GFC Crane Consultants

National Labor Relations Board - Board Decisions

Aug 29, 2008

352 N.L.R.B. 1236 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 142
1236
GFC Crane Consultants, Inc. and District No. 1-
Pacific Coast District, Marine Engineers Benefi-
cial Association, AFL–CIO. Cases 12–CA–
21302, 12–CA–21321, 12–CA–21496, and 12–
CA–21537
August 29, 2008
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On April 4, 2002, Administrative Law Judge Pargen
Robertson issued the attached decision. The Respondent
filed exceptions and a supporting brief, an answering
brief, and a reply brief; the General Counsel filed cross-
exceptions, an answering brief, and a reply brief; and the
Charging Party filed an answering brief to the Respon-
dent’s exceptions.
On September 30, 2006, the Board remanded the case
to the judge for further consideration in light of the
Board’s decisions in Oakwood Healthcare, Inc., 348
NLRB 686 (2006), Croft Metals, Inc., 348 NLRB 717
(2006), and Golden Crest Healthcare Center, 348 NLRB
727 (2006).1
On February 9, 2007, Judge George Carson II (Judge
Robertson had retired) issued the attached supplemental
decision. The Respondent filed exceptions,2 a supporting
brief, and a reply brief. The General Counsel and the
Charging Party each filed an answering brief.
The National Labor Relations Board has considered
the decisions and the record in light of the exceptions3
and briefs and has decided to affirm the judges’ rulings,

1 348 NLRB 871.
2 The Respondent has excepted to some of the credibility findings.
The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
3 In the absence of exceptions, we adopt the findings that the Re-
spondent violated Sec. 8(a)(5) by refusing to arbitrate grievances and
by “threatening” to implement changes in terms and conditions of
employment; and violated Sec. 8(a)(1) by threatening employees that it
no longer recognized the Union and was going to fill bargaining unit
jobs with nonbargaining unit employees. These findings do not consti-
tute precedent for other cases. Colgate-Palmolive Co., 323 NLRB 515
fn. 1 (1997); see also Anniston Yarn Mills, 103 NLRB 1495 (1953).
The Respondent excepts to the finding that the Respondent violated
Sec. 8(a)(1) by telling its employees that they had better talk to the
Respondent’s president if they wanted to keep their jobs while the
parties were engaged in collective bargaining; and that they could con-
tinue to perform the same job but would have to leave the Union. The
Respondent, however, presented no argument in support of these ex-
ceptions. Therefore, in accordance with Sec. 102.46(b)(2) of the
Board’s Rules and Regulations, we disregard these exceptions. See
Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd.
456 F.3d 265 (1st Cir. 2006).
findings,4 and conclusions5 as modified herein and to
adopt the recommended Order as modified6 and set forth
in full below.7
1. We agree with the judge, for the reasons set forth in
his decision, that the Respondent’s discharge of the port
engineers and replacement of them with the crane main-
tenance technicians (CMTs) violated Section 8(a)(3) of
the Act. In doing so, we particularly rely on the pretex-
tual nature of the Respondent’s asserted reasons for its
actions, which reasons demonstrate the Respondent’s
animus towards its employees’ protected union activity.
According to the Respondent, the port engineers were
discharged because (1) there was less work for them to
perform because of a downturn in cargo, (2) the Respon-
dent wanted to upgrade its work force by hiring a more
skilled set of employees, the CMTs, and (3) the Union’s
unreasonable wage demands triggered a restructuring of
operations. We find that the record does not support any
of these contentions.
First, the Respondent’s contention that there was less
work for the port engineers is contradicted by the testi-

4 We adopt the finding that the Respondent violated Sec. 8(a)(5)
when it laid off employee Jody Thomas. In light of this finding, we
find it unnecessary to pass on the finding that the layoff violated Sec.
8(a)(3), as such a finding would not materially affect the remedy.
5 We find it unnecessary to pass on the finding that the Respondent
violated Sec. 8(a)(5) by unilaterally restructuring its operations. This
finding is cumulative of the following violations, and would not mate-
rially affect the remedy: the unilateral reduction of unit employees,
unilateral layoffs, refusal to meet and bargain without first receiving
written proposals, the refusal to arbitrate grievances, the unilateral
implementation of different terms and conditions of employment, the
unilateral posting of the CMT position and interviewing of candidates,
the withdrawal of recognition, the unilateral filling of CMT positions,
and the unilateral discharge of employees. We have modified the Order
and notice accordingly.
In adopting the finding that the Respondent violated Sec. 8(a)(5) by
engaging in bad-faith bargaining, we rely on the fact that the Respon-
dent, on January 23, 2001, unilaterally implemented changes in terms
and conditions of employment when the parties were not at impasse.
Grosvenor Resort, 336 NLRB 613, 617 (2001) (“Consistent with
[NLRB v. Katz, 369 U.S. 736, 743 (1962)], the Board has long held that
an employer’s unilateral changes in mandatory conditions without
bargaining to a lawful impasse indicates [sic] bad faith in bargaining.”).
6 We shall modify the recommended Order to more accurately re-
flect the violations found and shall substitute a new notice to conform
its language to that set forth in the Order. We have also modified the
Order to provide a remedy for the unilateral changes made on January
23, 2001, which was inadvertently omitted from the recommended
Order.
7 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
GFC CRANE CONSULTANTS 1237
mony of Robert Flint, the director of operations for the
port (and not an employee of the Respondent). Flint tes-
tified, without contradiction, that a downturn in cargo
would not necessitate fewer port engineers because they
would still be needed to perform preventive maintenance
on the cranes.
Second, the Respondent’s contention that it wanted to
upgrade its work force is contradicted by the testimony
of the Respondent’s president, Gerry Charlton, who testi-
fied that he had hoped that the port engineers would fill
the CMT positions. Further, Charlton told port engineer
Timothy Herring that the jobs were the same. The record
bears this out, as the CMTs had the same duties as the
port engineers and there is no evidence of any differential
in pay. Nor were the CMTs more efficient in performing
the port engineers’ duties; by July 2001, there were just
as many CMTs as there were port engineers before the
discharges.8
Third, the Respondent’s contention that it restructured
operations because of the Union’s unreasonable wage
demands also is not supported by the record (even as-
suming that this would be a legally cognizable defense).
As the judge found, the Union’s wage demands were not
patently unreasonable. According to the credited testi-
mony, the Union initially sought a wage increase of
around 5 percent and reduced that demand at the No-
vember 7, 2000 bargaining session. Thus, the record
shows that the Union demonstrated flexibility with its
wage demands. Moreover, although the Respondent’s
chief negotiator, Thomas Wotring, testified that the re-
structuring was due, in part, to the Union’s unreasonable
wage demands, the Respondent introduced no evidence
to corroborate this assertion.
Lastly, the explanation the Respondent gave to the port
engineers for discharging them reveals pretext. The ter-
mination letters explained to the port engineers that they
were being released because each had been given the
opportunity to apply for a CMT position, but none had
done so. However, the Respondent had never previously
informed the port engineers that their failure to apply for
a CMT position would jeopardize their continued em-
ployment. Thus, the Respondent’s stated justification is
contrived, and buttresses the conclusion that the Respon-
dent harbored animus towards the employees’ protected
union activity. See National Steel & Shipbuilding Co.,
324 NLRB 1114, 1119 fn. 11 (1997) (a finding of pretext
“supports the General Counsel’s showing of discrimina-
tion and defeats any attempt by Respondent to show it

8 Although employee Marc Aloisio testified that some CMTs pos-
sessed additional skills to operate a type of crane that was not present at
the port, this testimony does not establish that the CMTs were more
skilled than port engineers in the work actually assigned them.
would have acted the same way absent discrimination”);
see also Shattuck Denn Mining Corp. v. NLRB, 362 F.2d
466, 470 (9th Cir. 1966).
2. We agree with the judge that an affirmative bar-
gaining order is warranted in this case as a remedy for
the Respondent’s unlawful withdrawal of recognition
from the Union. The Board has previously held that an
affirmative bargaining order is “the traditional, appropri-
ate remedy for an 8(a)(5) refusal to bargain with the law-
ful collective-bargaining representative of an appropriate
unit of employees.” Caterair International, 322 NLRB
64, 68 (1996); see also Parkwood Developmental Center,
347 NLRB 974, 976–977 (2006); Alpha Associates, 344
NLRB 782, 787 (2005).
In several cases, however, the United States Court of
Appeals for the District of Columbia Circuit has required
the Board to justify, based on the facts of each case, the
imposition of an affirmative bargaining order. See, e.g.,
Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727
(D.C. Cir. 2000); Lee Lumber & Building Material Corp.
v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); and
Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C.
Cir. 1994). In Vincent Industrial Plastics, supra, the
court stated that an affirmative bargaining order “must be
justified by a reasoned analysis that includes an explicit
balancing of three considerations: (1) the employees’ § 7
rights; (2) whether other purposes of the Act override the
rights of employees to choose their bargaining represen-
tatives; and (3) whether alternative remedies are adequate
to remedy the violations of the Act.” 209 F.3d at 738.
Consistent with the court’s requirement, we have exam-
ined the particular facts of this case and find that a bal-
ancing of the three factors warrants an affirmative bar-
gaining order.9
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Re-
spondent’s unlawful withdrawal of recognition and its
resulting refusal to bargain with the Union. The basis for
Respondent’s withdrawal—that the port engineers are
supervisors—lacks merit, and the Respondent has prof-
fered no other basis on which it lawfully could have

9 Chairman Schaumber does not agree with the view expressed in
Caterair International, supra, that an affirmative bargaining order is
“the traditional, appropriate remedy for an 8(a)(5) violation.” He
agrees with the United States Court of Appeals for the District of Co-
lumbia Circuit that a case-by-case analysis is required to determine if
the remedy is appropriate. Alpha Associates, 344 NLRB 782, 787 fn.
14 (2005). He recognizes, however, that the view expressed in Caterair
International, supra, represents extant Board law. Flying Foods, 345
NLRB 101, 109 fn. 23 (2005). Regardless of which view is applied to
the instant case, Chairman Schaumber agrees that an affirmative bar-
gaining order is warranted here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1238
withdrawn recognition. The Respondent’s unlawful con-
duct demonstrated a disregard for the employees’ Section
7 right to select union representation, and the Respon-
dent’s conduct would tend to unfairly undermine con-
tinuing support for the Union. This is particularly true
given the Respondent’s commission of several unfair
labor practices prior to its withdrawal of recognition. By
the time the Respondent had withdrawn recognition, it
had also unilaterally laid off employee Jody Thomas,
unilaterally implemented other changes to terms and
conditions of employment, refused to bargain in good
faith, and posted the notice to hire CMTs who would
replace the unlawfully terminated unit members in the
performance of unit work. Thus, the Respondent’s dis-
regard of employees’ Section 7 rights is manifest, and an
affirmative bargaining order is needed to compel the Re-
spondent to respect those rights.
At the same time, an affirmative bargaining order, with
its attendant bar to raising a question concerning the Un-
ion’s continuing majority status for a reasonable time,
does not unduly prejudice the Section 7 rights of em-
ployees who may oppose continued union representation.
Thus, the order is not of indefinite duration but is for a
reasonable period of time sufficient to allow good-faith
bargaining that the Respondent’s unlawful withdrawal of
recognition cut short. It is only by restoring the status
quo ante and requiring the Respondent to bargain with
the Union for a reasonable period of time that the em-
ployees’ Section 7 right to union representation will be
vindicated. An affirmative bargaining order also will
give employees an opportunity to fairly assess the Un-
ion’s effectiveness as a bargaining representative and
determine whether continued representation by the Union
is in their best interests.
(2) An affirmative bargaining order also serves the
Act’s policies of fostering meaningful collective bargain-
ing and industrial peace. It removes the Respondent’s
incentive to delay bargaining in the hope of discouraging
support for the Union, and it ensures that the Union will
not be pressured to achieve immediate results at the bar-
gaining table—results that might not be in the employ-
ees’ best interests. It fosters industrial peace by reinstat-
ing the Union to its rightful position as the bargaining
representative chosen by a majority of the employees.
Also, as mentioned, providing this temporary period of
insulated bargaining will afford employees a fair oppor-
tunity to assess the Union’s performance in an atmos-
phere free of the effects of the Respondent’s unlawful
withdrawal of recognition and refusal to bargain.
(3) The alternative remedy, of a cease-and-desist order
alone, would be inadequate to remedy the Respondent’s
withdrawal of recognition and refusal to bargain with the
Union because it would allow a challenge to the Union’s
majority status before the employees had a reasonable
time to regroup and bargain with the Respondent through
their chosen representative in an effort to reach a collec-
tive-bargaining agreement. Such a result would be espe-
cially unfair where the Respondent’s unlawful refusal to
recognize and bargain with the Union first occurred sev-
eral years ago. Allowing a challenge to the Union’s ma-
jority status before a reasonable period for bargaining has
elapsed also would be unfair in light of the fact that the
litigation of the Union’s charges took several years and,
as a result, the Union needs to reestablish its representa-
tive status with unit employees. Indeed, permitting a
decertification petition to be filed immediately might
very well allow the Respondent to profit from its own
unlawful conduct. We find that these considerations
outweigh the affirmative bargaining order’s temporary
suspension of the decertification rights of employees
who might oppose continued union representation.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the violations in this
case.
ORDER
The National Labor Relations Board orders that the
Respondent, GFC Crane Consultants, Inc., Fort Lauder-
dale, Florida, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Eliminating bargaining unit positions without noti-
fying and bargaining with the Union, District No. 1-
Pacific Coast District, Marine Engineers Beneficial As-
sociation, AFL–CIO (Union).
(b) Laying off port engineers without notifying and
bargaining with the Union.
(c) Refusing to meet and bargain with District No. 1-
Pacific Coast District, Marine Engineers Beneficial As-
sociation, AFL–CIO, its port engineer employees’ exclu-
sive collective-bargaining representative, unless the Un-
ion first submits its contract proposals in writing.
(d) Refusing to arbitrate grievances after request by the
Union in accord with the grievance procedure as set forth
in the parties’ 1995 collective-bargaining agreement.
(e) Threatening to implement and unilaterally imple-
menting different terms and conditions of employment
for unit employees10 although the parties had not bar-
gained to impasse.
(f) Posting a notice of openings for and interviewing
applicants including unit employees for job openings as

