Fredeman's Calcasieu Locks Shipyard, Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1973

206 N.L.R.B. 399 (N.L.R.B. 1973)

FREDEMAN'S CALCASIEU LOCKS SHIPYARD 399
Fredeman's Calcasieu Locks Shipyard, Inc. and Inter-
national Brotherhood of Boilermakers , Iron Ship-
builders, Blacksmiths, Forgers and Helpers, Local
79, AFL-CIO. Case 15-CA-4613
October 12, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On April 16, 1973, Administrative Law Judge Lo-
well Goerlich issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of that Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs'
and has decided to affirm,the rulings, findings, and
conclusions of the Administrative Law Judge as mod-
ified below.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(1) and 8(a)(3) of the
Act. However, in adopting the independent 8(a)(1)
findings we rely only on the following conduct:
(a) The interrogations of employees by Foremen
Lacombe, Thibodeaux, Comeaux, and Miller and
General Foreman Broussard during the week ending
August 12, 1972, as to whether the employees had
signed union authorization cards.
(b) Foreman Thibodeaux's threat to employee
Corvelle that for union related reasons the employees
would probably lose their insurance, and his interro-
gation of employee Parker concerning what he
thought of the Union.
(c) Manager Crawford's (1) creating the impres-
sion of surveillance by telling employees he under-
stood some pledge cards were circulating around the
yard and some of the men wanted to go union; 2 (2)
statements to a captive audience and to various em-
ployees individually that the Respondent was plan-
ning to set up a cost-free employee retirement plan
soon, and was working on more holidays and better
insurance for employees; that the Respondent was
planning to give a pay raise in November; that he
would try to get more money for employees; and that
1 The Respondent 's request for oral argument is hereby denied, as the
record in this case , including the exceptions and briefs, adequately presents
the issues and positions of the parties.
2 Chairman Miller would not make this finding and dissents therefrom.
there was no way in hell the employees could have a
union; and (3) comments to employee Parker that he
had to hire him back but if he caught Parker doing
one wrong thing he would have to let him go, and his
interrogation of Parker concerning what he thought of
the Union.
(d) General Foreman Broussard 's comments to
employees that (1) if the Union prevailed welders and
fitters would be laid off rather than be permitted to
do other work; (2) if the Union gave the employees
anything else, the Respondent would "have to take
something back that [it] had already given [them]"; (3)
the Union could not do any more for the employees
than the Company had already done; (4) he almost
had a retirement plan for them " swinging"; and (5)
employees probably would get a 15-cent raise.'
All of the foregoing conduct involves interference
with the employees' union activities and threats and
promises related to such activity, and is clearly unlaw-
ful under Section 8(a)(1). The Administrative Law
Judge so found and, as stated, we agree.
The Respondent excepts, inter alia, to that part of
the recommended Order requiring that it offer imme-
diate and full reinstatement to certain laid-off em-
ployees when in fact all such employees have already
been reinstated or have declined offers of reinstate-
ment. The record does show that within a few months
after their unlawful layoff all of Respondent's night-
shift employees had been offered reinstatement and
that a number of them had accepted such offers.
However, the record does not disclose whether such
offers of reinstatement and the actual reinstatement
were to the employees' former jobs or, if such jobs no
longer existed, to substantially equivalent jobs and
were without prejudice to the employees' seniority
and other rights and privileges. Consequently, we
shall issue a conventional reinstatement order quali-
fied to the extent that Respondent need not offer full
and proper reinstatement if it has already done so. We
shall also modify the recommended Order to provide,
as requested by the Respondent, that its backpay res-
ponsibility to the laid-off employees shall terminate as
of the date of its full and proper offer of reinstatement
to each employee, not, as provided in the Administra-
tive Law Judge's Decision, as of the date of actual
reinstatement.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board orders that Respondent, Fredeman's Cal-
casieu Locks Shipyard, Inc., Carlyss, Louisiana, its
3 Chairman Miller would not find an 8(a)(1) violation as to the statements
indicated as items (2) and (3) in this paragraph, and dissents therefrom
206 NLRB No. 104
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees concern-
ing their union membership, activities, or sympathies
in a manner constituting interference, restraint, or
coercion within the meaning of Section 8(a)(1) of the
Act.
(b) Unlawfully threatening employees with repri-
sals or unlawfully promising employees benefits to
discourage employees' union activity.
(c) Unlawfully creating an impression of surveil-
lance of employees' union activities.
(d) Unlawfully representing to employees that se-
lection of a union would be useless.
(e) Discouraging concerted activities of its employ-
ees or membership in International Brotherhood of
Boilermakers, Iron Shipbuilders, Blacksmiths, Forg-
ers and Helpers, Local 79, AFL-CIO, or any other
labor organization, by unlawfully laying off any of its
employees or discriminating in any manner in respect
to their hire and tenure of employment or any term
or condition of employment, in violation of Section
8(a)(3) of the Act.
(f) In any other manner interfering with, re-
straining, or coercing its employees in the exercise of
their right to self-organization, to form labor organi-
zations, to join International Brotherhood of Boiler-
makers, Iron Shipbuilders, Blacksmiths, Forgers and
Helpers, Local 79, AFL-CIO, or any other labor orga-
nization, to bargain collectively through representa-
tives of their own choosing, and to engage in
concerted activities for the purpose of mutual aid or
protection as guaranteed in Section 7 of the Act, or to
refrain from any and all such activities.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer to each night-shift employee laid off on
August 11, 1972, if it has not already done so, immedi-
ate and full reinstatement to his former job or, if that
job no longer exists , to a substantially equivalent job,
without prejudice to his seniority or other rights and
privileges, and make each such employee whole in the
manner provided in that section of the Administrative
Law Judge's Decision entitled "Recommended Rem-
edy" for any loss of pay he may have suffered from
the date of his unlawful layoff until the date of such
offer of reinstatement.
(b) 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 Order.
(c) Post at its shipyard in Carlyss, Louisiana, co-
pies of the attached notice marked "Appendix." a Co-
pies of said notice, on forms provided by the Regional
Director for Region 15, after being duly signed by
Respondent's representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act other
than those found herein.
° In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
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 having found,
after a trial at which all parties were permitted to give
evidence, that we violated the National Labor Rela-
tions Act, we have been ordered to post this notice.
The laws of the United States give all employees
these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through representatives
they choose
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any and all these things.
WE WILL NOT unlawfully interrogate our em-
ployees concerning their union membership, ac-
tivities, or sympathies.
WE WILL NOT unlawfully threaten our employ-
ees with reprisals or unlawfully promise them
benefits to discourage our employees' union ac-
tivity.
WE WILL NOT create the impression that we are
spying on our employees' union activities.
WE WILL NOT unlawfully represent to our em-
ployees that selection of a union would be use-
FREDEMAN'S CALCASIEU LOCKS SHIPYARD
less.
WE WILL NOT discourage concerted activities of
our employees or membership in International
Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, Local 79,
AFL-CIO, or any other labor organization, by
unlawfully laying off any of our employees or
discriminating in any manner in respect to their
hire and tenure of employment or any term or
condition of employment, in violation of Section
8(a)(3) of the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form labor organizations, to join International
Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, Local 79,
AFL-CIO, or any other labor organization, to
bargain collectively through representatives of
their own choosing, and to engage in concerted
activities for the purpose of mutual aid or protec-
tion as guaranteed in Section 7 of the Act, or to
refrain from any and all such activities.
