrimination.
Under all the circumstances , it is concluded that the
Respondent' s evaluation of Baier's job performance in
June 1968 was downgraded , to his detriment, in
substantial part because of his union activities,
particularly his help to the Union's attorney during the
hearing in Case 23-RC-3119. Thus an appraisal free of
discrimination , which he otherwise would have been
accorded, was denied him. This discriminatory conduct
violated Section 8(a)(1) and (3) of the Act. In this posture
of the case , as it would not materially affect the remedy
recommended hereafter , I need not and do not determine
whether this conduct was also violative of Section 8(a)(4)
of the Act.
E. Interference, Restraint , and Coercion
1. Contentions of the parties
The complaint alleges, and the General Counsel
contends , that on or about June 13 Novak "interrogated
an employee concerning his union activities and support of
the Union" and "told an employee that he had questioned
other employees to find out if said employee was engaging
in Union activities, thereby creating the impression of
surveillance of said employee ' s Union activities." Both
allegations are based upon what Novak said to Baier on
June 13 during Baler ' s merit review interview , described
above . With regard to Novak 's statement to Baier "You
know you are not supposed to talk union on company
property," the General Counsel states in his brief:
BROWN & ROOT-NORTHROP
It is not contended that Respondent was maintaining an
invalid no-solicitation rule, but rather that Novak, in
his creation of his impression of surveillance of Baier's
Union activities was seeking to further coerce Baier by
this incorrect statement of the law.
The Respondent's attorney, referring to the
Novak-Baier talk on June 13, argued at the close of the
hearing:
We do not have interrogation about union activites. But
we have discussion of the conflicting views of these two
individuals about the merits of the union which is
clearly within the free speech provision of the Act.
2. Conclusions
In my opinion , Novak' s questions to Baier concerning
how Baier became interested in the Union, whether he was
in it "last year" and what the prounion employees
expected to gain by voting the Union in, went beyond
permissible free speech protected by Section 8(c) of the
Act. In the context of other unfair labor practices found
herein , it is concluded that the Respondent thereby
coercively interrogated Baier, in violation of Section
8(a)(1) of the Act.
The remaining allegation of violation of Section 8(a)(1)
is based on the General Counsel ' s contention that, during
the same interview , Novak informed Baier that he had
made inquiries of Baier's fellow employees to ascertain the
extent of Baier ' s union activities , thereby creating the
impression of surveillance . I cannot agree . A careful
reading of Baier's testimony shows that Novak disclosed
he had questioned other employees only as to whether
Baier "had been talking union on company time."
(Emphasis supplied .) The investigation thus revealed
appears to have been limited to Baier's conduct during
working hours , a matter which of course an employer is
free to look into. And while it was followed by what may
well have been a threat - "you are not supposed to talk
union on company property" - no threat is alleged in the
complaint and the General Counsel specifically disclaimed
in his brief any attempt to prove the existence of an
invalid no -solicitation rule. It is accordingly found that the
General Counsel has failed to establish that Novak
created the impression that he had engaged in illegal
surveillance of Baier 's union activities.
Upon the basis of the above findings of fact, and upon
the entire record in these cases, I make the following:
CONCLUSIONS OF LAW
1. Brown & Root - Northrop is, and at all material
times has been, an employer within the meaning of
Section 2(2) of the Act, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Union, United Automobile , Aerospace
and Agricultural Implement Workers of America (UAW),
is, and at all material times has been, a labor organization
within the meaning of Section 2(5) of the Act.
3. By discriminating with respect to the terms and
conditions of employment of Marie Carrejo because she
gave testimony under the Act the Respondent has engaged
in and is engaging in unfair labor practices within the
"See Springfield Garment Manufacturing Company . 152 NLRB 1043,
1046, in which it was held that an employee 's "reasons for sympathizing
with the Union were not a legitimate matter of concern " to the employer
See also Better Val- U Supermarkets of Rockville, Inc., 174 NLRB No.
32, fn 2.
9
meaning of Section 8(a)(4) of the Act.