10 Any reference to unit employees does not include the positions of
senior port engineer or supervisory port engineer.
GFC CRANE CONSULTANTS 1239
CMTs to perform port engineer bargaining unit work,
even though CMTs were not bargaining unit employees,
without notifying and bargaining with the Union.
(g) Withdrawing recognition from the Union as the
bargaining unit employees’ collective-bargaining repre-
sentative.
(h) Requiring its employees to avoid supporting the
Union.
(i) Discharging or otherwise discriminating against any
employee for supporting the Union or any other labor
organization.
(j) Threatening its employees that it no longer recog-
nized the Union and was going to fill bargaining unit
jobs with nonbargaining unit employees.
(k) Telling its employees that they had better talk to its
president if they wanted to keep their jobs while the em-
ployer and the Union were engaged in collective bargain-
ing.
(l) Telling its employees that they could continue to
perform their same job but they would have to leave the
Union.
(m) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the unilateral changes it made, including
the reduction and lay off of unit employees, the imple-
mentation of different terms and conditions of employ-
ment for unit employees on January 23, 2001, the crea-
tion of the CMT position and posting of CMT job open-
ings, and the filling of CMT positions; provided, how-
ever, that nothing in this Order shall be construed as re-
quiring the Respondent to rescind any unilateral change
that benefited the unit employees unless the Union re-
quests such action.
(b) On request, bargain in good faith with the Union as
the exclusive representative of the port engineer employ-
ees concerning wages, hours, and other terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement.
(c) Within 14 days of this Order, offer full and imme-
diate reinstatement to employees Jody Thomas, Michael
Crehan, Timothy Herring, Peter Leahy, Randolph Veiga,
and Scott Zinsius to their former jobs, or if those jobs no
longer exist, to substantially equivalent positions without
loss of seniority and benefits.
(d) Make Thomas, Crehan, Herring, Leahy, Veiga, and
Zinsius whole for any loss of earnings and other benefits
suffered as a result of the unlawful terminations, in the
manner set forth in the remedy section of the judge’s
decision.
(e) Make whole employees for any loss of earnings
and other benefits they may have suffered as a result of
the unilateral changes implemented on January 23, 2001,
in accordance with Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971) with in-
terest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
Crehan, Herring, Leahy, Veiga, and Zinsius, and within 3
days thereafter notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way.
(g) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(h) Within 14 days after service by the Region, post at
its Port Everglades, Florida Midport and Southport facili-
ties, copies of the attached notice marked “Appendix.”11
Copies of the notice, on forms provided by the Regional
Director for Region 12, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since November 30, 2000.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1240
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT eliminate bargaining unit positions with-
out notifying and bargaining with the Union, District No.
1-Pacific Coast District, Marine Engineers Beneficial
Association, AFL–CIO (Union).
WE WILL NOT lay off port engineers without notifying
and bargaining with the Union.
WE WILL NOT refuse to meet and bargain with District
No. 1-Pacific Coast District, Marine Engineers Benefi-
cial Association, AFL–CIO, our port engineer employ-
ees’ exclusive collective-bargaining representative, un-
less the Union first submits contract proposals in writing.
WE WILL NOT refuse to arbitrate grievances after re-
quest by the Union in accord with the grievance proce-
dure as set forth in the 1995 collective-bargaining agree-
ment.
WE WILL NOT threaten to implement and unilaterally
implement different terms and conditions of employment
for our unit employees although the parties had not bar-
gained to impasse.
WE WILL NOT post a notice of openings for and inter-
view applicants including unit employees for job open-
ings as CMTS to perform bargaining unit work even
though CMTs are not bargaining unit employees without
notifying and bargaining with the Union.
WE WILL NOT withdraw recognition from the Union as
the bargaining unit employees’ collective-bargaining
representative.
WE WILL NOT require our employees to avoid support-
ing the Union.
WE WILL NOT discharge or otherwise discriminate
against any employee for supporting the Union or any
other labor organization.
WE WILL NOT threaten our employees that we no longer
recognize the Union and are going to fill bargaining unit
jobs with nonbargaining unit employees.
WE WILL NOT tell our employees that they had better
talk to our president if they want to keep their jobs while
we are engaged with the Union in collective bargaining.
WE WILL NOT tell our employees that they can continue
to perform their same job but that they will have to leave
the Union.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL rescind the unilateral changes we made, in-
cluding the reduction and lay off of unit employees, the
implementation of different terms and conditions of em-
ployment for unit employees, the creation of the CMT
position and posting of CMT job openings, and the fill-
ing of CMT positions.
WE WILL on request and within 14 days thereafter, rec-
ognize and bargain with the Union in good faith as the
exclusive representative of the port engineer employees
at Port Everglades, concerning terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement.
WE WILL on request and within 14 days thereafter, re-
instate all laid off and terminated port engineers and, if
necessary, discharge employees hired to replace those
port engineers.
WE WILL within 14 days of this Order, offer full and
immediate reinstatement to employees Jody Thomas,
Michael Crehan, Timothy Herring, Peter Leahy, Rudolph
Veiga, and Scott Zinsius to their former jobs, or if those
jobs no longer exist, to substantially equivalent positions
without loss of seniority and benefits.
WE WILL make Thomas, Crehan, Herring, Leahy,
Veiga, and Zinsius whole for any loss of earnings and
other benefits suffered as a result of the unlawful termi-
nations.
WE WILL make whole employees for any loss of earn-
ings and other benefits they may have suffered as a result
of the unilateral changes implemented on January 23,
2001.
WE WILL within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charges of Crehan, Herring, Leahy, Veiga, and Zinsius,
and within 3 days thereafter notify the employees in writ-
ing that this has been done and that the discharges will
not be used against them in any way.
GFC CRANE CONSULTANTS, INC.
Suzy Kucera, Esq., for the General Counsel.
GFC CRANE CONSULTANTS 1241
John Mills Barr, Esq. and Mary D. Walsh, Esq., of Washington,
D.C., for the Respondent.
Richard J. Hirn, Esq., of Washington, D.C. for the Charging
Party.
DECISION
STATEMENT OF THE CASE
PARGEN ROBERTSON, Administrative Law Judge. This case
was heard in Tampa, Florida, on December 10 through 14,
2001. The charges were filed between February 2 and 22,
2001,1 and an amended consolidated complaint issued on Sep-
tember 10, 2001.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by Respondent and the General Counsel, I make the following
findings.
I. JURISDICTION
GFC Crane Consultants, Inc., is a California corporation,
with facilities located at the Midport and Southport locations at
Port Everglades in Ft. Lauderdale, Florida, where it provides
services affecting maintenance and repair of commercial gantry
cranes pursuant to a contract or contracts with Broward County,
Florida.2 Respondent admitted that during the past 12 months,
in conducting its business operations at Port Everglades, it de-
rived gross revenues in excess of $1 million and provided ser-
vices valued in excess of $50,000 directly to Broward County,
an entity directly engaged in interstate commerce. I find that the
admission and the record show that Respondent has been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the National Labor Relations Act at all
times material.
II. LABOR ORGANIZATION
The parties stipulated that District No. 1-Pacific Coast Dis-
trict, Marine Engineers Beneficial Association, AFL–CIO (the
Charging Party), is a labor organization as defined in Section
2(2) of the Act.
III. RESPONDENT CONTENDED THE PORT ENGINEERS
WERE SUPERVISORS
Until 2001, Respondent’s work force at Port Everglades was
made up of teams of a port engineer and one or two electri-
cians. A supervisory port engineer, a senior port engineer, and
Respondent’s president supervised the teams.3 Each team4 of a

1 In view of Respondent’s answer and documents received in evi-
dence, I find the charges were filed on February 2 and 12, and May 1
and 22, 2001.
2 The record shows that Broward County acted through Port Ever-
glades and the entity representing Broward County is sometimes re-
ferred to as Port Everglades.
3 Respondent’s president was Gerald Charlton.
4 Respondent submitted monthly invoices to Port Everglades that in-
cluded wages of employees. Until December 2000, the invoices sepa-
rated employees into two categories—supervisors and mechanics (GC
Exh. 8). Beginning in mid-December and continuing until the week
ending July 15, 2001, the invoices separated employees into “supervi-
sors/technicians” and “mechanics.” (GC Exh. 11, 12.) For the week
ending July 10, 2001, Respondent submitted invoice 2001/28, and
port engineer and one or two electricians was assigned a crane
and each team had two missions,—scheduled maintenance and
cargo watch. Maintenance was considered preventive and the
tasks included greasing crane parts, changing oil, performing
all tasks required by warranty procedures and inspections. Each
team performed scheduled inspections on monthly, 3-monthly,
and 6-monthly bases. All members of the crew including the
port engineer and the electrician(s) worked at the job at hand.
While working on maintenance assignments, all port engineers
did the same things as electricians which included greasing
crane parts, changing oil, performing all tasks required by war-
ranty procedures, and conducting inspections. Jody Thomas,
Tim Herring, and Rudy Veiga5 were some of those formerly
employed by Respondent as port engineers. Veiga testified that
he did not receive any special training from Respondent. Veiga
learned as he went along with his job. The only training re-
called by Veiga occurred in 1996 or 1997. At that time Re-
spondent employed a consultant at Midport who gave a few
days of instructions to the employees.
Scott Zinsios was a port engineer. He testified that the
Southport uniforms were the same for electricians and engi-
neers. The electricians for Midport wore blue or brown uni-
forms.
The teams performed cargo watches in addition to scheduled
maintenance. Cargo watches included setting up the crane,
doing preoperation testing and ensuring that each crane per-
formed properly. A crew was responsible for the repair of bro-
ken cranes. Because of the potential high cost of downtime by a
broken crane, rapid repair work was essential. In cases where a
crane could not resume operations within a 15–30 minute time-
frame, the port engineer was required to notify Port Everglades
and the senior port engineer or the supervisory port engineer
that there was a downtime situation. Supervisory port engineer,
Mark Aloisio, had final authority regarding repairs. The senior
port engineer or the supervisory port engineer or Gerald Charl-
ton were available 24 hours each day for problems and were in
daily contact with each team. The senior port engineer and the
supervisory port engineer were assigned to day shifts. Port
engineers worked three shifts including time each day when no
admitted supervisors were on duty at the port.
Tim Herring was promoted to port engineer in 1995. Mark
Aloisio was his supervisor when he last worked for Respon-
dent. Herring6 described his duties as overseeing the jobs.
When the job involved a cargo watch, usually one or two
cranes were assigned to a vessel. Herring described his cargo

listed Aloisio, Armstrong, Holbert, Johnson, Konefal, Piciolo, Rodri-
guez, Simpson, and Titus as “supervisors/technicians.” Invoice 2001/29
for the week ending July 15, 2001, also listed Aloisio, Armstrong,
Holbert, Johnson, Konefal, Piciolo, Rodriguez, Simpson, and Titus but
that invoice listed those employees under the heading “supervisors.”
Those nine employees continued to be listed under the “supervisors”
heading until invoice 2001/32. That invoice for the week ending Au-
gust 6, 2001, returned to listing Aloisio, Armstrong, Holbert, Johnson,
Konefal, Piciolo, Rodriguez, Simpson, and Titus under the heading
“supervisors/technicians.”
5 Veiga is now employed as the Union’s director of special projects.
6 Other port engineers testified about their job duties. For example
Jody Thomas testified about his authority at transcript pages 405–408.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1242
watch as being on standby and if anything happened to a crane,
it was his team’s responsibility to fix the crane. The crane
maintenance electricians (CME) had a leadman. That leadman
was Paul Titus shortly before Herring was terminated on Feb-
ruary 1, 2001. Before that the electrician leadman was Richard
Wilson.
Paul Titus testified that he is the lead CME. Titus was not
familiar with the term port engineers. Instead he knew those
employees as watch engineers or watch supervisors. Until
1999, teams included a watch engineer and two CMEs when
they were changed to one engineer and one CME for watch
while one CME, the lead CME and one engineer, formed the
day gang. Titus testified there was a company policy that an
engineer had to be present when there was a CME on the job.
The engineer assigned work to the crew. Work was assigned
through general discussions. Generally the crew was told of
their work on the day before. Titus testified there was a “block
maintenance board.” On that board, “there was four or five, six
different items. And it varied month to month, or some things
that had to be done every month, some had to be done every
three, every six months, or once, one or two things every year.”
Titus testified that if he was running late for work or if he
needed to leave work early, he would contact the watch engi-
neer for his crew. If he wanted a personal day off a week or so
ahead, he would contact the senior port engineer. If a CME was
sick he would call in and leave a message. Sometimes a crew
worked late and it was the watch engineer that asked them to
stay late. Titus recalled an incident where a watch engineer said
that he did not believe a CME knew what he was doing on the
job. He could not recall any occasion where a watch engineer
sent a CME off the job. Titus testified that the watch engineer
spent at least 50 percent of his time working with the crew. As
to who told him what repairs to perform on the crane Titus
testified, “Usually, they are minor damage, flippers and stuff of
that nature. The watch supervisor (i.e., port engineer) would be
aware of what stuff we were going to do, usually changing
spring arms, minor damage. It would be approved by him just
to get the parts and do it.”
According to Paul Titus, cargo work was assigned to the
whole watch and it was pretty much a group effort to handle the
cargo watch. The engineer decided which members of the crew
took up a particular position. In situations where a crane needed
repair the port engineer was required to notify Port Everglades
and the supervisory port engineer when downtime on a crane
ran into the 15–30 minute period, and the supervisory port en-
gineer decided whether to call in another crane.
Port engineers did some paperwork. Herring described the
paperwork as including rental sheets for cargo operations and
work orders. Whenever a team did a job, the port engineer de-
scribed what occurred including listing the parts used on the
job. Port engineers also completed inspection reports. During
his last year at work, Herring and his team, did basically all
inspections. He would turn in the inspection reports to Mark
Aloisio. Herring’s paperwork took up approximately 10 percent
to 15 percent of his worktime.
Herring testified that port engineers did not have authority to
hire, give warnings, grant oral warnings, transfer, grant suspen-
sion, grant promotions, grant raises in pay, or grant benefits. He
never recommended hiring, oral or written warnings, transfer,
and pay raise, or benefits, for any employee. Herring did not
recall an incident of an electrician complaining to him about
working conditions.
Tim Herring described one incident with an electrician
named Arnold de la Cruz. In 1995, Herring asked de la Cruz to
help move some parts from the county facility and de la Cruz
refused to perform the work. Herring phoned Gerald Charlton
and Charlton told him to get rid of de la Cruz. Herring told de
la Cruz that Charlton had said that de la Cruz’s services were
no longer needed. Occasionally Gerald Charlton or the former
senior port engineer asked Herring how a particular employee
was performing. Herring replied what he thought about that
employee’s strong or weak points. The former senior port engi-
neer asked Herring about Mark Aloisio’s job performance at a
time when Aloisio was an electrician on the crew with Herring.
Aloisio was promoted despite Herring telling the senior port
engineer that Aloisio was not ready for promotion. Herring told
the former senior port engineer that Aloisio was not trained in
the computer end of a crane.
The senior port engineer or supervisory port engineer made
assignments on weekly work lists or on a board. Herring testi-
fied that he did not prepare schedules nor did he make work
assignments other than routine assignments of tasks in further-
ance of posted work assignments. He testified that CMEs knew
their jobs and the work was routine work performed on
monthly or 3-monthly bases. A work list was maintained on
each crane showing such things as when the oil was to be
changed and when the wires were to be greased. Herring would
come in, pick up the work list, and make whatever assignments
were necessary to perform the work. When Herring wanted to
swap watches with another employee, he was required to get
permission from the senior port engineer, the supervisory port
engineer, or Gerald Charlton (GC Exh. 59–64). CMEs would
need to first tell their port engineer, and then get it approved by
the supervising port engineer.
Credibility
I was impressed with the demeanor and testimony of Tim
Herring, Rudy Veiga, Jody Thomas, and Scott Zinsios. I found
their testimony was detailed and complete as to the duties and
work of port engineers. Paul Titus also appeared to testify to
the best of his ability. However, Herring, Veiga, Thomas, and
Zinsios and not Titus, actually worked as port engineers. To the
extent there were conflicts in their testimony, I credit the testi-
mony of Tim Herring.
Findings
Respondent argued that its port engineers were supervisors
and, as such, not entitled to protection under the Act. It argued
that port engineers “responsibly directed GFC’s workforce
during cargo operations, bore responsibility for activities that
happened on their watch and were the senior company officials
present at the worksite for most of the standard work week.”
Respondent argued that port engineers also had the authority to
promote, evaluate, and discipline GFC employees or to effec-
tively recommend such action; and port engineers demonstrated
other indicia of supervisory action including higher wage rates,
different uniforms, the way they were presented by GFC to
GFC CRANE CONSULTANTS 1243
outside parties, and the way port engineers viewed themselves.
The 1993 and 1995 collective-bargaining agreements include
among the duties of the unit employees, “perform crane main-
tenance and repair; and other equipment maintenance and to
supervise the Company’s maintenance mechanics/electricians
in performing the maintenance.” (GC Exh. 5, art. 2, par. 6; GC
Exh. 7, art. 2, par. 2.6.) The 1995 collective-bargaining agree-
ment encourages “Port Engineers (CM) to participate in such
programs to enhance their supervisory and engineering skills.”
(GC Exh. 5, art. 27.4(c); GC Exh. 7, art. 27.4.)
Respondent pointed to a recent Supreme Court opinion
wherein the Board was overruled regarding its determination of
supervisory status. That case involved the question of whether
the issue of independent judgment should be treated differently
when it involved “ordinary professional or technical judgment
in directing less skilled employees to deliver services.” [NLRB
v. Kentucky River Community Care, Inc., 121 S.Ct. 1861
(2001).] Registered nurses were the employees at issue. The
Supreme Court considered that matter after a ruling by the
Sixth United Circuit Court of Appeals [Kentucky River Com-
munity Care, Inc. v. NLRB, 193 F.3d 444 (6th Cir. 1999)], on
October 4, 1999. It was during the time period after the Sixth
Circuit ruled and before the Supreme Court ruled, that Respon-
dent engaged in the activity alleged herein as unfair labor prac-
tices including its action in replacing some port engineers with
crane maintenance technicians.
Nevertheless, the issue should not be confused. There may
be a question regarding whether the port engineers exercised
independent “judgment in directing less skilled employees to
deliver services in accordance with employer-specified stan-
dards.” However, that question should not be confused with
similar questions regarding registered nurses. The port engi-
neers were not professionals nor were they trained technicians.
In Kentucky River, the Supreme Court held that the supervisor
question should not be compromised simply because the al-
leged supervisors are professional or technical personnel. In
other words, professional or technical employees should not be
held to a different standard than any other alleged supervisor.
Therefore, even if the port engineers qualified as professional
or technical, the issue should remain whether they exercised
independent judgment in directing the work of CMEs. That
issue has been considered by the Board in a large number of
cases including the recent ones of Alter Barge Line, Inc., 336
NLRB 1266 (2001), and Ingram Barge Co., 336 NLRB 1155
(2001). Respondent argued that Alter Barge and Ingram Barge
are similar to the instant situation. However, at issue in those
cases were river boat pilots and the pilots unlike the port engi-
neers, were fully responsible for the safety of the crew, the tug
boats, and groups of barges that were often several hundred
yards long, at times when the pilot was on duty. The pilots,
again unlike the port engineers, were licensed wheelhouse offi-
cers. Pilots did not perform routine work that other members of
the crew performed.
Counsel for the General Counsel argued that the test for de-
termining whether an employee is a supervisor was set out in
Cooper/T. Smith, Inc. v. NLRB, 325 NLRB No. 28 (not reported
in Board volumes), enfd. 177 F.3d 1259 (11th Cir. 1999): (1)
does the employee have the authority to engage in one of the 12
listed activities,7 (2) does the exercise of that authority require
the use of independent judgment, and (3) does the employee
hold the authority in the interest of the employer.
I find the credited evidence failed to support Respondent’s
argument that port engineers “responsibly directed GFC’s
workforce during cargo operations, bore responsibility for ac-
tivities that happened during their watch and were the senior
company officials present at the worksite for most of the stan-
dard work week.” Instead the record showed that port engineers
performed the same work as other members of a crew and en-
gaged in routine judgment in assigning each member of the
crew to perform preassigned work. The port engineers did not
exercise independent judgment. In the most pressing situation,
—i.e., the determination of whether a down crane should be
replaced by another crane,—the port engineer simply notified
Port Everglades and the supervisory port engineer of the prob-
lem. It was the supervisory port engineer that made the decision
of whether or not to call up a new crane to replace the one
needing repair.
Contrary to Respondent’s argument, the evidence proved
that port engineers did not have authority to promote, evaluate,
or discipline GFC employees or to effectively recommend such
action. The port engineers were not shown to have “authority to
hire, transfer, suspend, lay off, recall, promote, discharge, as-
sign, reward, or discipline other employees, or responsibly to
direct them, or adjust grievances, or effectively recommend
such action.” I find that the port engineers were not supervisors.
Instead the port engineers were employees entitled to the pro-
tection of the Act including the right to engage in union activ-
ity.
IV. CALENDAR OF EVENTS INCLUDING ALLEGED
UNFAIR LABOR PRACTICES
Respondent and the Union have been parties to successive
collective-bargaining agreements from 1993, until the most
recent contract expired in 2000. The 1993 bargaining unit in-
cluded senior port engineers, supervisory port engineers, port
engineers, and assistant port engineers. During the 1993 con-
tract, Respondent’s bargaining unit actually included one senior
port engineer, one supervisory port engineer, two port engi-
neers, and no assistants.
The 1995 collective-bargaining agreement was effective
from August 14, 1995, through August 13, 2000. The bargain-
ing unit in that contract included all port engineers. The 1995
contract was extended from August 13 to September 13, 2000
(GC Exh. 32). In the fall of 2000, Respondent employed 7 port
engineers in the bargaining unit. Those seven were Michael
Crehan, Timothy Herring, Peter Leahy, Rudolph Veiga, Scott
Zinsius, Jody Thomas, and Michael Galka and all seven were
members of the Union. Respondent also employed supervisory
port engineer, Mark Aloisio, and senior port engineer, Stanley
Ciecierski. The parties stipulated that both Aloisio and Ciecier-
ski were supervisors. In view of the full record I find that at