WE WILL offer to Jospeh Vincent, Willie Sim-
mons, Garland Reed, Donald James Kershaw,
James Fruge, Chris Guidry, Michael Leon, Ray
Bumgarden, Danny Herrington, Larry L. Sim-
mon, Gerald Wayne Welch, Allan Walker, Ovie
R. Reeves,, Terry Walker, Roger D. Stewart,
Donald W. Parker, Robert Beason, Daniel D.
Rhodes, and Arthur E. Wright, if we have not
already done so, immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent jobs,
without prejudice to their seniority or other rights
and privileges, and pay to each of them any back-
pay he may have lost because of his unlawful
layoff.
All of you are free to remain or refrain from becom-
ing or remaining members of a labor organization.
FREDEMAN'S CALCASIEU
LOCKS SHIPYARD, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
401
ance with its provisions may be directed to the
Board's Office, Plaza Tower, Suite 2700, 1001 How-
ard Avenue, New Orleans, Louisiana 70113, Tele-
phone 504-527-6361.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge: The charge
filed by International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers and Helpers, Local 79,
AFL-CIO, herein referred to as the Union, on August 21,
1972, was duly served on Fredeman's Calcasieu Locks Ship-
yard, Inc., the Respondent herein, on August 22, 1972. The
complaint and notice of hearing was issued on November
13, 1972. In the complaint it was charged that the Respon-
dent unlawfully interrogated employees, threatened them
with loss of employment and benefits, promised them bene-
fits, and created the impression of surveillance in violation
of Section 8(a)(1) of the National Labor Relations Act, as
amended, herein referred to as the Act, and unlawfully shut
down its night shift and terminated or laid off its night shift
employees or in the alternative, accelerated the shutdown of
its night shift operation and the termination or layoff of its
night shift employees, in violation of Section 8(a)(1) and (3)
of the Act.
The Respondent filed a timely answer denying that it had
engaged or was engaging in the unfair labor practices al-
leged.
The case I came on for trial on January 23, 24, and 26,
1972, at Lake Charles, Louisiana. Each party was afforded
a full opportunity to be heard, to call, examine and cross-
examine witnesses, to argue orally on the record, to submit
proposed findings of fact and conclusions, and to file briefs.
All briefs have been carefully considered.
FINDINGS OF FACT,2 CONCLUSIONS
AND REASONS THEREFOR
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Louisiana corporation with its principal
office and place of business in Carlyss, Louisiana, where it
is engaged in the construction and repair of ocean going and
inland waterway vessels, and related products.
During the past year, which is a representative period,
Respondent, in the course and conduct of its business, de-
scribed above, purchased and received goods and materials
valued in excess of $50,000 which were shipped directly to
it from points outside the State of Louisiana. During the
An amendment was allowed to the complaint.
2 The facts found herein are based on the record as a whole and the
observations of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits, with due
regard for the natural logic of probability, the demeanor of the witnesses, and
the teachings of N L R B. v. Walton Manufacturing Company & Loganville
Pants Co., 369 U.S. 404, 408 (1961) As to those witnesses testifying in
contradiction to the findings herein, their testimony has been discredited,
either as having been in conflict with the testimony of credible witnesses or
because it is in and of itself incredulous and unworthy of belief.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same period, Respondent sold and shipped products valued
in excess of $50,000 directly to points located outside the
State of Louisiana.
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.3
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Alleged Violations of
Section 8(a)(1) of the Act
First: The Respondent is engaged in the construction and
repair of inland and all off-shore vessels related to the ma-
rine industry. As explained by Manager James W. Craw-
ford, "... our basic business is repair work. We build
generally-it is a continuous thing. We always have a vessel
under construction, but we do basically business on repair
work that ,is available."
During the year 1972, when the events herein described
occurred, a vessel, Hull 110, was under construction at the
Respondent's shipyard for the Port Arthur Towing Compa-
ny. Construction had commenced in January 1972. The
officers of the Port Arthur Towing Company are also offi-
cers of the Respondent. William F. Fredeman is president
and William F. Fredeman, Jr., is executive vice president.
President Fredeman owns 73 percent of the voting stock in
the Port Arthur Towing Company.
On Monday, August 7, 1972, an employee, Earnest W.
Westland, Jr., obtained some union authorization cards
from Union Representative A. E. Vincent and on Tuesday,
August 8, 1972, Westland commenced soliciting signers
among the Respondent's night shift employees on a road
leading to the shipyard about 3:30 p.m. One of the employ-
ees solicited was Night Shift Foreman Sanford Peter La-
combe, also known as "Shorty." Of the night crew of about
20, 15 4 signed the union authorizations. While Westland
was soliciting an employee, Manager Crawford passed by in
an automobile. On the same date, about 20 day-shift em-
ployees of a crew of about 50 also signed union authoriza-
tion cards for Westland. None of these cards, however, were
solicited or signed in the vicinity of the shipyard. Three days
later, on August 11, 1972, the entire night shift was laid off.
When Lacombe arrived at the yard on August 8 he in-
formed Forman Earl Thibodeaux that Westland had "stop-
ped" him and wanted to give him a "union card."
According to General Foreman Lenes J. Broussard, a mem-
ber in good standing of the Union, he learned from Lacom-
be I on "Tuesday or Wednesday morning" that "he was
7 By answer the Respondent admitted the foregoing facts.
4 Danny Herrington, Robert Beason, Ray Bumgarden, and James Fruge
did not sign cards.
5 Lacombe testified that he had discussed Westland's solicitation only with
Thibodeaux.
stopped on the road and was asked to sign a card."
Thereafter Broussard , without seeking instructions from
"higher up," asked all foremen "to go around and ask ev-
erybody who had signed a pledge card ." Broussard ex-
plained to the foremen that "[he] didn't want any names,
and [he] didn 't want to know who signed the pledge cards.
[He] was anxious to find out how many pledge cards had
been signed ." The foremen followed Broussard 's instruc-
tions and reported to him that about 10 or 12 employees had
signed pledge cards. According to Broussard he passed this
information on to Crawford the next morning . According to
Crawford , Broussard , on the morning of Wednesday, Au-
gust 9 , 1972,6 informed him that some cards had been signed
by employees and it was not until Thursday , August 10, the
day after he had spoken to the employees in a captive audi-
ence , that he learned from Broussard that "there were like
10 or 12 cards that had been signed."
Among the employees polled by Lacombe were Roger
D. Stewart , Terry L. Walker , and Gerald W. Welch . Lacom-
be asked Stewart whether he was "No . 6 or No . 7," Stewart
asked Lacombe to explain . Lacombe said that "he wasn't
taking names . He just wanted to find out how many people
signed the Union card." He asked Stewart whether he had
signed a union card . Stewart answered affirmatively.
Lacombe approached employee Walker and said , "There
won't be any names mentioned , that Broussard just wanted
to know the count of the Union"; then Lacombe asked
Walker whether he had signed a union card . Walker an-
swered affirmatively . Lacombe asked employee Welch
three times whether he had signed a union card . The first
two times Welch answered negatively . The third time he
said, "Shorty, it's really none of your business , you know."