4. By discriminating with respect to the terms and
conditions of employment of David E. Baier, thereby
discouraging membership in the above-named labor
organization , the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
5. By the above-described conduct, and by coercively
interrogating an employee concerning his union
sympathies and activities, thereby interfering with,
restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
6. The above-described unfair labor practices tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce, and constitute
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
7. It is not necessary to rule upon the contention that,
by discriminating against David E . Baier , the Respondent
has engaged in or is engaging in unfair labor practices
within the meaning of Section 8(a)(4) of the Act.
8. The General Counsel has failed to establish by a
preponderance of evidence that, by creating the impression
that it was engaged in surveillance of its employees' union
activities, the Respondent has engaged in or is engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act, or that by relocating Marie Carrejo's
place of work the Respondent discriminated against her
within the meaning of Section 8(a)(1) or (4) of the Act.
THE REMEDY
As the unfair labor practices found to have been
committed by the Respondent herein and in prior Board
proceedings" are persuasively related to other unfair labor
practices proscribed by the Act, the danger of their
commission in the future is to be anticipated from the
Respondent's past conduct. It will therefore be
recommended that the Respondent cease and desist, not
only from the unfair labor practices found herein, but also
from in any manner infringing upon the rights of its
employees guaranteed in Section 7 of the Act.
It has been found that Carrejo and Baier were
discriminatorily downgraded in their merit reviews in June
1968. Accordingly, it will be recommended that the
Performance Review Analysis Forms prepared in June
1968 for each of them, covering the period December 1967
to June 1968 , shall be expunged from their personnel
records. In his brief the General Counsel requests certain
affirmative relief, including a requirement that the
Respondent shall "pay its employees Carrejo and Baier
their June, 1968, Merit Review raise, together with
interest computed at a rate of 6%." However, in my
opinion the matter of whether either or both of them
would have received merit increases absent discrimination,"
and the exact amount of such merit increases, may
more appropriately be ascertained at the compliance stage
of this proceeding.1e Accordingly it will be recommended
that the Respondent put into effect for Carrejo and Baier
such merit increases as each of them would have received
in June 1968, absent discrimination, and make them whole
for any loss of pay they may have suffered by reason of
"See In . 14, above
"The Respondent does not award such increases automatically.
"American Fire Apparatus Company, 160 NLRB 1318, 1319.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the discrimination against them, by paying to each of
them a sum of money equal to the additional amount, if
any, that he or she would normally have earned from the
date when the June 1968 merit increase would have been
effective until the time it does in fact become effective,
with 6 percent interest. It will further be recommended
that the Respondent preserve and make available to the
Board for examination and copying all records necessary
to determine the amount of backpay due hereunder, and
post appropriate notices.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in these
cases , it is recommended that Brown & Root - Northrop,
Houston, Texas, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees with regard to their
union membership, sympathies, or activities in a manner
constituting interference, restraint, or coercion.
(b) Downgrading the job evaluation of its employees, or
otherwise discriminating against them with respect to
wages , hours, or other conditions of employment, because
they give testimony under the Act, or because they aid or
support International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), or any other labor organization.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Expunge from the personnel records of Marie
Carrejo and David E. Baier the Performance Review
Analysis Forms prepared in June 1968, evaluating their
job performance for the period from December 1967 to
June 1968.
(b) Make whole the above-named employees for any
loss of pay suffered by reason of the discrimination
against them, in the manner provided above, with interest
thereon at the rate of 6 percent per annum.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at the Manned Spacecraft Center, Houston,
Texas, copies of the attached notice marked "Appendix
B.'" Copies of said notice, on forms provided by the
Regional Director for Region 23, after being duly signed
by the Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith."
IT IS FURTHER RECOMMENDED that the consolidated
complaint herein be dismissed, insofar as it alleges that
the Respondent discriminated against David E. Baier
within the meaning of Section 8(a)(4) of the Act; violated
Section 8(a)(1) of the Act by creating the impression that
it was engaging in surveillance of its employees' union
activities; or violated Section 8(a)(1) or (4) of the Act by
relocating Marie Carrejo's place of work.
