Pacific Dry Dock Co.

National Labor Relations Board - Board Decisions

Jun 27, 1991

303 N.L.R.B. 569 (N.L.R.B. 1991)

569
303 NLRB No. 91
PACIFIC DRY DOCK CO.
1 In this regard, we adopt the judge’s recommendations as to the disposition
of the challenged ballots except with regard to that of Drydock Foreman Lee,
who, for reasons explained below, we find is not a supervisor under the Act.
2 During his employment with the Respondent until March 1987, Aguiar had
been active in the Union and had served as a union steward. At the time of
the election, Aguiar was employed full time by another employer and also
worked for the Union on occasion without pay. Aguiar had no official status
in the Union.
3 Aguiar conversed with these employees in Spanish. Dunn does not speak
Spanish.
Pacific Dry Dock & Repair Company, a division of
Crowley Maritime Corporation and Pacific
Coast Metal Trades District Council and Rob-
ert Reading, Petitioner. Cases 32–CA–10161
and 32–RD–877
June 27, 1991
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 30, 1989, Administrative Law Judge
Richard J. Boyce issued the attached decision and re-
port on objections and challenged ballots. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision in light of
the exceptions and brief and has decided to affirm the
judge’s rulings, findings, and conclusions only to the
extent consistent with this Decision and Order.
The Respondent, Pacific Dry Dock & Repair Com-
pany (PDD), a division of Crowley Maritime Corpora-
tion, operates two shipyards in Oakland, California. On
December 1, 1988, a decertification election was held
at the Respondent’s two shipyard facilities to deter-
mine whether the bargaining unit employees, con-
sisting of the hourly paid production, repair, and main-
tenance employees at the two shipyards, desired to
have the Pacific Coast Metal Trades District Council
(District Council) continue to represent them. The tally
of ballots showed 13 for, and 13 against the Union,
with 12 challenged ballots, a number sufficient to af-
fect the outcome of the election.
The judge found that during the course of the decer-
tification election the Respondent violated Section
8(a)(1) of the Act by demanding that Everardo Aguiar
leave its premises and by threatening him with arrest
if he failed to do so. The judge also found that the Re-
spondent’s actions in this regard constituted objection-
able conduct sufficient to warrant setting aside the
election. For the reasons set forth below, we reverse
the judge’s finding that the Respondent violated Sec-
tion 8(a)(1) of the Act by demanding that Aguiar leave
the facility and by threatening Aguiar with arrest. We
also find, contrary to the judge, that the Respondent’s
actions in this regard did not constitute objectionable
conduct and that the election should not be set aside.
Finally, we shall order that the case be remanded to
the Regional Director for Region 32 with the direction
to open and count those ballots with regard to which
the challenges have been overruled,1 and to take fur-
ther action as set forth below.
The facts concerning the alleged 8(a)(1) violation
are as follows. The decertification election was sched-
uled to take place between 3:30 and 4:30 p.m. on De-
cember 1, 1988, at the Respondent’s yard 2 facility.
The preelection conference was held at 2:30 p.m. and
was attended by the Board agent, representatives from
the eight unions involved in the election, and rep-
resentatives of the Respondent. During the course of
the meeting, the Board agent learned that the District
Council planned to use Aguiar, a former employee of
the Respondent, as an election observer.2 The Board
agent informed the District Council’s representatives
that this would be contrary to the Board’s rules and
that the District Council would have to find another
observer. Consequently, the District Council decided to
use a current employee as an observer in place of
Aguiar.
Unaware that he would not be able to act as an ob-
server, Aguiar arrived at the Respondent’s facility at
approximately 3:30 p.m. He was met by Mark Van
Zevern, a business representative for Painters Local
1176, who was emerging from the preelection con-
ference. Van Zevern informed Aguiar that he could not
act as an observer for the District Council. Neverthe-
less, Aguiar obtained a pass from the gate guard and
accompanied Van Zevern into the yard where they
joined a group of union representatives. At this time
John Dunn, PDD’s production manager, greeted
Aguiar and the two men chatted amiably for several
minutes. Van Zevern and Aguiar then moved to a tele-
phone booth adjacent to the building where the elec-
tion was being held and Van Zevern made two phone
calls. Employees on their way to vote had to pass by
the telephone booth, which was located approximately
25 feet from the foot of the stairway that employees
had to use to reach the polling place, a second-story
loft. After seeing Aguiar converse with an employee
on his way to vote, Dunn joined Van Zevern and
Aguiar near the phone booth. His professed purpose
for doing so was to engage the men in conversation
and thus prevent Aguiar from conversing with employ-
ees on their way to vote. As employees passed by,
however, Aguiar continued to engage them in con-
versation while Dunn and Van Zevern talked.3 His
strategy having failed, Dunn decided to report the situ-
ation to the Respondent’s general manager, Hartsock.
570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The judge found it unnecessary to determine which version of this encoun-
ter was most credible as he found them ‘‘functionally equivalent.’’ For the
purposes of this case, we rely on that version which appears to be most favor-
able to the General Counsel.
5 Approximately 13 or 14 people walked by during the encounter, including
2 recognized as unit employees. Although these employees could observe that
Hartsock was angry with Aguiar and Van Zevern, there is no evidence that
these employees, or that anyone else passing by, heard Hartsock’s threat or
knew why he was angry. Indeed, the two employees later asked Van Zevern
what he had done to make Hartsock angry.
6 As the Supreme Court stated in Sears, Roebuck & Co. v. San Diego Coun-
ty, 436 U.S. 180, 206 at fn. 42 (1978):
Babcock [351 U.S. 105 (1956)] makes clear that the interests being pro-
tected by according limited-access rights to nonemployee, union orga-
nizers are not those of the organizers but of the employees located on
the employer’s property. The Court indicated that ‘‘no . . . obligation is
owed nonemployee organizers’’; any right they may have to solicit on an
employer’s property is a derivative of the right of that employer’s em-
ployees to exercise their organization rights effectively.
Although Aguiar may indeed possess Sec. 7 rights on his own as a statutory
employee of his own employer, his right to enter the Respondent’s property,
like that of the other union organizers (who may also be statutory employees
of other employers, e.g., the Union), is derived from the Sec. 7 rights of the
Respondent’s employees and must be analyzed as such.
7 Jean Country, supra at 14.
8 See, e.g., Lechmere, Inc., 295 NLRB 92 (1989), enfd. 914 F.2d 313 (1st
Cir. 1990).
9 We note that in the week prior to the election Aguiar distributed handbills
at the Respondent’s gate. No party contends that Aguiar had a right to be on
the Respondent’s property prior to the election date.