Welch had signed a card.
On the same day on which employee Welch signed a card
Broussard conversed with Welch and his brother-in-law.
Broussard asked the employees whether they had signed
union cards or had seen Westland on the road. Both an-
swered negatively to the question. Both had signed cards.8
On the morning of August 9,1972 , Thibodeaux conversed
with employee Bobby G. Corvelle in the machine shop.
During the conversation Thibodeaux said he was "against"
the Union, the employees "would probably lose [the] insur-
ance," and that "some guys would probably get laid off on
account of what was going on." 9
On the afternoon of August 9, 1972 , Broussard asked
employee Wright , at his work station , whether he had seen
6 Later in his testimony Crawford indicated that this information was given
to him in the evening.
7 Lacombe interrogated all the employees on the night shift. Lacombe
testified that he asked them, "Did you all sign a card.... You can tell me
if you all want too, or you don't have to tell me if you don't want to tell me.
It doesn't make no difference to me." "I told them that was my job, I had
to go ahead and do it."
These findings are drawn from the credited and uncontroverted testimo-
ny of Welch.
v Thibodeaux admitted that he had spoken to Corvelle about the Union
and that he had said the "insurance was free and maybe [the employees]
wouldn't get it if the Union would come in." Thibodeaux denied that he had
said that "there probably would be a layoff on account of union activity."
Except for Corvelle's testimony on this point, which may be at odds with his
affidavit and upon which no finding is made, Corvelle, who appeared as a
forthright, honest witness, is credited.
FREDEMAN 'S CALCASIEU LOCKS SHIPYARD 403
Westland the day before and asked if Westland had some
cards. Wright answered, "Yes." Whereupon Broussard
asked Wright whether he had signed a card. Wright an-
swered untruthfully, "No." Broussard then inquired as to
the nature of the cards. Wright said they were "pledge cards
for the Union." Broussard added that "the union wouldn't
work out there because the yard was too small."
On the same afternoon around 4 Foreman W. Glenn
Comeaux approached employee Corvelle and said "they
had told him to go around and ask the guys if they had
signed a card." He then asked Corvelle whether he had
signed a card.10 Corvelle answered negatively. Corvelle had
signed a card. On the same date Comeaux asked employee
Richard Haugh whether he had signed a union card; that
"He didn't want to take any names down or anything, but
Mr. Broussard just wanted to know just how he stood with
the men." Haugh answered that it was his "own personal
business."
On Wednesday, August 9, 1972, Crawford addressed the
employees in a captive audience. Among other things Craw-
ford informed the employees that he "understood some
pledge cards were circulating around the yard and some of
the men wanted to go union"; that the employees "didn't
need a union to represent them"; that Livingston Shipyard
had "lost a million dollars the year before for being union";
that "they were planning on extending a little bigger" and
"they didn't plan on having a layoff"; i 1 that they never had
layoffs; that he didn't believe the Union could help the
employees because the Company was giving the employees
more benefits than the Union could offer; that the Union
wasn't good for the yard; that the Company was working
on a retirement plan which was coming in the near future
and would not cost the employees anything; that the Com-
pany was trying to work out a few more holidays and better
insurance for employees; that the Company was thinking of
hiring more men; that everyone would have complete free-
dom of choice in a secret ballot election; and that "there
was a union scare going around and he didn't think it would
help.,, 12
Crawford also said that there would be a secret-ballot
election in which the employees would have a freedom of
choice; that no one would know how the employee voted;
that the Company didn't know who had signed cards and
didn't want to know; and that if a man signed a card, it
wouldn't be held against him.13
After Crawford concluded his speech on August 9, 1972,
Broussard addressed the employees. Broussard commenced
by saying, "Listen to Mr. Crawford, what he says about the
Union. Believe every word he says. Believe me, I know,
10 Comeaux testified that he had interrogated three or four employees who
admitted signing cards.
"Crawford testified that at the time he gave the talk he "knew [he] was
going to pull [the] night shift off"; however, he had not communicated such
decision to the employees nor his supervisors.
12 According to Crawford he told the employees that the Company was
going to try to have a crew there that was steady, "no fluctuations in num-
bers." Crawford did not specifically deny the findings set out above which
are drawn from the credited recollections of employees Crawford did not
speak from a transcript although the answer of the Respondent averred that
Crawford "obtained legal counsel prior to the speech."
i3 Statements of this character do not absolve an employer of its otherwise
coercive statements.
because it's true." Among the other things Broussard said
that if the employees "got any thing more by going Union,
they would have to take something back [the employees]
already had"; and that if welders or fitters ran out of work
they would be laid off rather than be allowed to do other
work if the Union came in the yard. Broussard also said that
he "didn't believe the Union could help" the employees.
On the morning of August 10, 1972, Ray Bumgarden first
applied for employment. Around 7:30 or 8 he talked to
Broussard. He asked Broussard whether he needed anyone
on the night crew. Broussard answered, "Yes, we need one
on the night crew and a couple on the day crew." Bumgar-
den was hired for the night shift, to commence work that
day at 4 p.m.14
The next day after Crawford !s speech Broussard again
talked to Wright when a number of employees who were
caught in the rain sought shelter underneath a hull. Brous-
sard said that campaigning was going to start against the
Union and "that they had 15 more men coming out 15 and
they got orders that morning that they couldn't hire them
that morning on account of this." Broussard further dis-
cussed employee benefits which the employees were receiv-
ing, a week's vacation, a turkey, and pay for Christmas.
Broussard observed that if the employees "went union and
the union would give [them] anything else, they'd have to
take something back what they had already given [them]." 16
On August 10, 1972, Foreman Watson Miller asked em-
ployee Wright whether he had signed a union card. Wright
answered negatively. Watson commented that "He didn't
want to know names, he just wanted to know about how
many.,,
On August 10, 1972, Thibodeaux asked Wright if he had
signed a union card. He answered negatively. "
On August 10, 1972, a union recognition demand was
served upon the Respondent.
On the afternoon of August 11, 1972, Broussard "came
by" and told employee Corvelle to lock the machinists'
cabinet, "that there wasn't going to be a night crew tonight."
Shortly thereafter Corvelle asked Thibodeaux "what was
going on." Thibodeaux said "they had pulled the night
crew's cards" and "somebody was going to be laid off."
Corvelle told him that he "didn't think he could get away
with it." Thibodeaux answered that "they probably think
they got a chance."
Broussard testified that he was first informed by Craw-
ford of the contemplated night-shift layoff approximately at
12:30 p.m. on August 11, 1972. Crawford testified that he
had come to the decision to lay off the night crew prior to
addressing the employees on August 10, which decision he
had cleared with his superiors.
14 In addition to Bumgarden, R Beason was hired for the night shift on
August 8, 1972, and L Marceaux, C Lebouef, and J ]Lofton were hired for
the day shift on August 8, August 10, and August 10, respectively.