7 The activities include authority to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline other employ-
ees, or responsibly to direct them, or adjust grievances, or effectively
recommend such action.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1244
material times, “all port engineers” constituted an appropriate
bargaining unit.
Several other employees worked at Midport and Southport at
Port Everglades on the gantry cranes in the fall of 2000. All
those employees were classified as crane maintenance electri-
cians (CME). Three crane maintenance electricians worked at
Respondent’s Midport facility and nine crane maintenance
electricians worked at its Southport facility. The CMEs em-
ployed by Respondent at Southport and the CMEs employed at
Midport by a subcontractor,—Eller, Inc.—were represented by
different labor organizations (i.e., Seafarers International Union
and International Longshoremen’s Association).
Respondent signed a new 5-year agreement with Broward
County on April 13, 2000. Broward County signed the contract
on May 2, 2000 (GC Exh. 4).
On May 16, 2000, the Union notified Respondent that it
wished to negotiate a modification of the contract (GC Exh.
30). On May 30, Respondent notified the Union that it wished
to terminate the contract (GC Exh. 31). The parties met infor-
mally before the first formal negotiation session. Paul Krupa,
the chief negotiator for the Union, testified that Respondent
owner, Gerald Charlton, made signals that he didn’t know if he
wanted to continue our relationship. Charlton was talking about
other unions and he didn’t need MEBA.
The first formal negotiation session was held on September
8. Thomas Wotring represented Respondent and Paul Krupa
and Richard Hirn represented the Union. Respondent met with
the Union for negotiations at various times from September into
December 2000. Respondent submitted a written contract pro-
posal (GC Exh. 33), which was dated September 8. The Union
faxed Respondent a written proposal on September 27 (GC
Exh. 34). The parties met in an October 6 negotiating session.
Respondent made a proposal, which included a $2000 signing
bonus for each employee and a 2-percent base wage increase
each year for the 5-year term of the proposed contract (GC Exh.
35). The parties reached agreement on some issues.
The parties next met on October 17. The Union proposed re-
duction of its original proposed base wage rate by $1000. The
parties held a November 7 bargaining session. The outstanding
issues at the end of the November 7 meeting included wages,
senior port engineer’s grievance authority, overtime calcula-
tions, and seniority layoff provisions.
In regard to the alleged unfair labor practices, the General
Counsel alleged that Respondent’s conduct was unlawful (see
captions below which are stated in bold):
November 14 and December 8 and 15, 2000
Offered regressive collective bargaining proposals includ-
ing decreased wage rates and removing work from the
unit.
November 14 and December 15, 2000 and
January 2 and 16, 2001
Refused to meet and bargain after request by the Union.
November 14 and December 19, 2000 and
January 21, 2001
Prematurely declared impasse and threatened to imple-
ment its last proposal.
November 28, 2000 and January 2, 8 and 16, 2001
Insisted on written counterproposals from the Union be-
fore negotiating.
November, December 6 and 11, 2000
Assigned bargaining unit work to individuals outside the
unit:
December 13, 2000
Laid off it employee Jody Thomas.
January 23, 2001
Implemented a retroactive 1.5% wage increase and
changed other terms and conditions of employment.
January 24, 2001
Posted an announcement of a newly created posi-
tion of crane maintenance technician.
Changed the port engineer job classification to po-
sition of crane maintenance technician.
Late January 2001
By Gerald F. Charlton:
Threatened unit employees that non-union employ-
ees would perform their work.
Threatened unit employees that there would be no
payment of contractual benefits.
Threatened to discharge unit employees because of
the union.
By Ed Conden:
Threatened employees with discharge because of
the union.
January 29, 2001
Withdrew recognition of the Union.
February 1, 2001
Discharged all employees in the unit.
Continually assigned all bargaining unit work to
crane maintenance technicians.
By Gerald F. Charlton:
Promised employees job opportunities if they
abandoned their union membership.
November 14
Respondent’s chief negotiator wrote the Union’s Paul Krupa
on November 14, 2000 (GC Exh. 36):
This is in response to our most recent negotiations ses-
sion held in your office on Tuesday, November 7, 2000.
As we discussed, despite numerous meetings and the best
intentions from both sides, there appears to be no mean-
ingful movement on the part of either party toward a new
collective bargaining agreement. GFC has now operated
for approximately 60 days without a contract and it is be-
coming increasingly obvious that the productivity and mo-
GFC CRANE CONSULTANTS 1245
rale of our Union-represented supervisors is suffering. We
believe that our current impasse will only continue to in-
terfere with the performance of our work at Port Ever-
glades.
With the understanding that we are taking the follow-
ing course of action reluctantly, and only as a last resort,
GFC hereby extends its best and final offer for a contract
covering our MEBA-represented supervisors employed at
Port Everglades. Should this offer be rejected by the Un-
ion, it is our intention to implement its terms effective at
12:01 a.m., November 27, 2000. We believe that this time-
frame will provide the Union and the bargaining unit
members with an opportunity to carefully consider our of-
fer and make an informed decision.
With regards to our best and final offer, the terms of
that offer as to all open items of November 7, 2000, is as
follows:
(1) Section 12.2—Amend and delete the phrase “the
Port engineer (CM) with the least seniority” and add “the
“Company shall reduce the workforce based on qualifica-
tions, work performance and seniority.” Delete second
sentence.
(2) Section 23.1—Amend to delete automatic step in-
crease. Change dates to new five-year contract. Increase
base wage for the first year for each employee by 1.5%
with additional increases for each year as follows: year
two–3%; year three–3.5%; year four–3.5%; and year five–
4%.
(3) Section 24.1—Amend first sentence by adding
“unless such schedule is reduced due to reduced work-
loads, Port closings, weather or other circumstances be-
yond the Company’s control.”
Amend to delete existing second sentence and add new
second and third sentences as follows: “Overtime will be
paid at 1.5 times their regular hourly rate for every hour
actually worked in excess of 40 hours in a calendar week
(Monday through Sunday).
1. Section 36.1—Amend dates to reflect new five-year
agreement. As to all other open items as of November 7,
2000, the Company’s final proposal is that these items re-
main unchanged from the prior collective bargaining
agreement. All changes agreed to by the parties in our per-
vious negotiations sessions will be recognized by the
Company.
I trust that our position and our resolve is clear. If you
have any questions, please contact me.
The Union, through its attorney, Richard J. Hirn, responded
with a letter dated November 21, 2000 (GC Exh. 37). In that
letter the Union stated its belief that the parties were not at
impasse and pointed out:
“The parties have met only a few times. There are many open
issues. Many important issues have been discussed only
briefly and have been tabled. The company’s letter of No-
vember 14 contains new proposals that have not yet been dis-
cussed.”
The Union letter listed several examples of items it asserted
Respondent listed on November 14 that had not been discussed
during negotiations. The letter continued:
With regard to the key issue of wage rates, the com-
pany’s November 14 proposal is ambiguous and contains
either new or regressive elements that require further face-
to-face discussion. On the one hand, it appears from Mr.
Wotring’s letter that the company is now offering to place
all Port Engineers on the “first year” rather than the “start
year” salary rate in return for waiving further step in-
creases. This is good progress and needs to be explored
further. If that was not Mr. Wotring’s intent, the com-
pany’s latest proposal is less than its last offer, which was
a 2% initial wage increase, plus a $2,000 bonus, which
was not mentioned in Mr. Wotring’s letter. Simply stated,
it is unclear from Mr. Wotring’s letter what the company
is now proposing on this crucial issue.
For these reasons, it is clear to us that the parties are
not at impasse. Therefore, any attempt by the company to
unilaterally implement its last offer at this time would be
illegal, and we urge that it not be done. The better—and
only legal—course would be to schedule further negotia-
tions sessions. By copy of this letter, I urge Mr. Wotring to
call Mr. Krupa to arrange dates for such further meetings.
Respondent’s negotiator, Wotring, responded by fax on No-
vember 22 (GC Exh. 38). Among other things Wotring argued
that the Union had agreed to provide language regarding the
role on the senior port engineer in grievance proceedings and
specifically for contract sections 24.1 and 25.1, but had failed
to do so. Wotring argued that the Company’s position on lay-
offs had not changed since the outset of negotiations. Wotring
went on to state:
It has and continues to be the Company’s position that
the compensation and independence of our port engineers
requires that they be held to a higher standard than are our
other employees. Therefore, job performance and qualifi-
cations are at least as important as seniority. Again, there
can be no confusion over either the meaning or intent of
the Company’s proposal of the Union’s consistent and
adamant rejection of that proposal.
Finally, with regard to the wage issue, Mr. Hirn’s pro-
fessed confusion is at the same time both amusing and dis-
ingenuous. You know very well that you and Mr.
Clements objected most strongly to the Company’s pro-
posal to pay a $2000 bonus for the first year of the con-
tract with no increase to the basic wage. At our last session
on November 7, 2000, in response to your objection, I said
that the alternative for the first year would be the increase
that the Company received from the County—specifically
the 1.5% increase to the base wage. That is indeed set
forth in our final offer. While Mr. Hirn can be confused as
much as he likes, you know better.
In the final analysis, there has been little if any move-
ment from the Union on the core issues in these negotia-
tions. To claim that the parties are not at impasse on these
critical issues is merely posturing and legal maneuvering.
Most of the items listed in Mr. Hirn’s letter are either no
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1246
longer in dispute or are inconsequential. If the Union is
prepared to make meaningful counterproposals on the core
issues, please let me know no later than Sunday, Novem-
ber 26, 2000.
The Union’s November 24 reply (GC Exh. 39) included the
following:
The union will be prepared to make meaningful coun-
terproposals at our December 1, 2000 meeting.
We intend to approach this negotiation session with an
open mind and with hope that creative approaches will be
found to satisfy both parties’ needs on all these issues. We
are dismayed that you have characterized the company’s
latest proposals as its “final” offer when there are unex-
plored avenues that may result in an ultimate contract that
satisfies each parties needs and alleviates their fears and
concerns.
In summary, we will be prepared with our counterpro-
posals on December 1, 2000 and we hope the company
will be prepared to do the same.
November 28
Respondent’s negotiator, Wotring, responded to the Union’s
November 24 letter (GC Exh. 39) on November 28 (GC Exh.
40):
In anticipation of our scheduled negotiation session on
December 1, 2000 and as a follow-up to my letter of No-
vember 24, 2000, I am encouraged by your intention to be
prepared with counterproposals. Nevertheless, if we are to
have any hope of making progress, the Union must be pre-
pared to present those counterproposals in writing. As I
have stated in previous correspondence, we have been
promised written proposals on a number of items that have
never been provided to us. Therefore, so that we do not
continue to waste any more time and money, please let me
know before Friday whether the Union is prepared to pre-
sent written counterproposals on the following critical is-
sues:
1. Wage increases and fringe benefit contributions;
2. Layoff procedures;
3. Overtime calculations; and
4. The role of the Senior Port Engineer in the griev-
ance procedure.
November 30
Respondent wrote employee Jody Thomas (GC Exh. 13):
This is to inform you that the company is reducing its labor
force and restructuring its organization and composition of the
workforce. Therefore, you are being laid off effective Decem-
ber 13, 2000.
December 8
The parties met for negotiations. Respondent advised the Un-
ion that it intended to restructure its work force and it was be-
ing forced to layoff one employee due to declining business.
Respondent’s negotiator, Wotring, testified that Respondent
told the Union that “the combination of their, their economic
proposals which they had not moved off of since September and
the ongoing dispute over the qualification of the people the
Union wanted us to hire or that were already there, led GFC to
believe that it had to sort of restructure, reorder, whatever
words you want to use, Jerry (Gerald Charlton) used the word
restructure, how the services were delivered to Port Ever-
glades” (Tr. 627). Wotring went on to testify that there was a
problem from Respondent’s point of view, of the competence
of a number of the people (port engineers), the wage demands
the Union was making and the cargo was down at Port Ever-
glades, and that something had to give and there would be lay-
offs. The Union objected and asked to meet after it had time to
consider Respondent’s restructure plans. The Union’s president
told Respondent that job security and work jurisdiction were
most important and the Union could reach agreement on
money. The Union asked Respondent to reconsider its decision
to lay off Jody Thomas in view of the recent discharge of Mike
Galka. Respondent refused the Union’s request.
December 13
Jody Thomas’ layoff was effective on December 13. He
worked as a port engineer at Midport. Respondent hired Tho-
mas on September 8, 1999. He is a member of MEBA District
1 and has worked through the Union since 1985. His immediate
supervisor was the senior port engineer, Stanley Ciecierski. As
shown above, Thomas received a letter from Respondent’s
president, Gerald Charlton, dated November 30, 2000, advising
him that he would be laid off on December 13, 2000. Thomas
filed a grievance over his pending layoff. After receiving his
layoff notice, Thomas also filed two grievances regarding non-
unit employees performing bargaining unit work.
After receiving his notice of layoff, Thomas learned that an-
other port engineer, Mike Galka, had been terminated around
December 6 or 8. He went to Stanley Ciecierski and asked if he
was still going to be laid off since Respondent was then short
one port engineer. Ciecierski said that he had already spoken
with Gerry and that Thomas was still going to be laid off. Tho-
mas wrote in his grievance that Galka had been terminated.
Respondent told both the Union and Thomas that Thomas’
layoff would go ahead even though Galka had been terminated
for cause. At the time of Thomas’s layoff all the port engineers
were members of the Union.
December 15
The Union’s negotiator, Paul Krupa, testified that the parties
met to negotiate on December 15. Respondent’s negotiator,
Wotring, testified that the parties had a short negotiating meet-
ing on December 15. Krupa testified that Respondent men-
tioned the number of port engineers that would be left after they
restructured the work force and that Respondent would pick up
some technicians. The Union presented a written proposal in an
effort to preserve the jurisdiction of bargaining unit work (GC
Exh. 56):
The requirement for a crane engineer is to provide
technical expertise on the various systems associated with
crane maintenance and operation including but not limited
to electrical, electronic, mechanical, hydraulic and com-
puter systems. He shall continue to function as a working
GFC CRANE CONSULTANTS 1247
supervisor with respect to overseeing the proper operation
and maintenance of the cranes and associated equipment.
It shall be the duty of the PE to direct the execution of
duties of the CME and any and all other maintenance per-
sonnel. Accordingly, whenever there is work being per-
formed by any maintenance personnel, there shall be at
least one PE on duty. In addition, there shall be a PE on
duty during cargo operations.
The Union asked for another meeting. The Respondent’s ne-
gotiator, Wotring, walked out of the meeting. That was the last
time the parties met for negotiations.
Respondent, through its president, Charlton, responded to
Thomas’ grievance over his layoff (GC Exh. 72) on December
18:
This is in response to the grievance filed by you dated De-
cember 8, 2000, regarding your layoff. We have discussed
this matter with your Messrs. O’Toole, Krupa, and Clements
on two separate occasions. As we told them, the lack of cargo
at Port Everglades has made it clear that the company cannot
continue to employee [sic] the number of supervisory person-
nel that it has in the past. As you know, the Company has at-
tempted to convince your MEBA representatives that layoffs
should not be made solely on the basis of seniority, but our
proposal has been consistently rejected by the Union. There-
fore, as the most junior Port Engineer, you have been desig-
nated for layoff. While we sincerely regret having to take this
step, there is no violation of the collective bargaining agree-
ment. Your grievance is denied.
December 19
Respondent wrote the Union on December 19. The letter
(GC Exh. 44), included, among other things, the following:
I am out of patience. To be clear, your proposal of December
15 regarding work jurisdiction is rejected. The Company pro-
posals of November 14, 2000 covering wages, fringe benefits,
overtime calculation and layoff procedures are still on the ta-
ble. All other Union proposals on open items are rejected. The
Company requests that its final offer be presented promptly to
the bargaining unit members for a ratification vote. Recogniz-
ing that this is an internal Union matter, the Company never-
theless believes that its employees desire an end to this proc-
ess and should be given an opportunity to voice their opin-
ions. Should our final offer be rejected, the Company reserves
the right to implement the terms of its final offer.
The Union responded, also on December 19, to the effect
that it was not stalling the negotiations. (GC Exh. 45.)
On December 22, the Union requested arbitration (GC Exh.
41):
However, during the interim, company and union representa-
tives had discussions about these grievances and, unfortu-
nately, they were not resolved. On December 18, you issued a
written denial of these grievances. This process did not strictly
conform to the negotiated grievance procedure. Your answer
of December 18 appears to be the final company response to
the grievances, and therefore it appears appropriate for the un-
ion to demand arbitration at this juncture, and we hereby do
so. As in the past the union will be represented by Richard
Hirn for the purpose of selecting an arbitrator or arbitrators
and scheduling the hearings, in accordance with article 32.1 of
the agreement. In the event that you believe that the demand
for arbitration is premature, this letter is to be considered a
step 2 grievance filed on each of these issues. I am available
for further discussions you believe may be warranted on this
matter.
December 23
Respondent wrote the Union on December 23 (GC Exh. 46):
Putting your letter of December 19 in the most charita-
ble light possible, it is the most self-serving collection of
half-truths I have seen in many years. You know that I
asked if you had any further information other than the
Segal document and you said no. If you have additional in-
formation, please mail it to me.
I gather you are refusing to present our offer to the
members for a vote. So be it. After consulting with my cli-
ent, I will let you know whether and when we will imple-
ment the terms of our final offer.
December 28
The Union wrote Respondent on December 28 (GC Exh.
47):
I note that, in your faxed letter of December 23, you
reported, among other things, that your client may decide
to implement your last offer. However, there is a lot to talk
about.
Although you objected to the magnitude of the in-
crease in our medical contribution, you did not dispute the
fact that medical rates are increasing at very high rates. I
provided information to support that fact that was not gen-
erated in our offices. We want to provide whatever infor-
mation you need to justify or verify that our medical pro-
jections are real and accurate. As I said earlier, this is con-
fidential and proprietary information that should not be
circulated but can be shared with you.
The last time we met with Gerry he reported that he
was restructuring his company. I have made efforts to un-
derstand how this impacts our jobs yet it remains unclear
how our bargaining unit will be changed. The jurisdic-
tional issues are very important and should not be dis-
missed by vaguely referring to restructuring.
We are nowhere near impasse and I think we should be
meeting to work out our differences. I suggest the follow-
ing dates. Of course the location is open.
Friday January 12, 2001
Tuesday January 16, 2001
Friday January 19, 2001
I hope that we can utilize these dates to get together. I am in
my office Friday December 29. Please call or fax so that we
can meet.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1248
January 2001
Gerald Charlton testified that Respondent finalized plans for
restructuring in early 2001. Respondent’s plans anticipated
three or four crane maintenance technician (CMT) positions.
Charlton testified that he created the CMT positions because he
wanted personnel with more qualifications on the controls (Tr.
473).
January 2
Respondent wrote the Union on January 2 (GC Exh. 48):
This is in response to your letter of December 28, 2000. As I
said in an earlier letter, the Union has refused to make any
substantive proposals on the critical issues. Your latest letter
does nothing to change our view of your unwillingness or in-
ability to bargain in good faith. We believe that any further
meetings would simply be a waste of time and money. If the
Union has concrete proposals to make on the core issues,
please forward them to me in writing.
January 8
Respondent wrote the Union on January 8 (GC Exh. 49):
I received your telephone messages from Friday 1/5/01 and
this morning I returned the call lat [sic] approximately
1:30PM and left a message on your cell phone voice mail. If
you are calling about negotiations I repeat my early request
that if the Union has any proposals that they be put in writing.
If you are calling concerning pending grievances, please call
Sheldon Kline at Morgan Lewis.
January 16
Paul Krupa testified that he phoned Wotring around January
16 and, among other things, asked for another negotiating meet-
ing. Wotring reiterated that he wanted to see any union propos-
als in writing before he would agree to any meeting.
January 21
Respondent wrote the Union on January 21 (GC Exh. 50):
Please be advised that GFC will implement its final of-
fer effective 12:01 a.m., January 23, 2001. The terms of
the final offer are identical to those set out in my letter to
you dated November 12, 2000 with the exception of sec-
tion 31.2 which was agreed to in our session on December
1, 2000. In addition, as proposed in the December 1, 2000
meeting, the first year wage increase of 1.5% will be ret-
roactive to the expiration of the previous agreement (Au-
gust 14, 2000). I have attached a copy of my November
12, 2000 letter for your easy reference.
As to all other items as of January 22, 2001, the Com-
pany’s final proposal is that these items remain unchanged
from the prior collective bargaining agreement. All
changes agreed to by the parties in our previous negotia-
tions sessions will be honored by the Company.
January 23
Respondent admitted in its answer that it implemented its fi-
nal offer on January 23, which included a 1.5-percent increase
in base pay retroactive for 1 year for the port engineers and a 3-
percent increase in health benefits.
January 24
Respondent posted a notice to all GFC personnel from Gerry
Charlton—president, regarding “Crane Maintenance Techni-
cian Positions:”
Effective Tuesday, January 30, 2001, at 0800, those who wish
to interview to become a Crane Maintenance Technician
please sign up below for scheduled appointments with me or
see me personally.
Gerald Charlton testified that on January 24, he anticipated
the need for seven to nine CMTs.
January 29
Respondent wrote the Union (GC Exh. 51):
Please be advised that effective immediately GFC Crane Con-
sultants no longer recognizes District No. 1-PCD-MEBA as
the collective bargaining representative for the supervisors
employed by GFC at the Port Everglades facility in Broward
County, Florida. All contributions due and owing to the
MEBA benefit plans for hours worked to date will be made
by the Company. Any union dues deducted but not yet remit-
ted to the Union will be sent immediately.
Late January
Scott Zinsius testified that he interviewed for a CMT job
during the week before February 1. Zinsius asked Charlton
what the new job was about. Charlton described the CMT job
and it sounded to Zinsius like the job of port engineer. He asked
Charlton why he should take this new job when he already had
a job doing the same thing. Charlton replied:
I want to have these technicians able to go between Mid Port
and South Port to handle responsibilities, you know at both
ports, you know, if the crane has troubles, if we have troubles
with drives, technical troubles.
Charlton said the benefits would be basically comparable to
what Zinsius had at that time. Zinsius said the he had been do-
ing the job that Charlton described, for 5 or 6 years. Charlton
replied, “[W]ell, I don’t recognize the MEBA, at this point, and
I’m going to fill these jobs to take these, to take these spots.”
Zinsius asked if he still had a job and Charlton told him just to
come in day-to-day.
About the same time, Ed Conden told Timothy Herring that
Herring better talk with Charlton if he wanted to continue
working for GFC. Herring testified that Condon told him that
he should get a termination letter from Charlton. Herring did
meet with Charlton and Charlton offered him a consultant posi-
tion until another CMT position opened. Charlton told Herring
that the CMT job was the same as his port engineer job but
Herring would have to leave the Union and his medical and
retirement benefits would be through Respondent’s insurance.
Herring rejected the offer because he would lose too much in
the way of benefits, by leaving the Union.
GFC CRANE CONSULTANTS 1249
February 1
On February 1, Respondent wrote all its port engineers (GC
Exh. 14a–e):
Due to a reduction in cargo and issues related to GFC
Crane Consultants, Inc.’s (“GFC Crane”) organizational
structure, GFC Crane is reducing its labor force and re-
structuring the composition of its work force. Specifically,
GFC Crane is eliminating the supervisory positions of Port
Engineer, Supervisory Port Engineer and Senior Port En-
gineer. GFC Crane is hiring a limited number of Crane
Maintenance Technicians (“CMT”), who will perform
technical services with the crane Maintenance Electricians.
As you know, all of GFC Crane’s current employees have
been given the opportunity to apply for a CMT position.
GFC Crane appreciates that you interviewed for a
CMT position. However, GFC Crane regrets to inform you
that we do not have a position for you at this time. There-
fore, as your supervisory position is being eliminated, you
are being terminated effective February 1, 2001. A check
for all monies owed to you will be mailed to your home by
February 9, 2001.8 (GC Exh. 14a–14e).
Respondent gave no prior notice of the terminations.
Respondent’s invoices to Port Everglades show that at some
time during the pay period that ended on February 5, 2001, it
employed “supervisors/technicians” Aloisio, Crehan, Herring,
L. Holbert, Leahy, Picciolo, Simpson, Veiga, and Zinsius. L.
Holbert also worked as a “mechanic” during part of that pay
period. The invoice for the week that ended February 12, 2001,
shows that Respondent employed “supervisors/technicians”
Aloisio, L. Holbert, Picciolo, and Simpson. The invoice for the
week that ended February 19, 2001, shows that Respondent
employed “supervisors/technicians” Aloisio, L. Holbert, S.
Johnson, Picciolo, and Simpson. The invoice for the week that
ended February 26, 2001, shows that Respondent employed
“supervisors/technicians” Aloisio, L. Holbert, S. Johnson, Pic-
ciolo, Simpson, and P. Titus. There was an addition shown on
the invoice for the week that ended March 19, 2001. That in-
voice shows that Respondent employed “supervi-
sors/technicians” Aloisio, L. Holbert, S. Johnson, D. Konefal,
Picciolo, Simpson, and P. Titus. There was another addition
shown on the invoice for the week that ended April 2, 2001.
That invoice shows that Respondent employed “supervi-
sors/technicians” Aloisio, L. Holbert, S. Johnson, D. Konefal,
Picciolo, H. Rodriguez, Simpson, and P. Titus. There was an-
other addition shown on the invoice for the week that ended
July 2, 2001. That invoice shows that Respondent employed