After receiving Dunn’s call, Hartsock came down to
the yard and met Aguiar and Van Zevern at approxi-
mately 3:45 p.m. The encounter between Hartsock and
Van Zevern and Aguiar lasted between 2 and 6 min-
utes.4 Hartsock told Aguiar to leave the yard. Van
Zevern replied that Aguiar was a union representative
and therefore entitled to stay. Hartsock disputed
Aguiar’s status as an official union representative and
again insisted that Aguiar leave the yard. Hartsock was
‘‘real polite’’ at first, but became ‘‘visibly upset’’ as
the encounter progressed and began ‘‘yelling pretty
loud.’’5 Finally, Hartsock said that he wanted the
‘‘motherfucker [Aguiar]’’ out of the yard and that he
would have him arrested if he did not leave. When
Van Zevern resisted, Hartsock said that he would have
‘‘all of’’ the District Council members arrested if
Aguiar did not leave. At that point, Van Zevern re-
lented and escorted Aguiar off the Respondent’s prem-
ises.
The judge found that Aguiar, although not an em-
ployee of the Respondent, was an employee of another
employer and thus came within the statutory definition
of ‘‘employee’’ under Section 2(3) of the Act. The
judge further found that by distributing handbills in the
week before the election, showing up for the election
to act as an observer, and by remaining in the yard for
the election outcome, Aguiar was both ‘‘aiding the
District Council’’ and ‘‘advancing the cause of rep-
resentation on behalf of PDD’s employees.’’ There-
fore, the judge concluded that Aguiar was exercising
his Section 7 rights to assist labor organizations and to
engage in other protected concerted activity and that
Hartsock’s demands that Aguiar leave the yard and his
threats to have Aguiar arrested or to call the police
interfered with, restrained, and coerced Aguiar in the
exercise of these rights. Finally, observing that Aguiar
was not an employee of the Respondent, the judge
weighed Aguiar’s Section 7 right to be on the Re-
spondent’s premises against the Respondent’s private
property right. Finding that the Respondent’s only rea-
son for seeking Aguiar’s removal was its belief that
Aguiar did not have an official union status, and that
the Respondent ‘‘singled out’’ Aguiar because he was
a statutory employee engaged in protected activity, the
judge concluded that Hartsock’s demands and threats
served no legitimate private property interest. Con-
sequently, the judge concluded that the Respondent
violated Section 8(a)(1). We disagree.
We find the judge’s analysis flawed in two respects.
First, the judge erred in analyzing Aguiar’s right to
have access to the Respondent’s property in terms of
Aguiar’s Section 7 right as a ‘‘statutory employee’’
rather than by reference to the Respondent’s employ-
ees’ Section 7 right to have contact with union rep-
resentatives in furtherance of their legitimate rights to
organize and to exercise their freedom of choice in the
election.6 Second, in balancing the employees’ Section
7 rights against the Respondent’s property interest, the
judge failed to apply the analysis set out in Jean Coun-
try, 291 NLRB 11 (1988), where the Board modified
the analysis it would apply in ‘‘access’’ cases as set
out previously in Fairmont Hotel, 282 NLRB 139
(1986).
In Jean Country the Board stated that ‘‘in all access
cases our essential concern will be the degree of im-
pairment of the Section 7 right if access should be de-
nied, as it balances against the degree of impairment
of the private property right if access should be grant-
ed.’’ In this regard, the Board emphasized that in bal-
ancing these rights, it would view ‘‘the availability of
reasonably effective alternative means as especially
significant . . . .’’7 Clearly, the right asserted here,
namely, the right to organize, is relatively strong.8 Al-
though the election in question was a decertification
election, it obviously still involved, at least in part, the
employees’ right to self-organization. Similarly, the
Respondent’s property interest is a strong one. In this
regard, there is no evidence that the Respondent al-
lowed nonemployees onto its premises without permis-
sion. The record establishes that prior to the election
union organizers did not have such permission.9 Pursu-
ant to an agreement reached by the parties at the
preelection conference, the Respondent allowed union
representatives to remain on the premises during the
election. Moreover, after Van Zevern informed Aguiar
that he could not act as an election observer, Aguiar
had no official status that required his presence on the
Respondent’s property during the course of the elec-
tion. The fact that Aguiar passed through the gate and
571PACIFIC DRY DOCK CO.
10 As to Aguiar’s Spanish-speaking ability, there is no contention that
Aguiar did not have ample time and opportunity before the election to talk
to employees or that other Spanish speakers were not available on election day
if such was necessary or desirable.
11 See Hempstead Motor Hotel, 270 NLRB 121 (1984), and Crest Industries
Corp., 276 NLRB 490 (1985).
12 Hempstead Motor Hotel, supra at 123. We find that Hartsock’s threat to
have all the District Council representatives arrested was not violative of Sec.
8(a)(1) for the same reason, i.e., there is no evidence that unit employees
heard the threat.
13 The ballots of Elbert Cobb, Alfonso Curiel, Atanasio Duenas, Abel
Topete, and Stanley Wilcox were challenged on the ground that their names
did not appear on the voter eligibility list. Baldwin, the Employer’s manager
of personnel and labor relations, testified that the names of these individuals
had not been included on the eligibility list because they were not on the pay-
roll on the cutoff date and did not have seniority status. Baldwin testified that
the Respondent required employees to be on the payroll for 90 days within
a 6-month period to realize seniority status and that employees without senior-
ity status had no right of recall. Finding that these five employees were ‘‘in
essence’’ on-call employees, and that the five met the Board’s voter eligibility
requirements for on-call employees, the judge recommended that the chal-
lenges to their ballots be overruled. The Respondent excepts, contending that
the judge applied the incorrect eligibility formula. The Respondent asserts that
because these employees were laid off and subject to recall, the judge should
have applied the eligibility formula for employees on layoff, that is, whether
they had a reasonable expectancy of recall in the near future. See Atlas Metal
Spinning Co., 266 NLRB 180 (1983). In this regard, the Board requires that
‘‘employees laid off prior to the payroll eligibility period must have had a rea-
sonable expectation of recall as of the payroll eligibility period in order to be
eligible to vote in the election, regardless of whether the employees have been
recalled prior to the election.’’ Apex Paper Box Co., 302 NLRB 67, 68 (1991).
In determining whether a reasonable expectation of recall exists, the Board ex-
amines several objective factors, including ‘‘the employer’s past experience
and future plans, the circumstances surrounding the layoff, and what the em-
ployees were told about the likelihood of recall.’’ Id. at 68. Applying these
criteria to the facts of the present case, we find that these five employees are
eligible to vote. In this regard, we note that the five had worked with regu-
larity during the quarter preceding the election, that the Respondent had not
announced a change in its operation or an intention to discontinue its past
practices, and that the Respondent had not informed the five employees that
there would be less work in the future. Because it is unclear whether on-call
employees would be included in the bargaining unit, we do not pass on the
judge’s finding regarding on-call status.
Members Cracraft and Devaney here apply the reasonable expectancy of re-
call test under the Board’s majority view in Apex for institutional reasons, and
find that the five employees are eligible to vote. They note, however, that be-
cause the five employees had been recalled prior to the election, they would
find these employees in any event eligible under their respective dissents in
Apex.