15 Broussard's statement was in line with Crawford's representation in his
speech that "they were planning on extending a little bigger" and that the
Company was thinking of hiring more men, all of which seems reasonable
in that the Respondent was engaged in the largest construction job in its
ex Ipeerience
Broussard admitted a conversation under the hull, and said he told the
employees they did not need a union. Broussard admitted saying that "if the
company had to set down and negotiate, that [the employees ] could lose some
benefits that [they] would have had without them "
17 Thibodeaux testified that he interrogated between 10 and 12 employees.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to starting work, the night shift was assembled and
informed by Broussard that they were laid off. According
to Broussard, he explained that "something had come up on
the new hull; that he was sorry that he didn't have time to
notify them in advance . . . but the Company had agreed
to pay them a day's work, and they were free to go . . . [the
Company] was going to be calling them back just as soon
as [there were] openings on the day shift." According to
Lacombe "nobody had said anything . . . about whether
[the night shift would] be called back at any given time."
Crawford said that he was motivated to eliminate the
night shift because "he could bring these guys back in so
they wouldn't be out too long and they wouldn't be hurt too
bad." August 11, was chosen for the layoff because it was
the end of the pay period "which is more convenient for .. .
bookkeeping" and "it wouldn't cause confusion among the
men."
On August 11, 1972, the Respondent's advertisement in
the "Lake Charles American Press" appeared for "First
class welders and fitters." On the same date the Union filed
a petition for an election. Thereafter the Respondent com-
menced recalling the night crew; the first recall was August
13, 1972.
On Thursday, August 17, 1972, returning night shift em-
ployees Reeves, Herrington, and Vincent were summoned
to Broussard's office. Broussard told the employees that the
union business was in the past; that he "wanted to put
everybody on the slate"; that "the Union couldn't do more
for [the employees] than the Company had already done";
that he was "talking to Mr. Crawford about it retirement
plan, and almost had it swinging"; and that the employees
would probably get a 15-cent raise.
On this occasion Reeves worked for about an hour when
Broussard explained that he was not to have returned him
to work; indicating that other laid-off men had greater sen-
iority. Crawford then said that he would give him $10 for
his time in coming to the shipyard. Crawford said that "as
soon as this damned stuff gets straightened out, this union
business gets straightened out, that it would be back like it
was, but there is no way in hell [he] could have a union." 16
Three or four days after the layoff Crawford conversed
with employee Corvelle in the machine shop. Crawford in-
formed Corvelle that conditions were improving; that the
Company was working on a retirement plan; that the Com-
pany was planning on giving the employees a raise of 5.5
percent in November or December; that they were trying to
work on a few more holidays; that it was too late in the
game to promise anything; and that he was "real concerned
about the men in the yard." 19
Four or five days after the layoff Crawford told employee
Wright, while working, that he was a good worker; that the
employees didn't need the Union; that the employees got
along good enough without it; that the employees were
going to get a retirement plan; and that the Company was
planning on two or three more paid holidays.for the employ-
ees.20
is Crawford's and Broussard's version of this incident are not credited.
19 These findings are drawn from the credited and uncontroverted testimo-
ny of Corvelle.
2° These findings are drawn from the credited and uncontroverted testimo-
A couple of days after employee Simmons returned to
work, Crawford told Simmons that he was glad he was
back; that he "wanted to beat the union so bad this time
that they never would try it out there no more"; that he was
going to try to give the employees more paid holidays and
"a little bit more money"; that he didn' t care whether a man
signed one of those cards or not; that bygones were by-
gones, and he would not hold that against anybody. 21
About 4 weeks after the layoffs Crawford came to em-
ployee Haugh's work station. During the conversation that
followed Crawford said that he didn't know whether Haugh
had signed a card and didn't care but didn't believe the
Union could help the employees; that he thought the Com-
pany was giving enough benefits and more than the Union
would offer or could get for them; that he was trying to
work out some more holidays; and that if it " came to a
vote," he would like to have Haugh's "vote for the yard." 22
Three days after employee Welch returned to work after
the night-shift layoff he was sent to Crawford's office where
he talked to Crawford. Among other things Crawford re-
viewed the Company's benefits and said that the Union
couldn't help the employees anymore than they already had
and that "The Union had tried some time before and it
didn't work, and he didn't think it would work now." 23
When employee Donald W. Parker returned from layoff,
he was told to visit Crawford's office. Crawford said to
Parker, "Don, I'm going to have to hire you back. If I catch
you all doing any wrong thing, I'm going to have to let you
go." Then he asked Parker what he thought about the
Union. Parker replied, "if the majority goes, I'll go." Craw-
ford added, "I don't think they'll ever have a union out
here." 24
Upon leaving Crawford's office Parker met Thibodeaux
who asked him, "What do you think about the Union? "
Parker responded, "Well, I'll tell you what I told Mr. Craw-
ford, if the majority goes, I'll go."
During the week following August 11, Thibodeaux asked
Simmons whether he had signed a union card. Getting no
satisfaction from Simmons, Thibodeaux said, "You proba-
bly signed one of them cards."
Second: In the light of the entire record and in the context
used it is concluded that the Respondent violated Section
8(a)(1) of the Act in the following particulars, to wit:
.1. The interrogations of employees by Foremen Lacom-
be, Thibodeaux, Comeaux, and Miller and General Fore-
man Broussard during the week ending August 12, 1972, as
ny of Wright.
21 These findings are drawn from the credited and uncontroverted testimo-
ny of Simmons.
22 These findings are drawn from the credited and uncontroverted testimo-
ny of Haugh.
23 Crawford admitted the conversation with Welch but did not specifically
deny Welch's testimony. Among other things Crawford told Welch that if he
siguned a union card it did not mean that he had to vote for the Union.
Crawford admitted the conversation and said he called Parker into his
office "to make sure he understood that we had a petition" and that he would
have a freedom of choice; that if Parker signed a pledge card that "we held
nothing against him"; that if he signed a card "it didn ' t necessarily mean that
he had to vote for the Union"; that he was glad Parker was back and that
in his opinion Parker "didn 't need a union to represent him." Crawford did
not specifically deny Parker's testimony.
FREDEMAN'S CALCASIEU LOCKS SHIPYARD 405
to whether employees had signed union authorization
cards.25
2. Foreman Thibodeaux's threat of reprisal related to
employee Corvelle on August 9, 1972, that the employees
"would probably lose [their] insurance." 26
3. Foreman Thibodeaux's interrogation of employee
Parker, after he returned from the night-shift layoff, as to
what he thought about the Union.
4. Crawford's creation of an impression of surveillance
transmitted to employees in a captive audience when he said
that he "understood some pledge cards were circulating
around the yard and some of the men wanted to go
union." 27
25 In the case of N.L.R.B. v. Milco, Inc., 388 F.2d 133, 137 (C.A. 2, 1961),
the court said at 137:
In evaluating questions arising from the interrogation of employees,
the issue is whether the activity is "calculated to frustrate the union's
organizational campaign by instilling fear of reprisals in the employees."
N.L.R.B. v. L. E. Farrell Company, 360 F.2d 205, 207 (2 Cir. 66)... .
In the case of N.L.R.B. v. Southern Electronics Co., 430 F.2d 1391 (C.A.
6, 1970), the court said at 1393:
It is well settled that such interrogation violates § 8(a)(1) when its proba-
ble effect is to inhibit union activity.