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - " Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX A
EXCERPTS FROM THE RECORD IN CASE
23-CA-2948
MR. TILLEY [Attorney for the General Counsel]: I
would like for the record to show that Mrs. Carrejo is
excused from this proceeding and from any further
attendance under the subpoena.
MR. BROWN [Attorney for the Respondent]: We would
object to that, your Honor, and ask that she be held under
the subpoena for attendance in this court at any time
needed, in this proceeding.
TRIAL EXAMINER: She is excused. If you think her
presence is needed, you may subpoena her.
MR. BROWN: Mrs. Carrejo -
TRIAL EXAMINER: I -
MR. TILLEY: Speak to the Trial Examiner, will you,
please, sir.
MR. BROWN: I am speaking to Mrs. Carrejo, an
employee of the company. And I direct her to remain in
the room.
MR. TILLEY: She is not in their employment here now.
MR. BROWN: She is an employee and I direct her to
remain.
MR. TILLEY: She is in a federal courtroom and she can
do what she feels like she needs to do.
MR. BROWN: She has her choice.
MR. LAVEY [Attorney for the Union]: What choice is
that, Mr. Brown?
MR. BROWN: She will have to decide that herself.
MR. LAVEY: What choice does she have to decide for
herself?
MR. BROWN: I don't think she has any.
MR. LAVEY: What do you mean by that?
MR. BROWN: I don't care to comment further.
MR. LAVEY: Mr. Examiner, before Mr. Brown
commences his direct examination of Mr. Moore, I would
like the record to please reflect that Mrs. Carejo [sic] is
still present in the courtroom.
MR. BROWN: Would you come over here and sit right
here, Mrs. Carejo [sic]?
TRIAL EXAMINER: Off the record.
(Discussion off the record.)
TRIAL EXAMINER: On the record.
MR. TILLEY: Excuse me. Before we proceed, your
Honor, may I ask if there is any purpose, sir, in taking a
witness that has been called in a federal proceeding and
merely because the Employer has the livelihood of this
BROWN & ROOT-NORTHROP 11
woman hanging over her head , forces her to sit four or
five feet of him rather than sitting in the hearing room
where witnesses and public witnesses ordinarily sit.
MR. LAVEY: I find it very offensive, myself.
MR. TILLEY: I would think it intimidating.
TRIAL EXAMINER: Mrs. Carejo [sic], do you wish to sit
there or do you wish to take a place somewhere else?
MR. BROWN: May I be heard?
TRIAL EXAMINER: All right.
MR. BROWN: I intend to interrogate witnesses about
the same subject Mrs. Carejo [sic] has testified about. I
want Mrs. Carejo [sic], as an employee of the Company,
to assist me in my presentation of this case. I intend to
confer with Mrs. Carejo [sic] with regard to the testimony
being given by other witnesses. I want her to hear that
testimony. I want to let her be confronted directly with
the denials of portions of her testimony which I intend to
offer through these other witnesses. I then want to confer
with Mrs. Carejo [sic] with regard to the details of this,
preparatory to calling her as a witness on the stand.
TRIAL EXAMINER: As a witness for Respondent?
MR. BROWN: Well, I feel, your Honor, that I should be
entitled to call her for cross examination. You have ruled,
however, that, I believe you have ruled, have you not, that
I may not do that?
TRIAL EXAMINER: I have.
MR. BROWN: And, therefore, I am faced with a rather
difficult question of calling her as my own witness, and I
need to confer with her before making a decision whether
I should call her as my witness.
I want to confer with her as I go regarding the details
of this testimony.
MR. LAVEY: I am shocked by that statement of Mr.
Brown to actually order this employee to assist him in the
presentation of Respondent's case. We don't even know if
It's voluntary. It seems to me from the intimidatory
remarks made by Mr. Brown on the record, yesterday,
again , I find this most offensive.
This girl is not a supervisor. It hasn't been proven she
is a supervisor. She doesn't represent management. I
would think whether or not this girl wants to assist Mr.