Finally, the Respondent excepts to the judge’s finding that Foremen
Hendrix, Marino, Moody, and Santiago were supervisors and to his rec-
ommendation that the challenges to their ballots be sustained. We agree with
the judge that there is sufficient evidence to support a finding that these four
men exercised supervisory authority and were supervisors under Sec. 2(11) of
the Act. In this regard, we emphasize Hartsock’s own testimony that if an em-
ployee had not ‘‘proven’’ himself, a foreman’s recommendation to fire that
employee ‘‘would be very persuasive.’’
entered into the yard establishes at most that the Re-
spondent granted permission to Aguiar to enter its
property—permission which it later revoked.
With regard to the existence of reasonable effective
alternatives to Aguiar’s presence on the property, we
emphasize that on the day of the election itself, the
Respondent allowed official union representatives onto
its property. These representatives remained in the yard
throughout the election. We find that the General
Counsel did not show that the presence of these rep-
resentatives in the yard during the course of the elec-
tion was not a sufficiently reasonable alternative to
Aguiar’s presence to protect the Respondent’s employ-
ees’ Section 7 rights to organize and to exercise free-
dom of choice in the election.10 We therefore conclude
that although the right asserted here is certainly worthy
of protection from substantial impairment, the General
Counsel has not established that such impairment
would occur with Aguiar absent from the Respondent’s
property on the election day. Thus, we conclude that
the Respondent was free to revoke its permission to
Aguiar and that Hartsock, in fact, did so when he re-
quested that Aguiar leave the facility. Therefore, we
conclude that Hartsock’s request that Aguiar leave the
Respondent’s premises was lawful and that his threat
to have Aguiar arrested on Aguiar’s refusal to do so
was not a violation of the Act.11
We further find that the Respondent’s employees’
Section 7 rights were not chilled by Hartsock’s display
of anger toward Aguiar. In this regard, we emphasize
that there is no evidence that any employee heard
Hartsock threaten to call the police or to have Aguiar
arrested if he did not leave the yard.12 Passers-by
could only observe that Hartsock was angry with
Aguiar and Van Zevern. In view of the fact that
Aguiar was not a union representative and that the em-
ployees could see the official union representatives
awaiting the election results without incident, we find
that the Respondent’s employees could not reasonably
conclude that they would be subject to the same anger
if they voted for the Union. This is especially true in
the present circumstances where we have found that
Hartsock’s display of anger was provoked by Aguiar’s
refusal to leave the facility and that Hartsock’s threat
to call the police was not unlawful. Thus, we conclude
that the Respondent did not violate Section 8(a)(1) of
the Act.
Finally, as we have found that the Respondent’s em-
ployees’ Section 7 rights to support the Union and to
exercise freedom of choice in the election were not
chilled in the circumstances here, we similarly con-
clude that Hartsock’s display of anger and his threat to
have Aguiar arrested did not constitute objectionable
conduct sufficient to warrant setting aside the election.
As to the election itself, the judge recommended that
the challenges to the ballots of seven voters be over-
ruled and that the challenges to the ballots of five vot-
ers be sustained. As noted above, we adopt the judge’s
recommendations regarding the disposition of the chal-
lenged ballots except with regard to that of Drydock
Foreman Lee.13 Although noting that the record con-
cerning Lee was ‘‘not well developed,’’ the judge
found it ‘‘difficult to imagine’’ how Lee could dis-
charge his responsibilities without the exercise of inde-
pendent discretion in directing the work of others.
Thus, the judge concluded that Lee was a supervisor
and sustained the challenge to his ballot. The Respond-
ent excepts to the judge’s finding on the ground that
572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The District Council previously withdrew its other objections.
2 Sec. 8(a)(1) states that it is an unfair labor practice for an employer ‘‘to
interfere with, restrain, or coerce employees in the exercise of the rights guar-
anteed in Section 7.’’ Sec. 7 states in relevant part that ‘‘employees shall have
the right to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection . . . .’’
3 The two yards are less than a mile apart. PDD’s employees work in them
interchangeably.
4 Aguiar declined a subsequent offer to return, and now works for another
ship-repair firm. The parties stipulated that he remains an ‘‘employee’’ for
purposes of the Act.
the Union has the burden of establishing Lee’s super-
visory status and that the Union has failed to meet that
burden. The Respondent argues that the judge’s finding
is based on conjecture and surmise rather than an anal-
ysis of the evidence. We agree. As the judge himself
stated, there is little evidence in the record regarding
Lee’s status. In these circumstances, we agree with the
Respondent that the District Council, as the party mov-
ing to exclude Lee from voting, has the burden of
proving that Lee is a supervisor and that it has failed
to present evidence sufficient to sustain that burden.
Consequently, we find that Lee is not a supervisor, that
the challenge to his ballot is overruled, and that his
ballot should be opened and counted along with the
seven challenged ballots regarding which the judge
recommended overruling the challenges.
ORDER
The complaint is dismissed.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 32 shall, pursuant to the National Labor Relations
Board Rules and Regulations, within 10 days from the
date of this decision, open and count the ballots of El-
bert Cobb, Alfonso Curiel, Atanasio Duenas, Abel
Topete, Stanley Wilcox, Walter Burke, Robert Read-
ing, and Thurman Lee. The Regional Director shall
further prepare and cause to be served on the parties
a revised tally of ballots and thereafter issue the appro-
priate certification.
Donna Yamashiro, Esq. and Virginia L. Jordan, Esq., for the
General Counsel.
Christopher J. Martin, Esq., of San Jose, California, for the
Respondent.
Vincent A. Harrington, Jr., Esq. and Robert Hirsch, Esq., of
San Francisco, California, for the Charging Party.
Robert Reading, pro se.
DECISION AND REPORT ON OBJECTIONS AND
CHALLENGED BALLOTS
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. This con-
solidated matter was tried in Oakland, California, on May 10
and June 12 and 13, 1989.
On December 1, 1988, in Case 32–RD–877, the Board
conducted an election among the hourly paid production, re-
pair, and maintenance employees at the two Oakland ship-
yards of Pacific Dry Dock & Repair Company (PDD), a di-
vision of Crowley Maritime Corporation (Crowley), to deter-
mine if they desired continued representation by Pacific
Coast Metal Trades District Council (District Council). The
tally was 13 for and 13 against, with 12 challenged ballots.
The election derived from a petition filed by Robert Read-
ing, a PDD employee, on July 20, 1988; and a Stipulation
for Certification on Consent Election approved by the Re-
gional Director on November 10. The District Council filed
postelection objections on December 8. On January 12, 1989,
the Regional Director issued a report stating that one of the
objections1 and the 12 challenges raised ‘‘material and sub-
stantial issues . . . which can best be resolved by a hear-
ing.’’