The interrogations herein found unlawful meet these tests. The employees
were left "to conjure up various images of employer retaliation." Dubin-
Haskel Lining Corp. v. N.L.R.B., 375 F.2d 568 (C.A. 4, 1967).
The clear purpose of the interrogations was to elicit aid for the
Respondent's antiunion objectives. Credible proof is lacking that such ques-
tioning was pursuant to the Employer's legitimate business interests. Cf.
Winchester Spinning Corporation, 402 F.2d 299 (C.A. 4, 1968). See also N.L.R.
B. v. Builders Supply Company of Houston, 410 F.2d 606, 609 (C.A. 5, 1969).
Moreover, the specific interrogations referred to above do not meet the
criteria announced in the case of Struksnes Construction Co., Inc., 165 NLRB
1062, 1063:
Absent unusual circumstances , the polling of employees by an em-
ployer will be violative of Section 8(a)(1) of the Act unless the following
safeguards are observed: (I) the purpose of the poll is to determine the
truth of a union's claim of majority, (2) this purpose is communicated
to the employees, (3) assurances against reprisal are given, (4) the em-
ployees are polled by secret ballot, and (5) the employer has not engaged
in unfair labor practices or otherwise created a coercive atmosphere.
In the same case the Board said, "In our view any attempt to ascertain
employee views and sympathies regarding unionism generally tends to cause
fear of reprisal in the mind of the employee if he replies in favor of unionism
and, therefore tends to infringe on his Section 7 rights."
While the interrogators no doubt chose language which was intended to
cloak the polling with an air of legitimacy, the coercive effect was evident,
for each employee was asked to reveal his union sympathy under circum-
stances which suggested reprisal and the Employer's anxiety. As was said by
the court in Hughes & Hatcher, Inc. v. N.L.R.B., 393 F.2d 557 (C.A. 6, 1968):
. in deciding whether a particular interrogation is a violation of the
Act, the questioning must be viewed in the total context of the surround-
ing circumstances. In order to determine accurately whether the interro-
gation would reasonably have been coercive, it must be viewed and
interpreted as the employee must have understood the questioning and
its ramifications. . . . N.L.R.B. v. Welsh Industries, Inc., 385 F.2d 538
(6th Cir. 1967).
In Monroe Manufacturing Company, Inc., 200 NLRB No. 11, the Board
said, ". . . regardless of the courtesy and civility of the inquiry. It is the
master-servant relation and the power explicit in it that makes such interroga-
tion unlawful."
In regard to the other unfair labor practices herein found, each meets the
test observed by the court in N.L.R.B. v. Wilbur H. Ford, d/b/a Ford Brothers,
170 F.2d 735, 738, "the test is whether the employer engaged in conduct
which, it may be reasonably said, tends to interfere with the free exercise of
emloyee rights under the Act."
An employer is restrained by the Act from either making "threat of
reprisal or force or promise of benefit" during a period in which a union is
organizing its employees. Gissell Packing Co., Inc. v. N.L.R.B., 395 U.S. 575
(1969).
27 "Surveillance becomes illegal because it indicates an employer's opposi-
tion to unionization , and the furtive nature of the snooping tends to demon-
5. Crawford's remarks to the employees in a captive au-
dience that the employees "didn't need a union to represent
them," 28 that he didn't believe the Union could help the
employees because the Company was giving the employees
more benefits than the Union could offer and the Union
wasn't good for the yard.
6. Crawford's promise of benefits, delivered to employ-
ees in a captive audience, to the effect that the Respondent
was working on a nonemployee cost retirement plan which
was coming in the near future and that the Respondent was
trying to work out a few more holidays and better insurance
for employees.29
7. Crawford's promise of benefits, related to employee
Corvelle shortly after the layoff, were that the Respondent
was working on a retirement plan, was planning on giving
a raise of 5.5 percent in November or December, and was
trying to work out a few more holidays.
8. Crawford's coercive representations to employee
Wright, several days after the layoff, that the employees
didn't need a union; that the employees were going to get
a retirement plan; and that the Company was planning on
two or three more holidays.
9. Crawford's coercive statement to employee Reeves
that "There is no way in hell [he] could have a union." 30
10. Crawford's coercive remarks to employee Haugh
about 4 weeks after the layoff that he didn't believe the
Union could help the employees; that the Respondent was
giving more benefits than the Union could offer them or
could get for them; that he was trying to work out some
more holidays; and that if it came to a vote he would like
to have Haugh's "vote for the yard."
11. Crawford's promise of benefits to employee Simmons
when he returned to work after the layoff that he was going
to try to get more holidays for the employees and "a little
bit more money."
12. Crawford's coercive statement to employee Parker
when he returned from layoff, "I'm going to have to hire you
back, if I catch you all doing one wrong thing, I'm going to
have to let you go," and Crawford's interrogation of Parker
strate spectacularly the state of the employer's anxiety. From this the law
reasons that when an employer either engages in surveillance or takes steps
leading his employees to think it is going on , they are under the threat of
economic coercion, retailiation , etc." Hendrix Manufacturing Company v,
N.L.R.B., 321 F.2d 100, fn. 7 (C.A. 5, 1963). See also N.L.R.B. v. Ralph
Printing and Lithographing Company, 379 F.2d 687, 691 (C.A. 8, 1967).
28 In N.L.R.B. v. Bailey Company, 180 F.2d 278, 279 (C.A. 6), the court
said: "An employer interferes with the right of self-organization when he
emphasized to his employees that there is no necessity for a collective-
bargaining agent."
In The Trane Company, 137 NLRB 1506, 1510, the Board said:
There is no more effective way to dissuade employees from voting for
a collective-bargaining representative than to tell them that their votes
for such representative will avail them nothing.
See also Whiting Corporation, 188 NLRB 500.
29 In N.L.R.B. v. Bailey Company, 180 F.2d 278, 279 (C.A. 6), the court
said : "Interference is no less interference because it is accomplished through
allurements rather than coercion." In N.L.R.B. v. Douglas & Lomason Co.,
333 F.2d 510, 514 (C.A. 8, 1964), it was stated : ". . . interference, accom-
plished by allurements , is as much condemned by the Act as is coercion."
See also N.L.R.B. v. Exchange Parts Company, 375 U.S. 405 (1964).
While the Respondent claims that the prospects of a retirement plan had
been finally formulated and that a substantial number of employees heard
of the prospects of a retirement plan for the first time in Crawford's captive
audience speech.
30 Such statement clearly implies the futility of the employees choosing a
union.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to what he thought about the Union.
13. Broussard's remark to employees in a captive audi-
ence that if the Union prevailed welders and fitters would
be laid off rather than be permitted to do other work and
that he didn't believe that "the Union could help" the em-
ployees.
14. Broussard's coercive statement to employee Wright
and others, after mentioning employee benefits, that, if the
Union would give the employees anything else, the Respon-
dent would "have to take something back that they had
already given [them]."
15. Broussard's coercive remarks to employee Reeves
and others during the week following the layoff that "the
Union couldn't do no more for [the employees] than the
Company had already done"; that he was "talking to Mr.