Brown is her decision . If Mr. Brown is ordering her as an
employee of Brown & Root to in fact assist Mr. Brown,
let him make the order and see if the witness will comply.
But I think this is most offensive and meaningless.
TRIAL EXAMINER: Well, I asked her before, and I will
repeat again, do you care to sit here or do you want to sit
somewhere else?
MRS. CAREJO [sic]: It's kind of crowded over here. I
prefer to sit on the bench.
MR. BROWN: Are you declining to sit here as I asked
you to?
MR. TILLEY: The Trial Examiner is asking the lady
questions -
TRIAL EXAMINER: Keep your voice down now.
This is my courtroom and I have observed this little
lady sitting in the first row yesterday while Mr. Moore
testified. He could look at her and she could look at him.
And I don't think distance particularly helps one way or
the other, so, I think I will rule if the little lady wants to
sit in the first row as she did yesterday, she may.
MR. BROWN: It's your option, Mrs. Carejo [sic], but
you answer what your instructions are.
MR. TILLEY: Excuse me . Did I understand instructions,
and from whom?
MR. BROWN: To sit here and assist me.
* * * * *
MR. BROWN: Mrs. Carejo [sic], will you come up here
and sit while we examine Mr. Lamprose?
MR. LAVEY: I object to that again. I find that very
offensive, Mr. Trial Examiner.
TRIAL EXAMINER: What [sic] if she does not wish to do
so, she need not.
MR. LAVEY: And may I ask you to ask him if he is
going to order her to sit there?
TRIAL EXAMINER: Nobody will order anybody to do
anything in this room except me.
MRS. CARREJO: I was just going to step out for a few
minutes.
TRIAL EXAMINER: Will you be right back?
Mrs. CARREJO: In about five minutes.
TRIAL EXAMINER: Let's take a short recess.
(A short recess was taken.)
TRIAL EXAMINER: On the record.
MR. LAVEY: Mr. Examiner, I think that Mrs. Carrejo
if she desires can sit any place she likes in this courtroom,
and I don't think she has to sit any place Mr. Brown
directs her to sit.
TRIAL EXAMINER: I have already announced she can sit
wherever she wants to, and she is seated where she was
seated before.
MR. BROWN: I am sure, Mrs. Carrejo understands she
is a free agent. I do think she should understand that I
have requested her cooperation in the defense of this case
and have asked her to sit beside me while I examine this
witness for that purpose. If she wishes to decline, she has
that prerogative. She may decline just as long as she
understood, clearly understands that she has been so
requested.
MR. LAVEY: May I ask, Mr. Examiner, with your
permission , of Mrs. Carrejo, if she wants to cooperate
with Mr. Brown and as Mr. Brown stated, she is a free
agent -
TRIAL EXAMINER: Well, let me ask, Mrs. Carrejo, do
you wish to sit next to Mr. Brown and assist in the
conduct of the testimony?
MRS. CARREJO: No, Sir, I do not.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT question our employees about their
union membership , sympathies, or activities in a
manner constituting interference, restraint, or coercion.
WE WILL NOT downgrade the job evaluations of our
employees, or otherwise discriminate against them in
regard to their wages, hours, or other working
conditions , because they give testimony under the Act,
or because they aid or support International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), or any other
union.
WE WILL NOT in any other manner interfere with,
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restrain, or coerce our employees in the exercise of
their right to self-organization, to form, join, or assist
any union, to bargain collectively through
representatives of their own choosing, or to engage in
other mutual aid or protection, or to refrain from such
activities.
WE WILL remove from the personnel files of Marie
Carrejo and David E. Baier the Performance Review
Analysis Forms prepared in June 1968 , evaluating their
job performance for the period from December 1967 to
June 1968.
WE WILL reimburse the above-named employees for
any loss of pay they may have suffered because of the
discrimination against them , with 6 percent interest.
BROWN &
ROOT-NORTHROP
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas 77002,
Telephone 713-226-4296.