8 This second paragraph was included in the letter written to Tim
Herring but omitted from letters written to Mike Crehan, Peter Leahy,
Scott Zinsius, and Rudy Veiga. In lieu of the paragraph in Herring’s
letter, the last paragraph in the letters to Crehan, Leahy, Zinsius, and
Veiga, read, “As your supervisory position is being eliminated under
GFC Crane’s new structure and you have opted not to apply for a CMT
position, you are being terminated effective February 1, 2001. A final
paycheck will be mailed to your home by February 9, 2001. You are
required to turn in your Port ID’s and parking pass.”
“supervisors/technicians” Aloisio, C. Armstrong, L. Holbert, S.
Johnson, D. Konefal, Picciolo, Simpson, and P. Titus.
The invoices show that Dan Picciolo worked for some time
for Respondent as a mechanic before first appearing as supervi-
sor/technician during the week that ended January 8, 2001.
Ernest Simpson first appeared on the invoice for the week that
ended on December 18, 2000. He was always listed as supervi-
sor/technician.
Gerald Charlton testified that Respondent had nine port en-
gineers including the senior and supervisory port engineers
immediately before February 1, and that Respondent now em-
ploys9 nine CMTs at Midport and Southport. The Midport
CMTs are Dan Picciolo and Dave Konefal. The Southport
CMTs are Stan Johnson, Dan Holbert, Earnest Simpson,
Charles Armstrong, Heriberto Rodriguez, and Paul Titus.10
Former CMEs Holbert, Konefal, and Rodriguez became CMTs
in February, March, and May 2001. Charles Armstrong quit his
job as a CME but was hired by Respondent as a CMT in June.
Supervisor Aloisio testified that CMTs perform the duties
formerly performed by CMEs including troubleshooting crane
controls, standing watch and fixing cranes but that some of the
CMTs have more technical skills than some of the port engi-
neers. However, Aloisio testified that the cranes on which those
CMTs are more skilled do not exist at Midport or Southport.
(Tr. 503, 504.)
Conclusions
An employer may commit an unfair labor practice under
Section 8(a)(5), when it refuses to bargain in good faith with its
employees’ exclusive collective-bargaining representative.
Here, there is no doubt as to the Union being the exclusive
collective-bargaining representative of nonsupervisory employ-
ees,—the port engineers. Before this controversy the parties
agreed to collective-bargaining contracts since 1993. When the
1995 contact expired in August and was extended a month until
September 2000, all the unit employees were members of the
Union. Respondent knew of its port engineers’ support for the
Union because, among other things, it routinely deducted union
dues from those employees’ pay and it routinely submitted
benefit payments to the Union (e.g., GC Exh. 51). The question
at issue involving the 8(a)(5) allegations is, did Respondent fail
to engage in good-faith bargaining. Also, at issue, are questions
regarding Section 8(a)(1) and (3).
In order to consider the outstanding bargaining question, I
must look at the totality of the circumstances. [Hotel Roanoke,
293 NLRB 182, 184–185 (1989).]
The record shows that correspondence and other records
whose authenticity is not in dispute establish much of the evi-
dence regarding bargaining between the parties. There was
some testimony in dispute and to the extent there are conflicts I
have determined that the testimony of Paul Krupa was the most
credible of all the witnesses. Krupa was a bargaining represen-
tative for the Union and he was present at all the meetings cov-
ered in his testimony. I make my credibility determination on