The charge in Case 32–CA–10161 was filed by the Dis-
trict Council on February 4, 1989. The complaint issued on
March 21 and alleges that PDD violated Section 8(a)(1) of
the National Labor Relations Act (the Act) as follows:2
On or about December 1, 1988, [PDD] . . . acting
through Robert Hartsock, in the presence of its employ-
ees, during the course of an NLRB-conducted decerti-
fication election, discriminatorily threatened to have a
statutory employee/organizer of the Union arrested un-
less said employee left Respondent’s premises because
of his activities on behalf of the [District Council].
Coincident with the complaint’s issuance, the Regional Di-
rector issued an order consolidating the two cases for hear-
ing, noting that both involve the same alleged misconduct.
I. JURISDICTION AND LABOR ORGANIZATION
PDD conducts a ship-repair business in Oakland. The
pleadings establish and I find that it is an employer engaged
in and affecting commerce within Section 2(2), (6), and (7)
of the Act.
The pleadings also establish and I find that the District
Council, comprised of some 10 craft unions, is a labor orga-
nization within Section 2(5) of the Act.
II. PPD’S ALLEGED MISCONDUCT
A. Evidence
The election, at PDD’s yard 2,3 ran from 3:30 to 4:30 p.m.
A shift-change occurred at 4 p.m. The polling place was a
second-floor loft, accessible by an outside stairway.
Everardo Aguiar had been a PDD painter for about 10
years until participating in a strike, sanctioned by the District
Council, that began in March 1987.4 He was the District
Council’s chief steward the last 5 or so years of his time
with PDD; and, although no longer on the PDD payroll, he
campaigned for the District Council in the week before the
current election, distributing leaflets outside one of the gates
on two occasions.
Aguiar, expecting to be one of the District Council’s elec-
tion observers, arrived at yard 2 about when voting began.
He was met in the parking lot by Mark Van Zevern, a busi-
ness representative for Painters Local 1176, who had just
emerged from the preelection conference. Van Zevern told
him that the Board agent conducting the conference had said
573PACIFIC DRY DOCK CO.
5 Dunn, who does not understand Spanish, testified that he saw Aguiar speak
individually, in Spanish, to four employees—two whom he named and ‘‘a cou-
ple others’’—as they ‘‘were heading upstairs’’ to vote. He added that, after
greeting them cordially, Aguiar ‘‘became very direct and pointed,’’ causing
Dunn to assume that he was ‘‘giving directions’’ how to vote. Aguiar, cor-
roborated by Van Zevern, testified that he confined his remarks to simple
greetings. Van Zevern admittedly knows ‘‘very little’’ Spanish, but does ‘‘un-
derstand some words.’’
only PDD employees could be observers. Aguiar nevertheless
accompanied Van Zevern into the yard, first obtaining a pass
from the gate-guard, and the two joined a group of union
representatives waiting outside near the plate shop until the
ballots could be counted. While they were there, John Dunn,
PPD’s production manager, greeted Aguiar and the two chat-
ted amiably for several minutes. Dunn testified that he did
not question why Aguiar was there: that he ‘‘just assumed
that he was there because of the election.’’
Aguiar and Van Zevern shortly proceeded to a telephone
booth adjacent the building where the election was taking
place, and Van Zevern made two calls. The booth was per-
haps 25 feet from the foot of the stairway to the polling
place; and, according to Dunn, the employees ‘‘had to go by
[it] to be able to go up the stairs to where the voting was
taking place.’’ Dunn shortly engaged Van Zevern and Aguiar
in conversation at the booth. His professed purpose was that,
having seen Aguiar speak to an employee enroute to vote,
he ‘‘went over there to try to make conversation . . . so that
they wouldn’t be talking with the other’’ prospective voters.
Dunn concededly did not ask Aguiar to avoid talking with
employees, however, nor did he say anything to Van Zevern
‘‘pertaining to the election.’’ Dunn testified that his strat-
agem failed—that Aguiar ‘‘would break off and talk with’’
other employees passing by while he and Van Zevern
‘‘would keep talking’’; so he ‘‘figured’’ he should report the
situation to Hartsock, PDD’s general manager.5
Hartsock confronted Aguiar and Van Zevern, still at the
telephone booth, at or about 3:45. The record is
uncontroverted that he told Aguiar to leave the yard; that
Van Zevern said Aguiar was a union representative and thus
entitled to stay; that Hartsock disputed Aguiar’s having offi-
cial union status and persisted in his demand; and that, fi-
nally, after Crowley’s manager of personnel and labor rela-
tions, Tom Baldwin, and a representative of the Machinists
Union, Marvin Relso, were summoned to the scene, Van
Zevern relented and escorted Aguiar to the gate.
The record is in conflict, however, concerning the precise
form of Hartsock’s demand. Van Zevern testified that
Hartsock said he ‘‘[wanted] the motherfucker out of [his]
yard’’; that he would have him ‘‘arrested’’ if he did not
leave; and, to Van Zevern’s resisting, that he would have
‘‘all of’’ the District Council representatives ‘‘arrested,’’ as
well, if Aguiar did not leave. Similarly, Aguiar recounted
that Hartsock first said he would have him ‘‘arrested’’ if he
did not leave; then, faced with Van Zevern’s continued obdu-
racy, exclaimed, ‘‘Get this motherfucker off of my property
or I’m going to have you arrested.’’
Michael Regan, business manager of Boilermakers Local
6, testified that he heard sounds of an altercation from about
20 feet away, and that, approaching ‘‘to see what . . . was
going on,’’ he heard Hartsock tell Van Zevern to ‘‘get this
motherfucker out of this] shipyard,’’ after which Hartsock
told Kelso that Aguiar ‘‘had to be removed’’ or all the Dis-
trict Council representatives would be ‘‘subject to arrest.’’
Hartsock testified that he announced, after several times
demanding that Aguiar leave, ‘‘Look, he’s either going to
leave or I’m going to have to call the police and get them
in here to escort him out of the yard.’’ Dunn likewise
averred that, after arguing to and fro with Van Zevern,
Hartsock said to Aguiar, ‘‘If you don’t leave, I’ll call the po-
lice and have you escorted out of the yard’’; and Baldwin
recalled Hartsock’s ‘‘indicating] that he would call the police
and have [Aguiar] escorted off the premises.’’
Hartsock denied ‘‘threaten[ing] to have anybody arrested’’
or calling Aguiar a ‘‘motherfucker’’; and Dunn and Baldwin
both testified that they did not hear him use the words ‘‘ar-
rest’’ or ‘‘motherfucker.’’
Hartsock testified that he stated, in support of his insist-
ence that Aguiar leave, that he was not a union representa-
tive and that he had not attended the preelection conference
‘‘where the agreement was made for only those people at
that conference to remain in the yard.’’ He elaborated, con-
cerning this supposed agreement, that he had asked ‘‘towards
the end’’ of the conference if PDD had ‘‘to allow’’ the Dis-
trict Council representatives to remain on the premises dur-
ing the election; that the Board agent answered that it was
‘‘up to’’ PDD; and that he then proclaimed, ‘‘Okay, it’s fine
if you guys that are here now remain on the premises.’’