Crawford about a retirement plan, and almost had it swing-
ing"; and that the employees would probably get a 15-cent
raise.31
B. The Layoff of the Night Shift
on August 11, 1972
First: The Respondent in its brief has recognized the
elements of the General Counsel's prima facie case and has
set them out as follows:
(1) There was union movement underfoot and the em-
ployer knew it.
(2) The employer was opposed to unionism and had
made one speech against it.
(3) The employer laid off an entire night shift of 20 peo-
ple but had no prior history of layoffs.
(4) The layoff came only 1 day after receipt of union
demand letter for recognition, and only 2 days after first
knowledge of union activity.
(5) On the day before the layoff a new employee had
been hired to work on the night shift, and employer had run
newspaper ad seeking applicants for employment in the
same work classification as the laid off employees.
(6) Union claims to have obtained a higher proportion of
authorization cards from employees on the night shift than
from employees on the day shift (but there was no proof of
imputation of knowledge of this information to manage-
ment)
-(7) To this can be added a smattering of superficial inci-
dents of employee questioning, a few discussions of union-
ism in the abstract between foreman and workers, and a
couple of office conferences away from the employees' nor-
mal work station, all of which, collectively, while friendly
and not intentionally coercive, may conveniently be re-
ferred to by the General Counsel as a collection of 8(a)(1)
type interrogation and interference.
To the Respondent's analysis may be added the following
factors: Crawford told the employees in his speech 2 days
before the layoffs that there had been no layoffs and the
31 In drawing these conclusions the teachings of the Supreme Court in the
case of N.L.R.B . v. Gissel, supra, have been considered and weighed. The
Court said that the balancing of employer rights against those of the employ-
ees "must take into account the economic dependence of the employees on
their employers , and the necessary tendency of the former, because of their
relationship , to pick up intended implications of the latter that might be more
readily dismissed by a more disinterested ear."
Respondent "didn't plan to have a layoff"; the night-shift
employees were the first employees to have been observed
signing union cards and were the employees among whom
union organization commenced; neither the general fore-
man, the supervisors, nor the employees had any advance
notice that a layoff was planned; and Crawford implied the
illegality of the layoffs when he said to employee Parker,
"I'm going to have to take you back."
A review of these factors which form the basis of the
General Counsel's prima facie case is suggestive of the lan-
guage of the court in N.L.R.B. v. Jamestown Sterling Corp.,
211 F.2d 725 (C.A. 2):
[T]he unexplained coincidence of time with respect to
the principal events was really no coincidence at all,
but rather part of a deliberate effort by the manage-
ment to scotch the lawful measures of the employees
before they had progressed too far toward fruition
The Respondent pleads innocent to any discriminatory
motivation and attributes the layoff not to the purpose of
chilling union affection but to temporarily halting the con-
struction of Hull 110.
Hull 110 was ordered for construction by the Port Arthur
Towing Company. On January 20, 1971, the Port Arthur
Towing Company filed an application for ship mortgage
and/or loan insurance for Hull 110 with the Maritime Ad-
ministration, under Title XI, Merchant Marine Act 1936.
The application listed the vessel as costing $2,424,500 and
the requested loan at $1,818,375. The Respondent had com-
menced construction of the vessel in January 1972 in con-
formity with shipyard standards. According to Attorney
Hoke Peacock, who was handling the loan application for
the Port Arthur Towing Company, the application lay seem-
ingly dormant 32 because the Company was not eligible for
the loan unless it could "arrange re-financing of its long
term debt vs. its current assets." On March 20, 1972, the
Maritime Administration had addressed a letter to Port
Arthur Towing Company in respect to its application re-
questing additional information. The letter noted that "all
of the necessary technical data have not been submitted,"
that items missing were "the barge arrangement plans and
specifications as well as structural plans and weight esti-
mates for all vessels" and "contractual arrangements with
shipyards together with estimated completion schedules."
The letter included the sentence, "In addition, the specifica-
tions for the towboat are not clear with respect to the ABS 33
classification and this should be clarified." The record does
not reveal that the Port Arthur Towing Company made a
response to this letter although it continued the construction
of Hull 110. Peacock explained that a response to such a
letter and the compiling of the data requested at that time
"would have been a useless waste of money," 34 because it
appeared that the Port Arthur Towing Company could not
meet the financial requirements for eligibility. It was not
32 Peacock testified, "On March 20, 1972, I advised Port Arthur Towing
Company that they probably not be in credit Title XI financing on the
application they had on file."
3 The American Bureau of Shipping hereinafter referred to as ABS.
34 It is significant that while the perfecting of the application was consid-
ered a "useless waste of money at this time ," nevertheless , by August 1, 1972,
almost 14,000 man hours had been expended on Hull 110.
FREDEMAN'S CALCASIEU LOCKS SHIPYARD
until late May or early June that Peacock said he was able
"to make some progress in this area." On July 24, 1972,
according to Peacock, he advised the Port Arthur Towing
Company that to procure insurance under Title XI, Hull
110 would have to be classified by the American Bureau of
Shipping, and "it would be prudent to absolutely stop work-
ing on that boat until they could find-out if the plans they
were constructing it by would clear ABS."
Eight days later on August 1, 1972, according to Craw-
ford, he received work from the Port Arthur Towing Com-
pany to stop work on Hull 110; however Crawford said that
during the prior week he had discussed the situation with
Port Arthur Towing Company representatives. During this
period around 2,300 man hours were expended on the Hull.
Crawford commenced immediately thereafter to prepare
drawings and the paper work to submit to the American
Bureau of Shipping for the classification of Hull 110. Such
involved "correction and some redesign." According to
Crawford the "dimension of the hull didn't change. Some
of the internal framing sizes and some of the things we had
done would have to be changed." Crawford's drawings were
submitted to the American Bureau of Shipping on August
8, 1972, with a letter advising that, "Construction has begun
on the vessel, so your prompt attention would be greatly
appreciated." After the drawings were completed, accord-
ing to Crawford, he was "trying to decide what to do about
production." He decided to eliminate the night shift on the
same date he submitted the drawings. Between August 1
and August 8 around 1,850 more man hours were expended
on the Hull. It was not until September 1, 1972, that the
Respondent requested certain suppliers of new equipment
to delay shipments.
About a month later, September 6, 1972, the drawings
submitted on August 8, 1972, were approved.
On November 21, 1972, Crawford wrote the American
Bureau of Shipping advising it that it could not start certain
areas of work until an approval was received. As explained
by Crawford, "We wanted them in a bad way. We needed
to begin these items in order to meet some kind of sched-
ule." No employees were laid off. Final approval was re-
ceived from the ABS on November 29, 1972.
According to Crawford he eliminated the night shift be-
cause the night shift had not produced on a comparable
basis with the day shift; men were fighting a visibility prob-
lem, the wintertime cold, the summertime heat, and mosqui-
toes. According to Crawford the night shift was inaugurated
because of a shortage of equipment and a hope to reduce
overtime 35 Crawford also said that in choosing to lay off the
night shift rather than generally laying off employees, he
considered that the attrition on the day shift would make
possible the reinstatement of the night shift employees in a
short period. As noted above, according to Crawford, after
making his, decision he informed his superiors, who had no
objections.36
35 The night shift was nevertheless continued after the equipment shortage
was corrected.