9 As of December 2001.
10 All the named eight CMTs plus Mark Aloisio are listed as “super-
visors/technicians” on Respondent’s invoices to Port Everglades.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1250
the basis of the demeanor of the witnesses including Krupa, and
the full record, which appears to support Krupa’s testimony.
Krupa’s testimony proved that Respondent’s president told
the Union before the 2000 negotiations started, during the fall
of 1999, that he did not need it (i.e., the Union) and was look-
ing at other unions. On May 16, 2000, the Union notified Re-
spondent that it desired to negotiate a modified contract. Re-
spondent replied on May 30 that it wanted to terminate the
collective-bargaining agreement. At the first formal negotiation
session on September 8, Respondent submitted a written pro-
posal. Among other things, Respondent proposed changing the
recognition clause from “these employees of” to “the supervi-
sory Port Engineers employed by;” changing the probationary
period from 90 to 120 days; changing the seniority clause from
“the Port Engineers with the least seniority” to “the Company
shall reduce the workforce based on qualifications, work per-
formance and seniority”; changing the work jurisdiction clause
to permit it to subcontract port engineers work when all port
engineers are working and to determine the number of unit
employees and assign unit work outside the bargaining unit
when business conditions require; changing the wages provi-
sion of the contract to eliminate the automatic step increases;
changing the work schedule clause to add “unless such sched-
ule is reduced due to reduced work loads, Port closings,
weather or other circumstances beyond the Company’s control”
and amending the hours provisions to permit overtime only for
hours actually worked in excess of 40 per week; changing the
grievance procedure clause to show that the response of the
senior port engineer must be approved by “Company Manage-
ment”; and changing the terms of the agreement to reflect a 5-
year contract.
The Union faxed a written contract proposal to Respondent
on September 27. (GC Exh. 34.)
At an October 6 negotiation session, Respondent proposed a
$2000 signing bonus and agreed to a 2-percent base wage in-
crease each year for the 5-year term of the contract. At an Oc-
tober 17 session, the Union proposed reducing its original base
wage rate proposal by $1000. The parties met on November 7,
and the outstanding issues following that meeting were wages,
senior port engineer’s grievance authority, overtime calcula-
tions, and seniority layoff provisions.11 On November 14, Re-
spondent wrote the Union and suggested the parties were at
impasse. Respondent also submitted what it termed its “best
and final offer,” and threatened to implement that offer on No-
vember 27, 2000. (GC Exh. 36.)
The Union wrote on November 21, that the parties were not
at impasse, pointed to issues including issues brought up first in
Respondent’s November 14 letter, which had not been dis-
cussed in negotiations and suggested that Respondent’s No-
vember 14 initial wage offer of 1.5 percent was less than its
original offer of 2 percent plus a $2000 signing bonus. (GC
Exh. 37.) On November 22. Respondent faxed a letter to the

11 See also GC Exh. 38, where Respondent acknowledged that the
main issues of disagreement at the beginning of the October 17 negotia-
tions were “economics, principally wages and fringe benefit contribu-
tions, overtime for hours not worked, the layoff provision, and the role
of the senior port engineer in the grievance procedure.
Union. Respondent wrote, among other things, that the Union
had objected to “the Company’s proposal to pay a $2000 bonus
for the first year of the contract with no increase to the basic
wage”12 (GC Exh. 38).
A question of Respondent’s good faith arose when it submit-
ted its “best and final offer” and suggested the parties were at
impasse. As shown above, before that time Respondent’s presi-
dent had suggested that he did not need the Union and then
Respondent submitted a written contract proposal. After that,
Respondent made an offer to pay a $2000 signing bonus to its
port engineers and it agreed to increase wages by 2 percent
each year during a 5-year contract.13 A little over a month after
making that $2000 signing bonus offer, Respondent suggested
the parties were at impasse. During the period between Re-
spondent’s September 8 written proposal and its suggestion of
impasse, the Union among other things, submitted a written
contract proposal on September 27 (GC Exh. 34) and an Octo-
ber 17 proposal that reduced its original wage increase proposal
by $1000.
Respondent agreed that the main issues remaining after ne-
gotiations on November 7, were wages, senior port engineer’s
grievance authority, overtime calculations, and layoff provi-
sions. In view of the above evidence I find that the parties were
making progress in negotiations and were not at impasse on
November 14, 2000. Taft Broadcasting Co., 163 NLRB 475,
478 (1967); Marriott Corp., Marriott In-Flite Services, 258
NLRB 755 (1981).
The Union argued the parties were not at impasse in a No-
vember 21 letter (GC Exh. 37), and it suggested issues includ-
ing issues raised by Respondent for the first time in its Novem-
ber 14 letter, which remained to be negotiated. On November
22, Respondent complained that the Union had failed to supply
it with language regarding the role of the senior port engineer in
grievance proceedings and regarding contract sections 24.1 and
25.1. Respondent also argued in its November 22 letter (GC
Exh. 38) that it had proposed a $2000 signing bonus with no
increase in the basic wage.
The record shows that Respondent’s November 22 assertions
were incorrect. As shown above I credited the testimony of
Paul Krupa. Krupa testified regarding the October 6 negotia-
tions and as to the notations under article 23 of General Coun-
sel’s Exhibit 35. Those notations and Krupa’s testimony shows
that Respondent proposed a $2000 bonus. Then, as shown by
notes on the next page of General Counsel’s Exhibit 35, the
parties agreed to a 2-percent base wage increase each year for
the 5 years of the proposed contract. I find that Respondent
proposed a $2000 bonus and the parties agreed to a 2-percent
per year basic wage increase for each year of the 5-year pro-
posed contract on October 6. On November 14, Respondent

12 Note Respondent’s initial contract proposal did not include the
$2000 bonus. However, as shown herein, the evidence showed that
Respondent made an October 6 proposal, which included a $2000 sign-
ing bonus. Krupa’s testimony and notes proved that the parties agreed
to a 2-percent base wage increase for each year of the 5-year term of
the contract.
13 As to my determination that Respondent agreed to a 2-percent per
year increase in base wages, I credit, as I did above, the testimony of
Paul Krupa with consideration given to GC Exh. 34.
GFC CRANE CONSULTANTS 1251
made a different proposal, which included a lower increase
during the first year and no signing bonus. It proposed increases
in basic wages of 1.5 percent, 3 percent, 3.5 percent, 3.5 per-
cent and 4 percent for each year. (GC Exh. 36.)
On November 24, in answer to a letter from Respondent, the
Union wrote that it was ready to negotiate with an open mind.
(GC Exh. 39.) On November 28, Respondent refused to meet
and negotiate unless the Union first submitted written counter-
proposals. (GC Exh. 40.)
On November 30, Respondent wrote employee and union
member Jody Thomas that it was reducing its labor force, re-
structuring its organization and composition of the work force
and laying off Thomas. (GC Exh. 13.) Thomas was to be laid
off on December 13. Respondent did not notify the Union that
it was reducing its labor force, restructuring its organization
and composition of the work force and laying off Jody Thomas
until the December 8 negotiation session. On December 8, Re-
spondent told the Union the reduction in work force, restructure
of its organization and composition of work force and layoff of
Jody Thomas were necessary because “the combination of their
(the Union), their economic proposals which they had not
moved off of since September and the ongoing dispute over the
qualification of the people the Union wanted us to hire or that
were already there,14 led GFC to believe that it had to sort of
restructure, reorder, whatever words you want to use, Jerry
(Gerald Charlton) used the word restructure, how the services
were delivered to Port Everglades.” (Tr. 627.)
As shown above, Respondent was incorrect in its assertion.
After the Union submitted a written contract proposal on Sep-
tember 27, the Union proposed on October 17, a reduction of its
original base wage increase proposal by $1000. On November
14, Respondent suggested the parties were at impasse and made
several inconsistent comments to the Union regarding its base
wage increase proposals. From October 17, when the Union
proposed reduction in its base wage increase proposal, until
Respondent’s November 30 letter to Jody Thomas, negotiations
were in a state of confusion brought on by Respondent’s pre-
mature suggestion of impasse.
Thereafter on November 30, in its letter to Jody Thomas (GC
Exh. 13), and again during negotiations on December 8, Re-
spondent announced its decision to reduce the size of its work
force, to restructure its organization and composition of work

14 There is no evidence showing the Union ever sought to negotiate
over the qualifications of new or current employees. Even Respondent
showed that was not an outstanding issue. Respondent’s bargaining
negotiator faxed a response to the Union’s November 21 letter in which
it stated “At the beginning of our session on October 17, 2000, we both
acknowledged that the main areas of disagreement were economics,
principally wages and fringe benefit contributions, overtime for hours
not worked, the layoff provisions, and the role of the senior engineer in
the grievance procedure.” That language illustrated that port engineers’
qualifications was not a main area of disagreement. Respondent’s
negotiator goes on in that same fax to state that the Company is con-
cerned “that the compensation and independence of our port engineers
requires that they be held to a higher standard than are our other em-
ployees.” (GC Exh. 38.) That language may arguable show that Re-
spondent was concerned with port engineers’ qualifications but there
was no showing that the Union ever sought lesser qualifications than
those already possessed by the port engineers.
force and layoff of Jody Thomas. Moreover, Respondent
blamed the Union for its unilateral actions by writing that it was
being pressured to take those actions because of the Union’s
demands. Respondent asserted that it questioned the compe-
tence of a number of its port engineers. It also contended that
the cargo was down at Port Everglades and that contributed to
its need to layoff some people. In reaction to those comments
the union president told Respondent that job security and work
jurisdiction were most important and that the Union could reach
agreement on money. [Cf. Grinnell Fire Protection System Co.,
328 NLRB 585 (1999).]
The Union questioned the need to layoff Jody Thomas. Nev-
ertheless, Respondent laid off Jody Thomas on December 13.
The record shows that Respondent notified Thomas of his up-
coming layoff on November 30, without notice or bargaining
with the Union.
In addition to its 8(a)(5) allegations, the General Counsel al-
leged that the Thomas layoff constituted an 8(a)(1) and (3)
violation. Section 8(a)(3) calls into question the Wright Line15
test.
I shall first consider whether the General Counsel proved
that Thomas’s layoff was motivated by Respondent’s antiunion
animus. In consideration of that issue, the record shows that
Respondent knew of Thomas’ union activity along with that of
all its port engineers and, as shown hereafter, Respondent dem-
onstrated its antiunion animus by threatening its employees
with discharge if they did not abandon the Union16 and by en-
gaging in bad faith bargaining before and after Thomas’s lay-
off. Moreover, the timing of Thomas’ layoff is suspect. He was
laid off at the very time Respondent decided to reorganize its
work force and eliminate some of its union employees. I find
that the General Counsel proved that Respondent laid off Jody
Thomas because of its union animus.
In further examination of this allegation, I shall consider
whether Respondent proved it would have laid off Thomas in
the absence of his union activities. Respondent contended in its
letter to Thomas and in its December 8 statements to the Union,
that Thomas was being laid off because it was reducing its
work force and restructuring its organization and composition
of the work force. As shown hereafter, that statement was not
true. In truth the record shows that Respondent decided to re-
structure its work force in order to eliminate the Union. It
sought to eliminate the Union by replacing union employees
with employees that it considered outside the bargaining unit.
Those employees were the CMTs (i.e., crane maintenance tech-
nicians). The contention that Thomas was laid off because of
reorganization was weakened by another event. After Thomas
was notified of his upcoming layoff, Respondent unexpectedly
discharged another port engineer—Michael Galka—for cause.
When the time arrived for Thomas to be laid off on December
13, Respondent found itself with one less port engineer than it

15 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
16 At question here is Respondent’s motivation or state of mind.
Even though Respondent threatened employees with discharge if they
did not abandon the Union until after Thomas was laid off, that fact
illustrates Respondent’s animus against the Union. See Earthgrains
Co., 334 NLRB 1131 (2001).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1252
had in the Port Everglades work force at the time it notified
Thomas he would be laid off. Nevertheless, Respondent per-
sisted and released Thomas on December 13.
As shown above, after Respondent wrote Thomas and ad-
vised him of his upcoming layoff on November 30, Respondent
said nothing to the Union until its December 8 negotiating ses-
sion. Then, among other reasons for the layoff, Respondent told
the Union that Thomas would be laid off due to declining busi-
ness.17 Subsequently, in denying Thomas’s grievance, Gerald
Charlton wrote, among other things, that he had told the Union
that Thomas was laid off due to declining work (GC Exh. 72).
However, the Respondent’s records call its contention of
layoff due to declining work into serious question. For exam-
ple, during the work period in which Respondent wrote Thomas
of his upcoming layoff, Respondent employed seven nonsuper-
visory port engineers in the classification “supervisors/
technicians.” During the work period in which Thomas was
actually laid off, Respondent hired an additional nonsupervi-
sory employee in the classification “supervisors/technicians.”
That employee was Ernest Simpson who was hired as a CMT.
It is inconsistent to argue on the one hand that Thomas was laid
off due to declining business while, at the same time, employ-
ing someone else to perform the same job.18 Moreover, as
shown above, port engineers worked as part of a two- or three-
man crew. If Thomas was laid off for declining work it makes
no sense that other members of his crew were not laid off at the
same time. In view of the entire record I am convinced that
Respondent’s asserted basis for the layoff of Jody Thomas was
a pretext. I find that Respondent failed to prove that it would
have laid off Jody Thomas in the absence of his union activity
and I find that Respondent laid off Thomas in violation of Sec-
tion 8(a)(1) and (3).
As to the allegation that Respondent violated Section 8(a)(5)
by its layoff of Jody Thomas, I shall reconsider Respondent’s
own explanation for its layoff of Thomas. In its November 30
letter to Thomas, Respondent stated he was being laid off be-
cause it was restructuring its organization and composition of
the work force. At that time Respondent had not notified the
Union that it was restructuring its organization and composition
of the work force. In fact Respondent did not make that an-
nouncement to the Union until December 8 at which time it had
already initiated the restructuring plan by its letter to Thomas.
An employer must notify and give its employees’ bargaining
representative an opportunity to bargain before unilaterally
changing terms or conditions of employment. Respondent en-
gaged in an 8(a)(5) violation when it notified Thomas of his
upcoming layoff without first giving the Union an opportunity
to bargain. Therefore, the layoff of Jody Thomas—being the
fruit of the poison tree—constituted a violation of Section
8(a)(1) and (5).