Hartsock further testified that he cited this ‘‘agreement’’ to
Kelso, and that Kelso thereupon told Aguiar, ‘‘You shouldn’t
be in the yard.’’
Baldwin largely echoed Hartsock, testifying that the Board
agent had said during the preelection conference that the
union representatives were ‘‘basically guests’’ and PDD
‘‘had the right to ask them to leave’’; that Hartsock there-
upon ‘‘indicated’’ that he was giving ‘‘authorization to be in
the yard’’ to conference attendees; that Hartsock later ‘‘indi-
cated’’ to Aguiar that he would have to leave because he was
not among ‘‘the individuals who had permission to remain
in the yard’’; and that Kelso, agreeing, injected that the
union people were ‘‘all guests’’ and PDD ‘‘could ask any
one of us or all of us to leave.’’
Dunn, who did not attend the preelection conference, testi-
fied, vaguely, that he ‘‘believe[d]’’ Hartsock said, in support
of his demand, that Aguiar ‘‘wasn’t at the pre-election con-
ference’’; and that Kelso then remarked that Aguiar was ‘‘a
guest’’ and ‘‘probably’’ should leave.
PDD’s witnesses to the contrary, Van Zevern testified that
Hartsock cited no reason for Aguiar’s ouster; that, while the
preelection conference dealt with where the union representa-
tives were to wait out the election, their being on the prem-
ises was never an issue; that he could not recall the Board
agent’s characterizing them as ‘‘guests’’; and that Kelso, far
from agreeing that Aguiar should leave, told Van Zevern:
‘‘[I]t’s your call. You make a decision and we’ll back you
up.’’
Regan, roughly corroborating Van Zevern, testified that he
could not recall any limitation on the number of union rep-
resentatives on the premises, or the Board agent’s terming
them ‘‘guests.’’ Indeed, Regan testified, a proposal by the
Petitioner, Reading, that the union officials leave during the
election wag rejected. Regan mirrored Van Zevern, as well,
that Relso said to Van Zevern, ‘‘We’re here to back you up,
whatever you want to do.’’ With that, according to Regan,
Van Zevern stated, ‘‘There’s no reason for us all to go to
jail,’’ and walked Aguiar to the gate.
574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Van Zevern identified the two employees as Charles Turner and Alfonso
Curiel. He recounted that Turner ‘‘approached’’ him at or about 4:15 and, re-
marking that he had never seen Hartsock ‘‘that upset,’’ asked Van Zevern,
‘‘What the hell did you do?’’ Van Zevern assertedly answered, ‘‘I have no
idea what we did to piss him off, but . . . obviously we did.’’ Van Zevern
continued that Curiel exclaimed to him, a minute or two later, ‘‘Goddamn, you
pissed Hartsock off, didn’t you?’’ Turner, called by PDD, testified that he con-
versed with Van Zevern ‘‘after the election,’’ but could not remember what
was said. He averred that he did not see Hartsock at all that day, let alone
in the subject encounter. Curiel did not testify.
7 Aguiar testified that Francisco Molina said to him in Spanish, as Aguiar
was leaving the premises, ‘‘They throw you out’’; and that he responded,
‘‘Yes, they threw me out.’’ Aguiar recalled that Molina was laughing. Molina
did not testify. Aguiar also testified that Charles Turner asked him, in the
parking lot, ‘‘What are you doing over here?’’; that he replied, ‘‘They kicked
me out’’; that Turner asked why; and that he said, ‘‘Because they didn’t be-
lieve I was a representative of the union.’’ Turner ‘‘just laughed,’’ according
to Aguiar. Turner largely corroborated Aguiar, testifying that Aguiar told him
Hartsock had ‘‘threatened to call the police . . . if he didn’t leave’’ the yard
and that he then left because ‘‘it wasn’t worth going to jail.’’
8 Regan enlarged that ‘‘about 40 or 50 people worked in the area,’’ plus
‘‘probably an additional 40 Navy people.’’ He added that ‘‘it was hard to dif-
ferentiate between who was who’’ because not all Navy personnel were in uni-
form.
9 Baldwin conceded, however, that his back was turned.
10 But, Baldwin acknowledged, Hartsock did speak ‘‘a little bit louder . . .
to make his point.’’
11 Aguiar assertedly brought several grievances on his own behalf. One, in
1985, resulted in his receiving an unspecified amount of backpay because of
an improper denial of overtime opportunities. He testified that Dunn remarked,
when tendering the award, ‘‘Here, asshole’’; and that, later the same day,
Dunn said he was ‘‘going to beat [Aguiar] up,’’ only to break into a smile
and say he ‘‘was joking.’’ Dunn denied making either comment.
12 Sec. 2(3) of the Act states: ‘‘The term ’employee’ shall include any em-
ployee, and shall not be limited to the employees of a particular employer,
unless the Act explicitly states otherwise . . . .’’
13 Eastex v. NLRB, 437 U.S. 556, 564 (1978); H. B. Zachry Co., 289 NLRB
838 (1988); Yellow Cab, 210 NLRB 568, 569 (1974); Washington State Serv-
ice Employees (Jill Severn), 188 NLRB 957, 958–959 (1971).
14 The two versions being functionally equivalent, the precise formulation of
Hartsock’s threats need not be resolved. See Peddie Buildings, 203 NLRB 265,
266 fn. 4 (1973).
15 E.g., Albertsons, 289 NLRB 177 (1988); Peddie Buildings, supra at 203
NLRB 266.
16 Hudgens v. NLRB, 424 U.S. 507, 522 (1976), quoting from NLRB v. Bab-
cock & Wilcox Co., 351 U.S. 105, 112 (1956). See also Sears, Roebuck &
Co. v. Carpenters, 436 U.S. 180, 204–207 (1976); Providence Hospital, 285
The record contains no evidence that the Board agents
conducting the election were notified of, or asked to inter-
vene in, the dispute.
By various estimates, the encounter lasted between 2 and
6 minutes. Van Zevern testified that ‘‘probably 13 or 14 peo-
ple’’ walked by while it progressed, two of whom he recog-
nized as unit employees; that ‘‘a number’’ paused ‘‘to see
what was going on’’; and that two unit employees spoke to
him about it in the immediate aftermath.6 Aguiar testified
that he did not notice any workers nearby during the inci-
dent, but that two employees spoke to him about it soon
afterward;7 and Regan testified that ‘‘a lot of both employees
and Navy personnel [were] going by the area’’ at the time.8
Hartsock testified, on the other hand, that he ‘‘didn’t notice
any’’ unit employees in ‘‘close proximity’’ to the encounter;
Dunn, that he ‘‘didn’t see any employees . . . within ear-
shot’’; and Baldwin, that he saw no employees passing by.9
Van Zevern testified that Hartsock became ‘‘more visibly
upset’’ as the exchange progressed; that his voice ‘‘escalated
to the point he was yelling pretty loud.’’ Aguiar recounted
that Hartsock was ‘‘real polite’’ at first, but that he ‘‘got
upset’’ and his voice changed from ‘‘normal’’ to a
‘‘scream.’’ Regan testified that Hartsock spoke ‘‘loud
enough’’ to command his attention from about 20 feet away,
and was ‘‘visibly upset.’’