36 Crawford is viewed as an unreliable witness, which was apparent from
the nature of his testimony and his demeanor Critical portions of his testimo-
ny are unbelievable and his testimony was obviously tailored to accommo-
date the Respondent 's defense . It is not believed that the decision to lay off
the night shift was originated with Crawford.
407
When the employees were laid off they were paid for
Friday night although they were excused from work. This
was the Respondent's first layoff. Crawford said the em-
ployees were paid the extra day because the men had no
advance notice and they "showed up to come to work."
Crawford referred to the Respondent's repair work as the
"bread and butter work of the shipyard." Over 40 percent
of the repair work was derived from the Port Arthur Towing
Company. According to the Respondent, at the time of the
layoff about 50 percent of the Respondent's work was on
Hull 110.
The week after the layoff overtime increased from 52-3/4
hours to 345-1/2 hours. The difference in the payroll was
less than $115. The week ending August 27, 1972, showed
overtime of 351-1/2 hours. The total payroll for the week
exceeded the payroll of the last week the night shift worked
by over $140. The week ending September 3, 1972, showed
159-3/4 hours overtime. The week ending September 9,
1972, showed overtime in the amount of 542-3/4 hours. The
total payroll for this week was about the same as that for
the last week the night shift worked.37
After the layoff the night shift was returned to work on
the day shift according to seniority, as follows:
Joseph Vincent and Willie Simmons on August 15,
1972; Garland Reed on August 17, 1972; Donald
James Kershaw on September 1, 1972; James Fruge,
Chris Guidry, Michael Leon, and Ray Bumgarden on
September 5, 1972; Danny Herrington, Larry L. Si-
mon, and Gerald Wayne Welch on September 12,
1972; Allan Walker on September 13, 1972; Ovie R.
Reeves, Terry Walker, Roger D. Stewart, and Donald
W. Parker on September 23, 1972; Robert Beason on
October 5, 1972; Daniel D. Rhodes and Arthur E.
Wright on November 6, 1972.
By September 12, the time the approval was received from
the ABS, over half (11 employees) of the night shift had
been returned to employment. During this period only three
employees had been terminated.
Second: A prima facie case "can be overcome only by a
preponderance of competent, credible, rebutting evidence":
National Automobile and Casualty Insurance Co., 199 NLRB
No. 1:
The Company had the burden to come forward with
an adequate explanation for discharging [the employ-
ees] once a prima facie case of possible discrimination
had been established by the General Counsel. N.L.R.B.
v. Standard Container Co., 428 F.2d 793, 974 (C.A. 5,
1970).
Nevertheless, the court said in N.L.R.B. v. The Freeman
Company, 471 F.2d 708 (C.A. 8):
The rule is generally recognized that where the com-
pany demonstrates a proper business reason which
standing alone would justify the company's action af-
fecting employees, the Board has the burden to over-
come this fact and demonstrate that the reasons
exercised by the company were pretextual. Reliance
Insurance Companies v. N.L.R.B., 415 F.2d 1, 7 (8 Cir.
1969); N.L.R.B. v. Gotham Industries, Inc., 406 F.2d
37 These were the weeks worked between the time of the layoff and the
approval by the ABS
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1306, 1309 (1 Cir 1969).
See also Midwest Hanger Company and Liberty Engineering
Corp., 474 F.2d 1155 (C.A. 8, 1973).
In N.L.R.B. v. Midwest Hanger Company and Liberty En-
gineering Corp., 474 F.2d 1155, (C.A. 8, 1973), the court
said:
The discharge of a large number of employees in-
cluding some union leaders during a union organizing
campaign would appear to be "inherently destructive
of employee interests," thus placing the burden on the
Company of explaining away or justifying its action.
Under the foregoing criteria the General Counsel has
sustained his burden; the Respondent has failed.
The Respondent insists that the hiring of new employees
and the advertising for new employees during a period when
it had allegedly shut off work on Hull 110 was "only nor-
mal" and "routine procedures," that Broussard did not
know of the change over to day operation and that Craw-
ford had no knowledge of the advertisement. On the other
hand the General Counsel reasons that the hiring of the new
employees and the placement of the advertisement were
"[o]ne way to offset the organizational successes of a labor
organization" by "increasing the workforce." A more rea-
sonable inference (and the one adopted here) is that Craw-
ford, who, as a manager of a small establishment had his
finger on everything, knew of the hiring and the advertise-
ment, but did not suspend either because the decision to
layoff occurred too late to take such action for, at the time,
there was no discernible intent to change the Respondent's
work schedule. Ergo, the Respondent in this respect is cor-
rect in its assertion that the hiring and the advertisement
were "only normal." However, the situation changed when
the Respondent received the Union's demand letter which
then caused the Respondent, who had already committed
itself to the commission of unfair labor practices, to recon-
sider its strategy. At this point the prospects of an election
materialized and the layoffs followed which, it seems quite
clear, had not been previously anticipated. In this regard the
Respondent recognizes that Crawford's failure to mention
the layoffs in his speech contributes to this conclusion. (It
does seem incongruous that Crawford should have assured
employees on August 9 that there would be no layoffs and
then, in contradiction of such assurance, laid off around 25
percent of the workforce on August 11.) But the Respondent
rationalizes Crawford's failure to mention the layoffs by
asserting that such an announcement "would so detract
from the speech that the listeners would forget everything
else, thus rendering the whole effort a nullity" and that
Crawford "personally did not feel there was a substantial
detriment to the night shift anyhow, in light of the quick
resumption of work on the day shift," "liberal unemploy-
ment benefits" and "excellent shrimping prospects." The
fallacy of this argument lies in the fact that Crawford did
mention layoffs in his speech but rather than to have stated
what is claimed to have been in his mind he assured employ-
ees there would be no layoffs. No doubt such representation
fitted the beneficient portrayal the Respondent had in mind
at the time. As for the lack of detriment to the night shift
(if it were a consideration), the Respondent must have
known that not only would the layoffs of the union card
signers be viewed by them as reprisal for signing union
cards, but that the day shift employees, who had been given
no reason for the night shift layoffs and who had been
recently assured that there would be no layoffs, would con-
clude that the night shift layoffs were a warning that they
should deter from any further union activities. Moreover,
the loss of a job out of line of seniority for even a short time
manifests detrimental aspects. While in this respect the Re-
spondent emphasizes that it scrupulously followed seniority
in the recall of the night shift, for which it claims a good
mark, it is not plausibly explained why the same principle
should not have been applied to both the day and night
shifts in effecting the layoffs. Obviously the layoff on a
straight seniority basis, which seems sensible since the day
and night crews performed the same work and received like
wages, would have posed the honest appearance of a true
reduction in force, whereas the layoff of the entire night
crew, almost all of whom had signed union cards, would
present a discriminatory look. That this must have been the
Respondent' s intent is evident from the fact that it did not
beneficially follow seniority until it had reaped the benefits
of the discouraging effects of the mass layoffs. Additionally,
at the time of the layoffs, the Respondent picked up the tab
for work not performed on Friday, a reminder of the fist
inside the velvet glove.