17 Respondent’s negotiator testified that Thomas was laid off for a
combination of the Union’s economic proposals, which he alleged the
Union had not moved from since September and an ongoing dispute
over the qualifications of the people the Union wanted Respondent to
hire.
18 As shown herein, I credit the testimony including that of Tim Her-
ring that illustrated the job of port engineer was the same as that of
classified CMT.
Paul Krupa testified that Respondent announced the number
of port engineers that would be left after the work force was
restructured, during December 15 negotiations. Respondent
announced that it would be hiring some technicians. The Union
presented a written proposal regarding jurisdiction of unit work.
(GC Exh. 56.) The Union asked for another negotiation session
but Respondent’s negotiator walked out of the meeting and the
parties have not met since December 15.
Respondent rejected the Union’s proposal of work jurisdic-
tion (see GC Exh. 56) and all “other union proposals” on De-
cember 19; and Respondent requested that the Union present
Respondent’s contract proposal for a ratification vote. (GC
Exh. 44.) On December 22, the Union requested arbitration or
in the alternative, if Respondent felt the request was premature,
to treat its letter as step 2 in the grievance procedure. (GC Exh.
41.) On December 23, Respondent wrote the Union that it
would notify it when Respondent decided to implement its final
offer. (GC Exh. 46.) On December 28, the Union requested
additional negotiations including especially discussions about
Respondent’s plan for restructuring. The Union contended the
parties were nowhere near impasse. (GC Exh. 47.)
Gerald Charlton testified that Respondent formalized plans
for restructuring in early January 2001, and anticipated employ-
ing three or four CMTs. Charlton testified that he created those
positions because he wanted personnel with more qualifications
than the port engineers.
On January 2, Respondent wrote the Union that further meet-
ings would be a waste of time. (GC Exh. 48.) Respondent left a
phone message on January 8, that the Union must put any con-
tract proposals in writing. (GC Exh. 49.) On or about January
16, the Union phoned and asked Respondent for a negotiation
meeting. Respondent told the Union that it must first put its
proposals in writing, before Respondent would agree to a meet-
ing.
Respondent wrote the Union on January 21 that it would im-
plement its final offer on January 23. Respondent wrote that its
final offer included a first-year wage increase of 1.5 percent
retroactive to the expiration of the previous contract and other
terms set out in Respondent’s November 1219 letter to the Un-
ion. As to all other items Respondent asserted that its final offer
was that those other items remain unchanged from the prior
collective-bargaining agreement.
On January 23, Respondent implemented changes in work-
ing conditions including a retroactive 1.5-percent increase in
base pay.
An employer may not lawfully make unilateral changes in
working conditions without first bargaining to impasse. To
qualify as impasse, there must be an actual impasse rather than
a simple assertion by one of the parties that there is impasse.
Here, the evidence proved the parties were not at impasse.
Among other things, the record shows that Respondent first
contended there was impasse at a time when the parties were
making progress in negotiations and, in fact after Respondent
suggested impasse, the Union proposed concessions to its ear-
lier proposals.

19 Perhaps Respondent was actually referring to its November 14 let-
ter to the Union. (GC Exh. 36.)
GFC CRANE CONSULTANTS 1253
Although employers are required to notify and offer to nego-
tiate before making unilateral changes in working conditions, it
is noteworthy, that Respondent first specified the terms of its
“final offer” in its January 21 letter (GC Exh. 50). In other
words, Respondent first set out its final offer in the letter advis-
ing the Union that it would implement its final offer in 2 days.
Respondent wrote, among other things:
As to all other items as of January 22, 2001, the Com-
pany’s final proposal is that these items remain unchanged
from the prior collective bargaining agreement. All
changes agreed to by the parties in our previous negotia-
tions sessions will be honored by the Company.
The Union did not have an opportunity to engage in mean-
ingful negotiations after Respondent first specified the terms of
its final offer on January 21, and implemented the changes on
January 23. Additionally, it is apparent from the broad terms
used in its January 21 letter that Respondent failed to articulate
its final offer with specificity sufficient to permit the Union or
the unit employees to understand precisely what the offer in-
volved. For example, Respondent stated as “to all other open
items.” However, as shown in the various letters and during this
hearing, the parties were not in agreement as to which were
“open items.” Moreover, Respondent failed to state with any
clarity, which changes had been “agreed to by the parties in our
previous negotiations sessions.” Respondent’s language is es-
pecially confusing in view of Respondent having rejected the
Union’s December 15 proposal and all other union proposals on
open issues on December 19. (GC Exh. 44.)
A party to collective bargaining may not establish impasse
by simply refusing to bargain and saying the parties are at im-
passe. Here, the record established that the Union remained
open to negotiation but Respondent refused to bargain from
December 15. The evidence showed the parties were not at
impasse at any time during negotiations. See U.S. Testing Co.,
324 NLRB 854 (1997); Beverly Farm Foundation, Inc. 323
NLRB 787 (1997); CJC Holdings, Inc., 320 NLRB 1041
(1996); Circuit Wise, Inc., 309 NLRB 905, 919 (1992).
As to impasse, Respondent argued in its brief that it became
clear during negotiations that the parties would never reach
agreement on several critical issues and the most critical of
those issues was wages. It argued that despite “repeated re-
quests by the Company, the Union stuck to its original wage
proposal, only slightly modified in mid-October, right to the
end.” Respondent went on to argue that the Union’s wage pro-
posal, “which by the Union’s own testimony involved 100 per-
cent of the Company’s income from the Port for the Port Engi-
neers’ time,20 was so unreasonable that there was little reason to

20 In accord with its agreement with Port Everglades, Respondent
submitted weekly invoices to the Port, showing as to each employee the
hours worked at regular time and as to overtime, the billing rates as to
regular time and as to overtime, and the individual total wages for that
week. (CP Exh. 1.) As an example of that invoice, for the week ended
September 30, 2000—the week in which the Union submitted its writ-
ten contract proposal—Respondent billed Port Everglades 40 regular
hours for Port Engineer Leahy at $80.59 an hour for total weekly wage
of $3,223.60. At that rate, if Leahy worked 52 weeks during the year,
the total amount billed to Port Everglades for his wages would total
negotiate about it, as it was impossible for the Company to
even consider such a proposal.”
Respondent’s written contract offer (GC Exh. 33), proposed
to amend the wages provision (art. 23) “to delete automatic step
increases and to change dates to new five year contract.” The
Union submitted a written contract offer on September 27 (GC
Exh. 34), and proposed the following minimum salary for port
engineers:
YEARS OF
SERVICE MONTHLY ANNUAL
Start 6,253.25 75,039
1st year 6,456.50 77,478
2d year 6,666.33 79,996
3d year 6,883.00 82,596
4th year 7,106.67 85,280
The Union’s proposal called for annual increases in the
above wages of 3 percent on July 11, 2001; and 3.5 percent, 3.5
percent, and 4 percent on July 11, 2002, 2003, and 2004.
On October 17, the Union proposed a reduction in its base
wage rate proposal of $1000. After October 17, the parties met
in negotiations on November 7, and Respondent wrote the Un-
ion on November 14. In that letter (GC Exh. 36), Respondent
suggested the parties were at impasse and proposed its “best
and final offer.” In that best and final offer, Respondent pro-
posed, among other things, deleting automatic step wage in-
creases and increasing the base wage rates by 1.5 percent, 3
percent, 3.5 percent, 3.5 percent, and 4 percent in years 1
through 5. The Union wrote on November 27, and suggested
that the parties were not at impasse. Moreover, the Union wrote
that it was confused as to whether the best and final proposal as
to wages, involved new or regressive elements. The Union
pointed out the specific reasons why it was confused by Re-
spondent’s wage proposal and asked for further bargaining
meetings. On November 22, Respondent faxed an explanation
to the Union that included, among other things:
Finally, with regard to the wage issue, Mr. Hirn’s professed
confusion is at the same time both amusing and disingenuous.
You know very well that you and Mr. Clements objected
most strongly to the Company’s proposal to pay a $2000 bo-
nus for the first year of the contract with no increase to the ba-
sic wage. At our last session on November 7, 2000, in re-
sponse to your objection, I said that the alternative for the first
year would be the increase that the Company received from
the County—specifically the 1.5 percent increase to the base
wage. That is indeed set forth in our final offer. While Mr.
Hirn can be confused as much as he likes, you know better.
The Union replied on November 24, that it was prepared to
make meaningful counterproposals at the December 1 negotia-
tions. On November 28, Respondent wrote that the Union must
first present its counterproposals in writing especially as to the
issues of wages, layoff procedures, overtime calculations and
the role of the senior port engineer in the grievance procedure.

$167,627. As shown above, the Union proposed annual wages ranging
from $75,039 to $85,280.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1254
On November 30, without first giving notice to the Union,
Respondent wrote bargaining unit employee Jody Thomas that
it was reducing its labor force and restructuring its organization
and composition of the work force and Thomas would be laid
off on December 13. Respondent told the Union of its plan to
restructure and to layoff Jody Thomas, during December 8
negotiations. The union president told Respondent during those
December 8 negotiations, that job security and work jurisdic-
tion were most important and the Union could reach agreement
on money. Thomas was laid off on December 13. On Decem-
ber 15, the parties met to negotiate. Respondent told the Union
of its intention regarding retention of some of the port engi-
neers after the restructuring. The Union presented a written
work jurisdiction proposal. (GC Exh. 56.) Respondent walked
out of the meeting and has not agreed to another negotiation
meeting.
In consideration of the above evidence and the complete re-
cord, I find that the Union did not cause impasse in negotiations
by insisting on an unreasonable wage increase and I reject Re-
spondent’s argument.
On January 24, Respondent posted a notice for interviews for
the CMT position. Charlton testified that at that time he antici-
pated he would need seven to nine CMTs. Respondent gave no
prior notice to the Union nor did it notify the Union of its deci-
sion to interview applicants for CMT positions. An employer
may not unilaterally change terms and conditions of employ-
ment even though its collective-bargaining agreement has ex-
pired, without bargaining to impasse. Litton Financial Printing
Division v. NLRB, 501 U.S. 190, 198 (1991); NLRB v. Katz,
369 U.S. 736 (1962); White Oak Coal Co., 295 NLRB 567
(1985); Columbia Portland Cement Co., 294 NLRB 410
(1989).
Respondent wrote the Union on January 29 that it no longer
recognized the Union as exclusive bargaining agent of unit
employees. (GC Exh. 51.) Respondent failed to show any justi-
fication for that action. An employer may not unilaterally with-
draw recognition from its employees’ collective-bargaining
representative. [McWhorter Trucking, 273 NLRB 369 (1984);
Flex Plastics, Inc., 262 NLRB 651, 657 (1982), enfd. 726 F.2d
272 (6th Cir. 1984); Pinebrook Care Center, Inc., 322 NLRB
740 (1996).]
Port engineers including Scott Zinsius and Tim Herring in-
terviewed for the CMT positions. Charlton told Zinsius that he
did not recognize the Union and he was going to fill the CMT
positions to take the available jobs. Ed Conden told Tim Her-
ring that Herring had better talk to Charlton if he wanted to
continue working for GFC. When Herring met with Charlton,
Charlton told him the CMT job was the same as Herring’s port
engineer job but Herring would have to leave the Union. I
credit the testimony of Herring, as shown above, and I credit
Scott Zinsius. Both Herring and Zinsius’s testimony appeared
to accord with other established evidence. I credit their testi-
mony in view of my observation of the demeanor of all wit-
nesses and especially that of Herring and Zinsius. Their testi-
mony proved that Respondent, through its agents Charlton and
Condon, told its employees they would have to abandon the
Union to continue working for Respondent; and that its em-
ployee would do the same job he had performed as port engi-
neer but he would have to leave the Union. Those comments
constitute threats and coercion in violation of Section 8(a)(1) of
the Act.
Respondent discharged all its port engineers on February 1
(GC Exh. 14a–14e), without prior notice to the Union.
As to the 8(a)(5) allegation regarding the discharges, the re-
cord shows that Respondent gave the Union no prior notice of
the discharges. As shown above Respondent engaged in 8(a)(5)
violations by unilaterally restructuring its bargaining unit work
force. Respondent failed to notify of that plan and it failed to
notify the Union whether that plan or any other plan, had any-
thing to do with the discharges of the port engineers. Further-
more, Respondent gave the Union no notice of the reason for
discharging the port engineers. I find Respondent acted in vio-
lation of Section 8(a)(1) and (5) by discharging the port engi-
neers without notifying the Union and giving the Union an
opportunity to bargain over the discharges and their causes.
The General Counsel alleged that Respondent’s action in as-
signing bargaining unit work to CMTs; implementing a retroac-
tive 1.5-percent pay increase; announcing the CMT positions;
changing the port engineer classification to CMT; discharging
port engineer employees Crehan, Herring, Leahy, Veiga, and
Zinsius; and assigning all bargaining unit work to CMTs, con-
stituted violations of Section 8(a)(1) and (3) of the Act. As
shown above, Respondent knew of all its port engineers’ union
activity; and Respondent demonstrated antiunion animus. The
timing of the alleged actions lends further support to the 8(a)(3)
allegations. Additionally, among other things, Respondent
threatened its employees that they would have to leave the Un-
ion to continue working for Respondent. I find that the General
Counsel proved that Respondent was motivated by its union
animus to take those allegedly unlawful actions. Respondent
failed to show that it would have taken those actions in the
absence of its port engineers’ union activities. As shown above,
Respondent’s asserted reasons for Thomas’ layoff were pretex-
tual. For example, although it alleged that Jody Thomas was
laid off due to a decline in work, it hired Ernest Simpson to
perform the same job at approximately the same time it re-
moved Thomas. Moreover, after it announced Thomas’ layoff,
it discharged another port engineer but Respondent nevertheless
refused to reconsider and negotiate with the Union regarding
Thomas’ layoff. Respondent contends that it discharged its port
engineers because it needed more technically efficient employ-
ees on the cranes. However, that assertion conflicts with other
statements by Respondent to such an extent that Respondent’s
asserted basis for its alleged unlawful action, is not believable.
As shown above, the evidence proved that Respondent did not
actually layoff Jody Thomas because business was slow. Re-
spondent added more confusion by alleging additional reasons
for its removal of Jody Thomas and all the port engineers. Ge-
rald Charlton testified that in December he anticipated a need
for two or three CMTs. On December 15, Respondent told the
Union of its plans to retain some port engineers after it’s re-
structuring. In early January, Charlton anticipated hiring three
or four CMTs because he wanted “personnel with more qualifi-
cations.” On January 24, when Respondent posted notice for
CMT positions, it anticipated it would need seven to nine
CMTs. In late January, Gerald Charlton told Tim Herring that
GFC CRANE CONSULTANTS 1255
the CMT position was the same as his port engineer job but that
Herring would have to leave the Union.21 However, Respon-
dent never showed why it needed employees with more qualifi-
cations. Indeed Respondent’s notice for CMTs and Charlton’s
comments, show that it felt the port engineers could perform
the CMT jobs.
Supervisory port engineer, Mark Aloisio, testified that some
of the CMTs were more qualified on some cranes. However,
none of those particular cranes were located at Port Everglades.
Additionally, Charlton told Tim Herring that if hired as a CMT,
Herring would be performing the same job as he performed as
port engineer. Moreover, Charlton never explained why his
need for CMTs continued to increase in number, from early
December until he discharged all the remaining port engineers.
In view of all the above, and the full record, it is clear that Re-
spondent’s asserted reasons for discharging the port engineers
and hiring CMTs was a pretext. Against that evidence and the
evidence that Respondent was motivated to discharge the port
engineers and replace them with CMTs, I find that Respondent
actually discharged the port engineers and hired the CMTs
because of the Union. Respondent failed to show that it would
have discharged the port engineers or hired the CMTs in the
absence of union activity. I find that the discharge of the port
engineers and the replacement of the port engineers with CMTs
constitutes action in violation of Section 8(a)(1) and (3).
CONCLUSIONS OF LAW
1. By unilaterally reducing the number of unit employees,
restructuring its organization and composition of the unit work
force; laying off a unit employee; refusing to meet and negoti-
ate with District No. 1-Pacific Coast District, Marine Engineers
Beneficial Association, AFL–CIO, its port engineer employees’
exclusive collective-bargaining representative, and refusing to
meet and negotiate with the Union unless the Union first sub-
mits contract counterproposals in writing; by refusing to arbi-
trate grievances after request by the Union in accord with the
grievance procedure as set forth in the parties’ 1995 collective-
bargaining agreement; by threatening to implement and unilat-
erally implementing different terms and conditions of employ-
ment for unit employees although the parties had not bargained
to impasse; by formulating and unilaterally implementing re-
structure plans for work formerly performed by bargaining unit
employees; by unilaterally posting a notice of openings for and
interviewing applicants including unit employees for job CMT
openings to perform bargaining unit work even though CMTs
were not bargaining unit employees; by unilaterally withdraw-
ing recognition from the Union as bargaining unit employees’
collective-bargaining representative on January 29, 2001; by
unilaterally filling CMT positions and requiring those employ-
ees to avoid supporting the Union; by unilaterally discharging
port engineers Crehan, Herring, Leahy, Veiga, and Zinsius on
February 1, 2001, GFC Crane Consultants, Inc. has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.