Hartsock would have it, however, that he was ‘‘firm’’ with
Aguiar, but ‘‘didn’t raise [his] voice’’; Dunn, that Hartsock,
although ‘‘direct in what he was saying,’’ did not raise his
voice and ‘‘wasn’t angry’’; and Baldwin, that Hartsock
‘‘didn’t seem to be agitated’’ and ‘‘wasn’t shouting or hol-
lering.’’10
Kelso did not testify, and, as against Regan’s considerable
testimony about the encounter, Hartsock and Dunn testified
that Regan was not in a position to observe.
Aguiar’s union activities were as an unpaid volunteer. He
testified that, as chief steward while on the PDD payroll, he
raised informal complaints on behalf of employees about
once a week, and initiated a formal grievance ‘‘every three
months or so.’’11 Hartsock admittedly received reports ‘‘on
occasion’’ about these activities. Aguiar also testified that
Hartsock and Dunn both spoke to him as he handbilled be-
fore the election, the implication being that they were aware
of that activity. Hartsock denied that he saw Aguiar so en-
gaged, and Dunn testified that he did not recall it.
The evidence is mixed whether Hartsock knew of the Dis-
trict Council’s intent to use Aguiar as an election observer.
Although conceding that the Board agent asked the parties
during the preelection conference whom they wished to use,
Hartsock denied that Aguiar’s name came up. Baldwin
echoed that denial. Regan testified, on the other hand, that
Aguiar’s serving was ‘‘openly discussed’’ during the con-
ference. Van Zevern testified to like effect. Regan and Van
Zevern acknowledged, however, that the Board agent told
them, in a hallway aside, that Aguiar could not serve.
B. Conclusions
1. The 8(a)(1) violations
As stipulated by the parties, Aguiar, although not a PDD
employee, is an ‘‘employee’’ for purposes of the Act.12 By
distributing prounion handbills the week before the election,
by showing up for the election expecting to be an observer,
and by remaining in the yard for the election outcome on
learning that he could not so serve, he was at once aiding
the District Council and advancing the cause of representa-
tion on behalf of PDD’s employees. He therefore quite lit-
erally was within his Section 7 rights ‘‘to . . . assist labor
organizations’’ and ‘‘to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid
or protection.’’ That he was an employee of an employer
other than PDD makes no difference.13
Hartsock’s demands that Aguiar leave and his attendant
threats to have him arrested or to call the police, depending
on whose version is believed,14 perforce interfered with, re-
strained, or coerced Aguiar in the exercise of those Section
7 rights.15
That, however, does not conclusively establish a violation
of Section 8(a)(1). Rather, Aguiar not being an employee of
PDD, his exercise of Section 7 rights on its premises must
be weighed against its private property rights, ‘‘with as little
destruction of one as is consistent with the maintenance of
the other.’’16 Hartsock’s only reason for seeking Aguiar’s
575PACIFIC DRY DOCK CO.
NLRB 320 (1987); Fairmont Hotel, 282 NLRB 139, 140–143 (1986); Peddie
Buildings, supra at 203 NLRB 266–267.
17 Notably, Aguiar obtained a gate pass before going onto the premises, and
Dunn, in two encounters with him before Hartsock entered the picture, in no
way challenged his being there. The record contains no evidence that Hartsock
cited Aguiar for electioneering, and, even if he had, that would not have
worked to vindicate PDD’s property interests. I conclude in any event, the
only indications to the contrary being Dunn’s professed speculations, that
Aguiar did not overreach. Blazes Broiler, 274 NLRB 1031 (1985); Milchem,
Inc., 170 NLRB 362 (1968).
18 Peddie Buildings, supra at 203 NLRB 267. Although I do not believe
Hartsock and Baldwin that Hartsock stated, during the preelection conference,
that only those union officials at the conference could be on the premises dur-
ing the election, the fact of such a pronouncement would not override Aguiar’s
Sec. 7 rights. This is not to say that PDD would be obliged to hold ‘‘open-
house’’ regardless of the number of stranger employees coming into the yard
in support of the District Council. That would inject considerations not before
me.
19 Quoting Dunn.
20 Crediting Van Zevern, Aguiar, and Regan. Their testimony in this regard
was much more convincing than that of Hartsock, Dunn, and Baldwin and was
more plausible, as well, given the probabilities inherent in the situation.
Hartsock and Dunn are not credited that Regan was not in a position to ob-
serve. His proximity perhaps did not register with them because of their ab-
sorption in the encounter.
21 Crediting Van Zevern and Regan.
22 Crediting Van Zevern and Aguiar, who was corroborated by Turner.
Turner’s testimony that he did not see Hartsock on the day in question (see
fn. 6, supra) was not convincing.
23 Including those determined below to have been challenged in error.
24 Thus, Cobb was on the pay roll from August 13 to December 16, 1987,
from October 4 to December 16, 1988, from January 12 to February 9, 1989,
and from February 15, 1989, to the time of trial; Curiel was on the pay roll
on December 15, 1987, from February 2 to an uncertain date (the record entry
is illegible) after April 8 and before June 6, 1988, from June 6 to 22, 1988,
from September 27 to December 16, 1988, from January 23 to February 9,
1989, and from February 23 to 24, 1989; Duenas was on the pay roll from
January 21 to February 9, 1987, from February 11 to 19, 1987, from February
24 to 25, 1987, from March 4 to 9, 1987, from February 24 to May 19, 1988,
from September 19 to 23, 1988, and from September 27, 1988, to the time
of trial; Topete was on the pay roll from February 10 to May 19, 1988, from
June 4 to 17, 1988, from June 27 to 30, 1988, from September 6 to 23, 1988,
from September 27 to December 16, 1988, from January 13 to February 9,
1989, and from February 18, 1989, to the time of the trial; and Wilcox was
on the pay roll from April 14 to May 3, 1988, from sometime after May 3
to sometime in July before July 23, 1988 (the record entries are illegible),
from July 23 to 28, 1988, from August 22 to 25, 1988, from September 7,
1988, to January 13, 1989, and from January 24 to March 21, 1989.
25 West Virginia Newspaper, 265 NLRB 446, 446 (1982).
ouster—as shown by his disputing Van Zevern’s claim that
Aguiar was a union representative and by his exempting
known union representatives from like treatment—was that
he did not perceive him to have official status. In a real
sense, then, he singled out Aguiar because he was a statutory
employee engaged in protected activity.