The Respondent further asserts that Crawford "acted at
the only time when a reasonably prudent businessman
would have acted" in respect to the timing of the layoffs, yet
during his inaction the Respondent expended 4,200 man
hours on Hull 110 between July 24 and August 10, of which
1,870 hours were expended between August 1 and 8. If an
economic need to stop construction on Hull 110 was the
incentive, it indeed seems imprudent to have delayed for
such a length of time before action was taken. The Respon-
dent rationalizes this delay by asserting that Crawford, after
completing the ABS plans on August 8, "was at last freed
up to consider the next needful moves in running his busi-
ness economically while awaiting approval." The fact is that
it really made no difference whether the Respondent contin-
ued work on the Hull "awaiting approval," for the construc-
tion of the Hull had already continued over period of 6
months when prospects of the Port Arthur Towing
Company' s securing an insured loan were negligible since
there was no certainty and slight probability that it could
meet the financial requirements for such insurance. It seems
plain that the Port Arthur Towing Company intended to
construct the Hull whether the insurance was obtained or
not and that the ABS classification requirement was not the
real cause for curtailing production, but that the advent of
the Union was the real cause. Such conclusion accords with
Crawford's subsequent action when he was faced with a
similar situation on November 21, 1972 (the lack of approv-
al from ABS allegedly necessary to proceed with the con-
struction of the Hull). No layoffs were effected.
Moreover, it does not appear that Crawford, in arriving
at his alleged decision, considered that there was sufficient
repair work in the yard to have accommodated the laid-off
employees with work,38 that the layoff of the night shift
38 "An inference of discrimination may be drawn from the Company's
failure to consider whether it had other work for [these] employees[sl." Ster-
ling Aluminum Co. v. N.L.R.B., 391 F.2d 713, 722 (C.A. 8, 1968), In. 8.
FREDEMAN'S CALCASIEU LOCKS SHIPYARD 409
would increase overtime which the night shift had been
established to reduce, and that the time element for obtain-
ing approval from ABS (about 5 weeks) may have rendered
imprudent, from an operational standpoint, the layoff of
any employees. Indeed, it seems incredulous that the Re-
spondent would not have inquired of ABS as to when it
could expect approval of its plans so that it could have
scheduled its work accordingly. A lapse in this respect
strongly suggests that at the time the plans were submitted
the delay involved in obtaining the approval was of no
moment and that the approval of the ABS, construction-
wise, became important only upon the advent of the Union.
According to the Respondent, the night shift was inaugu-
rated because of a shortage of equipment and to decrease
overtime and was eliminated because it proved inefficient.
If such were the Respondent's apprehension there appears
no plausible explanation as to why it did not terminate the
night shift when the equipment shortage was corrected.39
This it did not do until the Union appeared. Moreover,
overtime increased upon the elimination of the night shift.
Another equally specious reason advanced for the elimina-
tion of the night shift was that Crawford knew that there
would swiftly be vacancies on the day shift for the night
shift crew. However, the fact is that during the period from
August 11 to September 12 (the time which transpired
awaiting ABS approval), 12 night-shift employees were re-
called although only 3 employees were terminated. It was
the present need for work and not the vacancies which
generated the need for recall.
These factors, as well as those set out above supporting
the General Counsel's prima facie case, strongly confirm
that the night-shift layoff was in reprisal for the employees'
associating with the Union. The Respondent's attempt to
cloak itself with propriety falls short and its sophisticated
tactics are unconvincing. Moreover, the Employer must
have foreseen that the layoff of the night-shift employees
shortly after they had signed union cards without any expla-
nation to the day shift employees, and after employees had
been told there would be no layoffs, would be interpreted
by the day-shift employees as a reprisal against the night
employees for signing union cards. ° The swift elimination
of a substantial number of prounion employees is a sure
means of discouraging membership in the Union and de-
feating a union organization drive. The layoff of the night
shift employees was but another unfair labor practice by
which the Respondent sought to and did drive the union
organization from its shipyard. The Respondent used the
ABS incident as a cover up for its unlawful acts. Its real
motive in laying off the night-shift employees was to dis-
courage employees from becoming or remaining members
of the Union. The existence of a reason for the layoffs is of
no avail as a defense if the layoffs were actually effected as
here, for an improper purpose.
This language in Sheffer Corporation, 158 NLRB 148, 152,
3' Broussard testified that he had never recommended that the night shift
be eliminated.
40 " a man is held to intend the foreseeable consequences of his con-
duct. . Concluding that encouragement or discouragement will result, it
is presumed that he intended such consequence " The Radio Officers' Union
of the Commercial Telegraphers Union, AFL-CIO [A H Bull Steamship Co.]
v. N.L.R.B, 347 U S. 17, 45
fits the instant case:
The timing of the discharges, the clear knowledge by
the Respondent that the focal point of organizational
activities was in the night shift, an admitted opposition
by the Respondent's president to any union activities
at all, the sudden, unannounced decision coupled with
the completely unorthodox method for implementing
the layoffs . . . these are facts which point convincing-
ly to an inference of illegal motivation in the extraordi-
nary change in the Company's operations, a mass
layoff for which there was no precedent throughout the
Company's history... .
This language from the case of Textile Workers v. Dar-
lington Co., 389 U.S. 263, 275, is apposite:
a partial closing is an unfair labor practice under
§ 8(a)(3) if motivated by a purpose to chill unionism in
any of the remaining [shifts] of the single employer and
if the single employer may reasonably have foreseen
that such closing would likely have that effect.
Accordingly, it is found that by the layoff of night-shift
employees on August 11, 1972, the Respondent violated
Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will effec-
tuate the purposes of the Act for jurisdiction to be exercised
herein.
3. By interfering with, restraining, coercing employees in
the exercise of their rights guaranteed them by Section 7 of
the Act, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
4. By unlawfully laying off the following night shift em-
ployees, Joseph Vincent, Willie Simmons, Garland Reed,
Donald James Kershaw, James Fruge, Chris Guidry, Mi-
chael Leon, Ray Bumgarden, Danny Herrington, Larry L.
Simmon, Gerald Wayne Welch, Allan Walker, Ovie R.
Reeves, Terry Walker, Roger D. Stewart, Donald W. Par-
ker, Robert Beason , Daniel D. Rhodes, and Arthur E.
Wright, on August 11, 1972, the Respondent engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE RECOMMENDED REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)(1)
of the Act, it is recommended that it cease and desist there-
from and take certain affirmative action designed to effec-
tuate the policies of the Act.
It having been found that the Respondent unlawfully laid
off the night-shift employees listed above and thereby vio-
lated Section 8(a)(1) and (3) of the Act, it is recommended
that the Respondent remedy such unlawful conduct. It is
recommended that the Respondent make each of said em-
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees whole for any loss of earnings they have suffered as
a result of the discrimination against them by payment to
each of them a sum of money equal to the amount he would
have earned from the date of his discriminatory layoff to the
date of his reinstatement to his former position or a substan-
tially equivalent position, less net earnings during such peri-
od to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289, and including interest at the rate of 6 percent
per annum as set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
In accordance with Mission Rubber Company, Inc., 202
NLRB No. 17, it is further recommended that the Respon-
dent offer each of said laid off employees immediate and
full reinstatement to such employee's former job or, if such
job no longer exists, to a substantially equivalent job with-
out prejudice to such employee's seniority and other rights
and privileges.
[Recommended Order omitted from publication.]