21 As shown above, I was impressed with Herring’s testimony. In
view of the full record including my observation of the demeanor of the
witnesses, I credit Herring’s testimony.
2. By laying off its employee Jody Thomas; and discharging
its employees Crehan, Herring, Leahy, Veiga, and Zinsius and
hiring others including crane maintenance technicians or others
to perform their work; GFC Crane Consultants, Inc. has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of
the Act.
3. By threatening its employees that it no longer recognized
the Union and was going to fill bargaining unit jobs with non-
bargaining unit employees; telling its employees that he had
better talk to its president if he wanted to keep his job while the
employer and the Union were engaged in collective bargaining;
and by telling its employee that he could continue to perform
his same job but he would have to leave the Union; GFC Crane
Consultants, Inc. has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily laid off employee
Jody Thomas and discriminatorily discharged employees Cre-
han, Herring, Leahy, Veiga, and Zinsius and hired others to
replace them, it must offer Thomas, Crehan, Herring, Leahy,
Veiga, and Zinsius full and immediate reinstatement, discharg-
ing others if necessary, and make Thomas, Crehan, Herring,
Leahy, Veiga, and Zinsius whole for all loss of earnings and
other benefits, computed on a quarterly basis from date of dis-
charge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended22
ORDER23
The Respondent, GFC Consultants, Inc., Fort Lauderdale,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally reducing the number of unit employees with-
out notifying and bargaining with District No. 1-Pacific Coast
District, Marine Engineers Beneficial Association, AFL–CIO
(Union).

22 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1256
(b) Unilaterally restructuring its organization and composi-
tion of the unit work force without notifying and negotiating
with the Union.
(c) Unilaterally laying off a unit employee work force with-
out notifying and negotiating with the Union.
(d) Unilaterally refusing to meet and negotiate with District
No. 1-Pacific Coast District, Marine Engineers Beneficial As-
sociation, AFL–CIO, its port engineer employees’ exclusive
collective-bargaining representative, unless the Union first
submits contract counterproposals in writing.
(e) Refusing to arbitrate grievances after request by the Un-
ion in accord with the grievance procedure as set forth in the
parties’ 1995 collective-bargaining agreement.
(f) Threatening to implement and unilaterally implementing
different terms and conditions of employment for unit employ-
ees although the parties had not bargained to impasse.
(g) Formulating and unilaterally implementing restructure
plans for work performed by bargaining unit employee’s work
force without notifying and negotiating with the Union.
(h) Unilaterally posting a notice of openings for and inter-
viewing applicants including unit employees for job openings
as CMTs to perform bargaining unit work even though CMTs
were not bargaining unit employee’s work force without notify-
ing and negotiating with the Union.
(i) Unilaterally withdrawing recognition from the Union as
bargaining unit employees’ collective-bargaining representative
on January 29, 2001.
(j) Unilaterally filling CMT positions and requiring those
employees to avoid supporting the Union.
(k) Unilaterally discharging port engineers Crehan, Herring,
Leahy, Veiga, and Zinsius on February 1, 2001 work force
without notifying and negotiating with the Union.
(l) Laying off its employee Jody Thomas because of his un-
ion activities and without notifying and bargaining with the
Union.
(m) Discharging its employees Crehan, Herring, Leahy,
Veiga, and Zinsius and hiring others including crane mainte-
nance technicians or others to perform their work, because of
its employees’ union activities and without notifying and bar-
gaining with the Union.
(n) Threatening its employees that it no longer recognized
the Union and was going to fill bargaining unit jobs with non-
bargaining unit employees.
(o) Telling its employees that he had better talk to its presi-
dent if he wanted to keep his job while the employer and the
Union were engaged in collective bargaining.
(p) Telling its employee that he could continue to perform
his same job but he would have to leave the Union.
(q) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request and within 14 days thereafter, recognize and
bargain with the Union as the exclusive representative of the
port engineer employees at Port Everglades excluding all su-
pervisors, concerning terms and conditions of employment and,
if an understanding is reached, embody the understanding in a
signed agreement.
(b) On request and within 14 days thereafter, reinstate all laid
off and terminated port engineers and, if necessary, discharge
employees hired to replace those port engineers.
(c) Within 14 days of this Order, offer full and immediate re-
instatement to employees Thomas, Crehan, Herring, Leahy,
Veiga, and Zinsius to their former jobs, or if those jobs no
longer exist, to substantially equivalent positions without loss
of seniority or benefits.
(d) Within 14 days of this Order, make whole Thomas, Cre-
han, Herring, Leahy, Veiga, and Zinsius for all loss earnings
and benefits.
(e) Within 14 days of this Order, remove from its files any
reference to the unlawful layoff of Thomas and the unlawful
discharges of Crehan, Herring, Leahy, Veiga, and Zinsius and
within 3 days thereafter notify Thomas, Crehan, Herring,
Leahy, Veiga, and Zinsius in writing that it has done so and that
it will not use the layoff or discharges against them in any way.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Within 14 days after service by the Region, post at it’s
Port Everglades Midport and Southport locations copies of the
attached notice marked “Appendix.”24 Copies of the notice, on
forms provided by the Regional Director for Region 12, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since November 30,
2000.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