Thus, Hartsock’s demands and threats served no legitimate
private property interest.17 I conclude, therefore, that PDD
violated Section 8(a)(1) as alleged.18
2. The objection
Hartsock’s 8(a)(1) conduct occurred during the first half of
the polling period, at a place that the employees ‘‘had to go
by . . . to go up the stairs to’’ vote.19 Moreover, he spoke
with a considerably raised voice and betrayed intense
anger.20 The inference thus is inescapable that employees yet
to vote either saw or heard about the episode, particularly be-
cause some employees were seen nearby21 and some indi-
cated by their later comments that they had observed or
heard about it.22
I conclude that, by so vividly displaying his animus to-
ward a union sympathizer in these circumstances, Hartsock
interfered with free voter choice; and that the election there-
fore should be set aside, and a new election conducted, if,
after a tally of all valid ballots,23 the District Council has
less than a majority.
IV. THE CHALLENGED BALLOTS
As mentioned, 12 ballots were challenged. Five were chal-
lenged because the voters’ names were not on the voters’
list, and seven on the ground that the voters were super-
visors.
A. The Five Not on the Voters’ List
1. Evidence
The five not on the voters’ list are Elbert Cobb, Alfonso
Curiel, Atanasio Duenas, Abel Topete, and Stanley Wilcox.
The stipulated pay roll period for voter eligibility was that
ending August 7, 1988. None of the five was then on the pay
roll. All were on it at the time of the election, however,and
had been continuously for several weeks before. All also had
been on it at various other times, including before August
7.24
Baldwin testified that he, Hartsock, and Dunn ‘‘put to-
gether’’ the voter list; and that they excluded these five, and
a number of others, because they were not on the pay roll
on the cutoff date and had not achieved seniority status. He
explained that those without seniority had ‘‘no right to re-
call’’ and that, to realize seniority, an employee wag required
by company policy to be on the pay roll for 90 days in a
6-month period.
Hartsock testified that PDD’s complement in unit classi-
fications ranged roughly between 30 and 100 in 1988, chang-
ing daily; that ‘‘about 40’’ had seniority; that more of the
1988 employees lacked than had seniority; that, the unions
comprising the District Council no longer being a manpower
source because of the 1987 strike, PDD ‘‘developed a pool’’
from which it since has drawn; and that, once the seniority
roster is exhausted, it recalls those from the pool who have
‘‘proved themselves.’’
2. Conclusion
The five in question, in essence, are on-call employees.
The Board considers on-call employees to be eligible to vote
‘‘if they regularly average four hours of work per week in
the quarter preceding the election.’’25 Each of the five far
exceeded that. I therefore overrule the challenges to their bal-
lots.
B. The Alleged Supervisors
The seven alleged supervisors are Walter Burke, James
Hendricks, Thurman Lee, Charles Marino, James Moody,
Robert Reading (the Petitioner), and Louis Santiago. Reading
challenged Burke’s ballot; the District Council challenged the
others.
576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 Crediting Hartsock. Harold Vaquez, a PDD warehouseman, testified that
Moody and Santiago are ‘‘coordinators,’’ also known as ship superintendents.
The coordinators are above the foremen and below Dunn in the chain of com-
mand, appear to possess supervisory powers, and have never been considered
part of the unit. Vaquez’ efforts to pin the title on Moody and Santiago, al-
though perhaps sincere, did not come across as authoritatively based.
27 Crediting Hartsock, who was not meaningfully contradicted on the point.
28 But, Hartsock testified, a foreman’s recommendation to fire a proven em-
ployee ‘‘wouldn’t be very persuasive’’ standing alone.
29 Hartsock testified that the foremen are authorized to stop a job, ‘‘if nec-
essary,’’ to ensure safety.
30 Orders are subject to approval, however, by Dunn or a coordinator.
31 Only Dunn being ‘‘aware of the whole, total picture.’’
32 Hartsock nevertheless conceded that foremen might adjust grievances ‘‘at
the lowest possible level.’’
1. The foremen
a. Evidence
Four of the seven alleged supervisors—Hendricks, Marino,
Moody, and Santiago—are called foremen.26 The voter list
described Hendricks and Marino simply as painters, Moody
as a pipefitter, and Santiago as a shipwright. Hendricks has
been on medical leave since July 1988. Hartsock testified
that he expects Hendricks to return, but has no idea when.
Marino meanwhile has been acting foreman of the paint
shop. He will revert to his former leadman’s position, ac-
cording to Hartsock, when Hendricks comes back.
PDD has a foreman for each of its several crafts. They are
hourly paid, so historically have been deemed in the bar-
gaining unit; and each works with the tools of his craft to
a greater or lesser extent, depending on the size of his crew
at a given time.27 Each receives $1 per hour above journey-
man scale, on the other hand, has a desk and attends a week-
ly ‘‘production meeting’’ with Dunn and PDD’s three coor-
dinators.
Hartsock testified that the foremen are involved in hiring
‘‘on a limited basis.’’ He amplified that they interview appli-
cants ‘‘on occasion’’—that is, when Dunn and other higher-
ups are not available, and that they independently arrange for
help when PDD ‘‘need[s] somebody on short notice’’—in
‘‘an emergency or [for] a weekend job.’’ Hartsock hastened
to add that this latter is ‘‘not the normal routine,’’ and gen-
erally requires little exercise of judgment inasmuch as the
foreman is to seek, in order, current employees not on duty,
those on the seniority roster but not on the pay roll, and then
those in the nonseniority pool.
With regard to firing, Hartsock testified that, although he
makes the ‘‘ultimate decision,’’ the foremen sometimes
‘‘have input.’’ He particularized that, if an employee’s pro-
ductivity were the problem, he ‘‘would talk to people that
had knowledge of that circumstance,’’ including the foreman,
and that the foreman’s recommendation to fire ‘‘would be
very persuasive’’ if the employee had not previously ‘‘prov-
en’’ himself.28
Hartsock testified that the foremen assign work to those
under them and ‘‘keep track of’’ their time, intervene with
the personnel department should a mistake occur in a crew-
member’s pay, enforce PDD- and government-mandated
safety standards,29 and see that equipment is maintained and
needed materials and supplies are ordered.30
Hartsock testified that the foremen cannot grant time off
without clearing with Dunn,31 that all employee discipline
‘‘goes through’’ Dunn, that Dunn and he determine discipli-
nary sanctions, and that the foremen are not authorized to ad-
just employee grievances.32
The duties and responsibilities of the foremen have
changed ‘‘slightly’’ in the last couple of years, according to
Hartsock, but without any erosion of their authority. Because
PDD has not used the hiring halls of the District Council’s
member unions since the 1987 strike, for example, the fore-
men do not call in orders as before; and, whereas each fore-
men had been equally involved in all jobs employing his
craft until the summer of 1988, he now focuses on ‘‘the most
important jobs,’’ leaving oversight of the rest to his leadman
‘‘unless there’s a problem.’’ Hartsock testified that this
change was made because the foremen had been ‘‘spread
. . . too thin,’’ and was intended to improve their effective-
ness on the ‘‘more complicated and more involved jobs.’’