24 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
GFC CRANE CONSULTANTS 1257
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT threaten our employees that we no longer rec-
ognize the District No. 1-Pacific Coast District, Marine Engi-
neers Beneficial Association, AFL–CIO, as the bargaining rep-
resentative for all our port engineers excluding supervisors, at
our Midport and Southport locations at Port Everglades and that
we are going to fill bargaining unit jobs with nonbargaining
unit employees.
WE WILL NOT tell our employee that he had better talk to the
company president if he wanted to continue working with us
while we are engaged in collective bargaining with the Union.
WE WILL NOT tell our employee that he could continue and
perform his same job but he would have to leave the Union.
WE WILL NOT layoff and refuse to recall our employees be-
cause of their union activity.
WE WILL NOT layoff and refuse to recall our employees with-
out first notifying and offering to bargain with the Union.
WE WILL NOT discharge and refuse to recall, our employees
because of their union activities.
WE WILL NOT discharge and refuse to recall, our employees
without first notifying and offering to bargain with the Union.
WE WILL NOT lay off Jody Thomas or discharge Michael
Crehan, Timothy Herring, Peter Leahy, Rudolph Veiga, or
Scott Zinsius because of their union activity and WE WILL offer
Thomas, Crehan, Herring, Leahy, Veiga, and Zinsius full and
immediate reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions without loss
of pay, seniority, or benefits, discharging, if necessary, other
employees hired to replace Thomas, Crehan, Herring, Leahy,
Veiga, and Zinsius.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful layoff of Jody
Thomas and unlawful discharge of Michael Crehan, Timothy
Herring, Peter Leahy, Rudolph Veiga, and Scott Zinsius, and
WE WILL, within 3 days thereafter, notify each of them in writ-
ing that this has been done and that the layoff and discharges
will not be used against them in any way.
WE WILL NOT unilaterally reduce the number of employees in
the bargaining unit of port engineers at our Midport and South-
port locations at Port Everglades, without first notifying and
offering to bargain with the Union.
WE WILL NOT unilaterally restructure our organization and
composition of the bargaining unit work force at our Midport
and Southport locations at Port Everglades, without first notify-
ing and offering to bargain with the Union.
WE WILL NOT refuse to meet and negotiate with the Union as
our Midport and Southport port engineers at Port Everglades.
WE WILL NOT refuse to meet and negotiate with the Union as
our Midport and Southport port engineers at Port Everglades
unless the Union first makes collective-bargaining counterpro-
posals in writing.
WE WILL NOT refuse to arbitrate grievances in accord with
the procedure set out in our 1995 collective-bargaining agree-
ment with the Union.
WE WILL NOT threaten to implement or unilaterally imple-
ment different terms and conditions of employment without
first giving notice and an opportunity to bargain, to the Union,
and bargaining in good faith until impasse is reached or until
the parties agree to a collective-bargaining contract.
WE WILL NOT formulate and unilaterally implement restruc-
ture plans and composition of unit employees, without first
notifying and offering to bargain in good faith until impasse is
reached or until the parties agree to a collective-bargaining
contract.
WE WILL NOT unilaterally post notice of openings for and in-
terviewing applicants for CMT job openings at our Midport and
Southport locations at Port Everglades without first notifying
and offering to bargain in good faith, with the Union.
WE WILL NOT withdraw recognition of District No. 1-Pacific
Coast District, Marine Engineers Beneficial Association, AFL–
CIO.
WE WILL NOT unilaterally fill CMT positions at our Midport
and Southport locations at Port Everglades, without giving
notice and bargaining in good faith with the Union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in writ-
ing and sign any agreement reached on terms and conditions of
employment for our employees in the bargaining unit of port
engineers at our Midport and Southport locations at Port Ever-
glades in Ft. Lauderdale, Florida.
GFC CRANE CONSULTANTS, INC.
Susy Kucera, Esq., for the General Counsel.
Sheldon M. Kline, Thomas K. Wotring, and Justin Sher, Esqs.,
for the Respondent.
Richard J. Hirn, Esq., for the Charging Party.
SUPPLEMENTAL DECISION
GEORGE CARSON II, Administrative Law Judge. This case
was heard by Administrative Law Judge Pargen Robertson on
December 10 through 14, 2001, and he issued his Decision on
April 4, 2002. On September 30, 2006, the Board, citing its
decisions in Oakwood Healthcare, Inc., 348 NLRB 686 (2006),
Croft Metals, Inc., 348 NLRB 717 (2006), and Golden Crest
Healthcare Center, 348 NLRB 727 (2006), remanded this case,
in which the supervisory status of port engineers was an issue,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1258
“for further consideration in light of . . . [those decisions] in-
cluding allowing the parties to file briefs on the issue and, if
warranted, reopening the record to obtain evidence relevant to
deciding the case under . . . [those decisions].” GFC Crane
Consultants, Inc., 348 NLRB 871 (2006). The Board directed
that this case be assigned to another administrative law judge if
Judge Robertson, who has retired from the Agency, was not
available. It having been determined that Judge Robertson was
not available, Associate Chief Administrative Law Judge Wil-
liam N. Cates assigned the case to me by Order dated Novem-
ber 22, 2006.
In a conference call with all parties on December 4, 2006,
counsel for the General Counsel and counsel for the Charging
Party stated their position that the record need not be reopened.
Counsel for the Respondent stated his desire to present unspeci-
fied supplemental evidence. On December 22, 2006, I issued an
Order setting the date for receipt of briefs for January 26, 2007,
and inviting any party who desired to reopen the record to file a
motion describing with particularity the evidence to be adduced
and specifying in what respect the record was deficient. By
letter dated January 3, 2007, counsel for the Respondent ad-
vised that he would not file a motion to reopen the record. I
have reviewed the record made before Judge Robertson. Re-
opening the record has not been requested and is not warranted.
On the entire record, the above cited Board decisions, and af-
ter considering the briefs filed by all parties, I reaffirm the deci-
sion made by Judge Robertson.
I. THE BOARD DECISIONS
In Croft Metals, Inc., supra, the Board stated that, in Oak-
wood Healthcare, Inc., supra, it had “refined the analysis to be
applied in assessing supervisor status” and, with citation to the
applicable portions of the Oakwood Healthcare, Inc., decision,
summarized the definitions for the terms “assign,” “responsibly
to direct,” and “independent judgment” as follows:
The authority to “assign” refers to “the act of designat-
ing an employee to a place (such as a location, department,
or wing), appointing an employee to a time (such as a shift
or overtime period), or giving significant over-all duties,
i.e., tasks, to an employee. . . . In sum, to ‘assign’ for pur-
poses of Section 2(11) refers to the . . . designation of sig-
nificant overall duties to an employee, not to the . . . ad
hoc instruction that the employee perform a discrete task.”
Id., slip op. at 4.
The authority “responsibly to direct” is “not limited to
department heads,” but instead arises “[i]f a person on the
shop floor has ‘men under him,’ and if that person decides
‘what job shall be undertaken next or who shall do it,’ . . .
provided that the direction is both ‘responsible’ . . . and
carried out with independent judgment.” Id., slip op. at 6.
“[F]or direction to be ‘responsible,’ the person performing
the oversight must be accountable for the performance of
the task by the other, such that some adverse consequence
may befall the one providing the oversight if the tasks per-
formed are not performed properly.” Id., slip op. at 7.
“Thus, to establish accountability for purposes of respon-
sible direction, it must be shown that the employer dele-
gated to the putative supervisor the authority to direct the
work and the authority to take corrective action, if neces-
sary. It also must be shown that there is a prospect of ad-
verse consequences for the putative supervisor if he/she
does not take these steps.” Id., slip op. at 7.
“[T]o exercise ‘independent judgment,’ an individual
must at minimum act, or effectively recommend action,
free of the control of others and form an opinion or evalua-
tion by discerning and comparing data.” Id. at 8. “[A]
judgment is not independent if it is dictated or controlled
by detailed instructions, whether set forth in company
policies or rules, the verbal instructions of a higher author-
ity, or in the provisions of a collective-bargaining agree-
ment.” Id. slip op. at 8. “On the other hand, the mere exis-
tence of company policies does not eliminate independent
judgment from decision-making if the policies allow for
discretionary choices.” Id., slip op. at 8 (citations omitted).
Explaining the definition of independent judgment in rela-
tion to the authority to assign, the Board stated that “[t]he
authority to effect an assignment . . . must be independent
[free of the control of others], it must involve a judgment
[forming an opinion or evaluation by discerning and com-
paring data], and the judgment must involve a degree of
discretion that rises above the ‘routine or clerical.’” Id.,
slip op. at 8 (citations omitted).
II. FACTS AND ANALYSIS
The Respondent, pursuant to a contract with Broward
County, Florida, provides maintenance services upon cranes
used to unload containerized cargo from ships at Port Ever-
glades. The initial decision herein discusses the testimony given
at the hearing and need not be repeated. As set out in the initial
decision, it is uncontested that Respondent’s president, Gerald
Charlton, the senior port engineer, and the supervisory port
engineer are statutory supervisors. The port engineers were
assigned to shifts, called watches, with one or two crane main-
tenance electricians, referred to as CMEs. The teams of a port
engineer and CMEs were assigned specific cranes for which
they had two missions, “scheduled maintenance and cargo
watch.” GFC Crane Consultants, Inc., supra at 872.
Judge Robertson found, contrary to the Respondent’s argu-
ments, that port engineers “did not have authority to promote,
evaluate, or discipline . . . or to effectively recommend such
action” or that they “responsibly directed” employees. The
decision concludes that port engineers did not have “authority,
in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward or discipline
other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action.” Id.
at 874. Consistent with the Board’s remand, I address only the
issues of assignment, responsible direction, and independent
judgment as refined by the Board in Oakwood Healthcare, Inc.
The relevant time for the inquiry relating to the supervisory
status of port engineers is the year 2000. The Respondent’s
operations evolved during the period between 1995 and 2000,
and documents were issued throughout that time period that
prescribed the procedures that port engineers were to follow.
Prior to 1997, there had been no preoperational checklist re-
garding the status of cranes being made ready for service. On
GFC CRANE CONSULTANTS 1259
January 28, 1997, Dale Hoover, who was senior port engineer
at that time, issued a preoperational checklist. In early 1998,
port engineer Tim Herring had understood that he had the dis-
cretion to call other personnel to assist with a problem, and did
so. On February 10, 1998, senior port engineer Hoover issued a
warning to Herring in which he informed him that he did “not
now, or have ever have had, authority to call out other person-
nel to assist you. That authority is mine and Charlton’s alone. It
has been standing policy to call myself when additional person-
nel are required and when there is an operational decision that
needs to be made.” Mark Aloisio became supervisory port en-
gineer in September of 1999. Following his appointment, the
Respondent reduced manning on nights and weekends when no
cargo was being unloaded and the cranes were not in operation
and instituted a “block maintenance program” prescribing the
frequency with which specific maintenance items were to be
performed.
During a cargo watch, the assigned team would, using the
preoperational checklist, ensure that the crane was operating
properly and then stand by to make necessary repairs if the
crane broke down. Written instructions directed the port engi-
neer to contact the senior port engineer or supervisory port
engineer if a crane was out of operation for more than 30 min-
utes. Port engineer Rudy Veiga testified that “eventually, it
became 15 minutes,” and supervisory port engineer, Aloisio,
confirmed that “towards the end,” i.e., prior to the discharge of
the port engineers, “it was the 15-minute mark.” As already
noted, on February 10, 1998, port engineer Herring was warned
and informed by the senior port engineer that it was “standing
policy to call myself . . . when there is an operational decision
that needs to be made.” Even though acknowledged supervisors
were not present on site at night or on weekends, “management
. . . [was] available after hours,” and port engineers contacted
them in compliance with the Respondent’s policies. See Golden
Crest Healthcare Center, supra at fn. 10.
Maintenance work consisted of scheduled maintenance and
repairs, including tasks such as greasing cable wires, changing
oil, “anything that needed to be done” to keep the cranes in
good working order. Scheduled maintenance was performed
monthly or less often depending upon the maintenance item as
set out in the “block maintenance program.” Regular inspec-
tions of the cranes disclosed items that needed attention and
were noted on a list given to the senior port engineer or super-
visory port engineer who approved what work was to be per-
formed. A list of tasks to be performed was approved by the
senior port engineer or supervisory port engineer each week
and given to the port engineers. Initially the lists were hand-
written as reflected by various exhibits. After institution of the
“block maintenance program,” the tasks were posted on a board
and checked off as they were completed.
Port engineers, as found in the initial decision, did the same
work as the CMEs. To quote port engineer Tim Herring, who
estimated that he spent from 10 to 15 percent of his time filling
out paperwork, “[I]t was all routine work.” “I got out there and
worked with the electricians [CMEs], whatever the job hap-
pened to be.” Port engineer Rudy Veiga, who physically
worked from 65 to 70 percent of the time, explained that the
work performed by the team was not “divided between us [the
port engineers] and the CMEs. We would do it together.” He
pointed out that it was “routine, . . . these are all repetitive type
jobs.” When, upon seeing on the list that wire ropes needed to
be greased, Viega would go to the breakroom and say, “[C]ome
on guys, we’ve got to grease the wire ropes.” Lead CME Paul
Titus, a witness for the Respondent, admitted that Veiga spent
at least 50 percent of his time physically working. Port engineer
Vincent Dobbin confirmed that “[w]e would do routine tasks all
the time.”
Although the port engineer would prioritize the tasks to be
performed, lead CME Titus confirmed that the CMEs would
make suggestions “constantly.” This collegial working relation-
ship among team members was confirmed by President Charl-
ton who acknowledged that the port engineers and CMEs
would “work together as a team.” Port engineer Scott Zinsius
noted that, if a job were going too slowly, he might “join in on
the job,” but that it could “go the other way,” giving the exam-
ple of a CME taking over an oil change on a diesel engine from
him. CME Andrew Balash, after finishing a specified task,
would “just go continue” performing the “other things on the
list.” The decision regarding the priority of tasks to be per-
formed could also be a function of time. As port engineer Jody
Thomas pointed out, the team “would not start an 8 hour job if
there were only 2 hours left on the shift.”
With regard to authority to assign, there is no evidence that
the port engineers designated CMEs to a place other than their
assigned crane, their assigned shift, or the duties associated
with their position as CMEs. Any shift change had to be ap-
proved by the senior port engineer or supervisory port engineer,
as did all overtime except when a cargo watch continued be-
yond the end of a normal shift, in which case standing instruc-
tions required the employees to remain until the ship was
unloaded and the cranes ceased operating.
With regard to the authority responsibly to direct, the Board
requires both direction and accountability. With regard to direc-
tion, “it must be shown that the employer delegated to the puta-
tive supervisor the authority to direct the work and the authority
to take corrective action, if necessary.” Direction is established
by showing that the putative supervisor determines “what job
shall be undertaken next or who shall do it.” The authority to
take corrective action obviously falls below the threshold of
formal discipline, since the authority to discipline, assuming
independent judgment in that regard, would, standing alone,
establish supervisory authority. Thus, from the list that he re-
ceived from his superiors, a port engineer’s deciding the order
in which he and the CMEs working with him were going to
undertake the tasks, explaining the correct manner in which to
perform a task, and giving verbal reminders regarding safety
rules or established procedures would fulfill the first require-
ment of responsible direction. The foregoing interpretation is
consistent with the holding in Croft Metals, Inc., supra at 722,
in which the Board found that moving employees to different
tasks, correcting improper performance, and making decisions
about the order in which work was to be performed, constituted
“direction.”
The second requirement, and an essential requirement of re-
sponsible direction, is accountability. In Golden Crest Health-
care Center, supra at fn. 11, the Board pointed out that a find-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1260
ing of responsible direction requires both evidence of direction
and accountability, “when there is no showing of ‘direction,’
the Board need not reach the issue of ‘accountability,’ just as
when there is no showing of ‘accountably,’ the Board need not
reach the issue of ‘direction.’”
There is no evidence that port engineers were held account-
able for their actions in directing CMEs. Although port engi-
neers were disciplined for their conduct, as in Golden Crest
Healthcare Center, there is no evidence that any port engineer
“has experienced any material consequences to . . . [his] terms
and conditions of employment, either positive or negative, as a
result of . . . [his] performance in directing . . . [CMEs].” Id. at
731.
The Respondent, in its brief, citing three instances of disci-
pline to port engineers, argues that they were held responsible
for the work of the CMEs. The documentary evidence does not
support the argument. The port engineers were cited for their
own derelictions. Port engineer Mike Galka was discharged
following a crane collision. Contrary to the assertion that
“management held the Port Engineer accountable for the
CME’s deficient work,” the Respondent’s written response
dated January 19, 2001, to a grievance filed by the Union refers
to Galka’s placing “the blame on one of the electricians is not
only disingenuous but also cowardly. In the end, there is no
escaping the fact that he deliberately bypassed the collision
avoidance system which was the direct and proximate cause of
the accident.” Port engineer Peter Leahy was cited on August
29, 2000, when it was discovered that a gantry drive motor had
been improperly wired. A memo from the senior port engineer
notes that he should have made sure the job was done right but
did not do so because he “did not gantry full stick.” A letter to
Leahy from President Charlton dated August 30, 2000, regard-
ing this incident states that he did not “fully test the gantry
motor.” Although claiming that the Respondent held port engi-
neer Scott Zinsius responsible when a crane collided with a
tanker truck, “even though he was not operating the crane,” the
letter to Zinsius dated December 29, 1998, points out that he
was the responsible engineer on watch and that it was his “re-
sponsibility to notify the [Broward County] Port Engineer . . .
[and] Senior Port Engineer” as stated in a memorandum and
that he, Zinsius, should make “no mistake . . . regarding notifi-
cation to authorities reporting damage.”
With regard to independent judgment, even if a putative su-
pervisor is found “responsibly to direct” because he or she both
directs and is held accountable, there is no finding of supervi-
sory status if that responsible direction is not exercised with
independent judgment. Independent judgment is action that is
“free of the control of others.” Thus, for responsible direction
to be independent, it cannot be “dictated or controlled by de-
tailed instructions, whether set forth in company policies or
rules, the verbal instructions of a higher authority, or in the
provisions of a collective-bargaining agreement.” Oakwood
Healthcare, Inc., supra at 693. In Croft Metals, although find-
ing that the lead persons therein both directed employees and
were “held accountable for the job performance of the employ-
ees assigned to them,” the Board determined that the lead per-
sons were not supervisors because the employees “generally
perform the same job or repetitive tasks on a regular basis and,
once trained in their positions, require minimal guidance.” Di-
rections were “routine.” Id. at 722.
The port engineers in this case did not exercise independent
judgment. Even if the discipline noted above were to be con-
strued as somehow holding port engineers responsible for ac-
tions of the CMEs, those documents refute any claim of inde-
pendent judgment since they show that the port engineers did
not follow proper procedures. The lists that determined the
maintenance work that teams performed were approved by the
senior port engineer or supervisory port engineer. The employ-
ees worked together as a team, and the work they performed
was routine and repetitive. On cargo watches, a preoperational
checklist determined whether a crane was ready for use. If a
crane broke down, the team of a port engineer and CMEs
would immediately try to get the crane operational, but the port
engineer was required to contact the senior port engineer or
supervisory port engineer when down time exceeded 30, later
reduced to 15, minutes. Rather than exercising independent
judgment, port engineers were to contact their superiors “when
there is an operational decision that needs to be made.”
The Respondent argues that port engineers “decided, free
from the control of management, whether . . . [a] malfunction-
ing crane should be fixed or replaced.” The foregoing is incon-
sistent with both the required notification to the senior port
engineer or supervisory port engineer when down time oc-
curred as well as the standing policy to call “when there is an
operational decision that needs to be made.” It is also contrary
to the finding in the initial decision that the “port engineer sim-
ply notified Port Everglades and the supervisory port engineer
of the problem.” GFC Crane Consultants, Inc., supra at 877.
Furthermore, as pointed out in the brief of the Charging Party,
citing Chevron U.S.A., 309 NLRB 59, 68 (1992), “[i]t is the
authority over employees, not the control of equipment, that is
relevant” in determining supervisory status.
In Oakwood Healthcare, Inc., supra, the Board noted that
“for an individual ‘responsibly to direct’ . . . with ‘independent
judgment,’ that individual would need to exercise ‘significant
discretion and judgment in directing’ others.” Id. at fn. 38. The
foregoing is consistent with the Board’s holding that “[p]roof of
independent judgment . . . entails the submission of concrete
evidence showing how assignment decisions are made. The
assignment of tasks in accordance with an Employer’s set prac-
tice, pattern or parameters, or based on such obvious factors as
whether an employee’s workload is light, does not require a
sufficient exercise of independent judgment to satisfy the statu-
tory definition.” Franklin Home Health Agency, 337 NLRB
826, 830 (2002), citing Express Messenger Systems, 301 NLRB
651, 654 (1991), and Bay Area-Los Angeles Express, 275
NLRB 1063, 1075 (1985). In this case, as in Croft Metals Inc.,
supra at 722, any directions given by port engineers would not
rise above the routine or clerical that the Act specifically states
do not confer supervisory status. As recognized by the Supreme
Court, in NLRB v. Kentucky River Community Care, Inc., 532
U.S. 706, 713 (2000). “[m]any nominally supervisory functions
may be performed without the ‘exercis[e of] such a degree of
. . . judgment or discretion . . . as would warrant a finding’ of
supervisory status under the Act. Weyerhaeuser Timber Co., 85
NLRB 1170, 1173 (1949).”
GFC CRANE CONSULTANTS 1261
The burden of establishing supervisory status is upon the
party asserting that status. The Respondent has not met that
burden. The evidence in this case does not establish that port
engineers assign, responsibly direct, or exercise independent
judgment.
III. CONCLUSION OF LAW
Having considered the record in view of the “refined . . .
analysis to be applied in assessing supervisor status” prescribed
in Oakwood Healthcare, Inc., and the briefs filed by all parties,
I find that the port engineers are not supervisors as defined in
the Act. Accordingly, I issue the following recommended1
[Recommended Order omitted from publication.]

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.