Van Zevern testified that Hendricks often called him, ask-
ing for the referral of painters, between late 1983 and the
strike; that Hendricks asked for people by name the vast ma-
jority of the time; that he told Van Zevern ‘‘on a number
of occasions’’ that he was seeking a replacement for some-
one he had fired; and that he also said ‘‘on a number of oc-
casions’’ that, having once fired this or that person, he did
not want the person referred again.
Van Zevern testified, as well, that he dealt with Hendricks
on numerous grievances, and that they settled them ‘‘in most
cases’’ without involving Dunn or Hartsock. Aguiar testified
that Hendricks authorized vacation time for those under him
before the strike; that the painters ‘‘used to ask him’’ and
‘‘then he’d decide.’’
Thomas Scott testified that he was a part of a five-man
pipefitting crew under Moody for a few days in early 1988;
that Moody ‘‘directed’’ the crew, but did not himself work
with the tools. Scott testified, in addition, that Moody reas-
signed him from that job, on a Navy tugboat, to one on a
Coast Guard cutter; and that Moody also ‘‘set up’’ and grad-
ed a silver brazing test administered to Scott. Scott worked
for PDD only a week and a half in early 1988, and has not
observed Moody since.
Rick Anderson, now a business representative for Car-
penters Local 2236, testified that Santiago hired him in 1983;
that he directed the carpentry work on the USS Gallant at
that time; that he did not work with the tools on that job;
and that he ‘‘was running everything going on’’ with regard
to shipwrights.
None of the four foremen in question testified.
b. Conclusion
To recapitulate, PDD’s foremen attend production meet-
ings with higher-ups, effectively recommend discharge in
some situations, assign work, independently arrange for addi-
tional employees on occasion, sometimes interview job appli-
cants, enforce safety standards, and ‘‘keep track of’’ time.
They in addition are paid $1 per hour more than the journey-
men and have their own desks.
577PACIFIC DRY DOCK CO.
33 E.g., Rose Metal Products, 289 NLRB 1153 (1988). Sec. 2(11) states:
The term ‘‘supervisor’’ means any individual having authority, in the inter-
est of the employer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to recommend such action,
if in connection with the foregoing the exercise of such authority is not of
a merely routine or clerical nature, but requires the use of independent judg-
ment.
34 Given that Marino had been acting in Hendricks’ stead for several months
before the election and that the timing of Hendricks’ return is uncertain,
Marino must be deemed the equal of the other foremen.
35 Hartsock explained, ‘‘He was the supervisor, so it’s overall his responsi-
bility.’’
36 E.g., Howland Hook Marine Terminal, 263 NLRB 453, 455 (1982);
Teamsters Local 626 (Quality Meat), 224 NLRB 186, 186–187 (1976); Adam
& Eve Cosmetics, 218 NLRB 1317, 1317 (1975).
37 Hartsock enlarged that PDD builds about 10 drydocks a month, and that
the time required for each ranges from 2 hours to a day and a half.
The four in question thus possess certain of the indicia of
supervisory status set forth in Section 2(11) of the Act.33 I
consequently sustain the challenges to their ballots.34
2. Walter Burke
a. Evidence
Burke was classified as a warehouseman on the voter list.
Hartsock testified that Burke bears the title of leadman, is
‘‘in charge of the warehouse,’’ and ‘‘generally’’ has three or
four warehousemen under him. As a leadman, he receives 60
cents per hour above journeyman scale. Burke has his own
desk, according to Hartsock, and is responsible for seeing
that warehouse equipment is maintained and that safety
standards are observed.35 Hartsock added that Burke works
with the tools, which is to say that he drives a forklift and
helps crate and uncrate; and that he is considered part of the
unit.
Harold Vaquez, a PDD warehouseman, testified that Burke
directs the work in the warehouse, expanding:
Well, if we had a certain shipment of material that had
to be shipped out and it was a priority one, he would
tell us that that has to be done today. We have to get
these particular items out and shipped or something, re-
ceived or checked, depending on what it is.
Burke did not testify.
b. Conclusion
The record affords no substantial basis for inferring that
Burke’s duties are anything but routine, that his direction of
others entails any significant measure of independent judg-
ment, or that he otherwise satisfies any of the supervisory
criteria.36
I therefore overrule the challenge to his ballot.
3. Thurman Lee
a. Evidence
Lee was termed a dockman on the voter list. Hartsock tes-
tified that Lee is ‘‘the one that operates the drydock and sets
the blocks,’’ that he is ‘‘responsible for seeing that that’s
done properly,’’ and that this entails coordinating several
crafts. This occupies about 20 percent of Lee’s time, accord-
ing to Hartsock,37 the remainder being devoted to general
maintenance work and ‘‘special projects’’ of Dunn’s choos-
ing, such as remodeling the lunchroom. Hartsock testified
that Lee works with the tools and has his own desk.
Vaquez testified that Lee orders supplies and materials
from him; and Rick Anderson, that he dispatched several em-
ployees from his union’s hiring hall in 1985 on Lee’s re-
quest.
Lee did not testify.
b. Conclusion
Although the record concerning Lee is not well developed,
I find it difficult to imagine how he can discharge his re-
sponsibilities—especially those related to the building of dry-
docks—without exercising considerable amounts of inde-
pendent discretion while directing the work of others.
I conclude, therefore, that Lee is a supervisor; and sustain
the challenge to his ballot.
4. Robert Reading
a. Evidence
Reading was classified as a crane operator on the voter
list. He credibly testified that he operates a crane ‘‘about 65
percent of the time,’’ spending the balance doing ‘‘a variety
of things’’—such as helping various other crafts and doing
paperwork in connection with jobs for the Navy.
Reading further testified, without controversion, that he
does not hire, fire, or discipline others, and that no one is
under him.
b. Conclusion
The record does not remotely suggest that Reading is a su-
pervisor. I therefore overrule the challenge to his ballot.
CONCLUSION OF LAW IN CASE 32–CA–10161
PPD violated Section 8(a)(1) of the Act on December 1,
1988, when its general manager, Robert Hartsock, threatened
a statutory employee, Everardo Aguiar, that he would call
the police or cause him to be arrested, because he was en-
gaging in activity protected by Section 7 of the Act.
Report in Case 32–RD–877
A. The Objection
By the same unlawful conduct, PDD interfered with free
voter choice in the election held December 1, 1988. That
election therefore should be set aside and a new election con-
ducted if, after a tally of all valid ballots, the District Council
has less than a majority.
B. The Challenged Ballots
The challenges to the ballots of the following voters are
overruled: Elbert Cobb, Alfonso Curiel, Atanasio Duenas,
Abel Topete, Stanley Wilcox, Walter Burke, and Robert
Reading. Their ballots should be counted.
The challenges to the ballots of the following voters are
sustained: James Hendricks, Charles Marino, James Moody,
Louis Santiago, and Thurman Lee. Their ballots should not
be counted.
[Recommended Order omitted from publication.]