Tracor Marine, Inc.

National Labor Relations Board - Board Decisions

May 27, 1977

229 N.L.R.B. 1016 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tracor Marine, Inc. and International Union of
Operating Engineers, Local 675, AFL-CIO. Case
12-CA-7237
May 27, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On February 14, 1977, Administrative Law Judge
John P. von Rohr issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Tracor Marine,
Inc., Port Everglades, Florida, its officers, agents,
successors, and assigns, shall take the action set forth
in said recommended order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Upon a
charge filed on May 27, 1976, the General Counsel of the
National Labor Relations Board, by the Regional Director
for Region 12 (Tampa, Florida), issued a complaint on
June 28, 1976, against Tracor Marine, Inc., herein called
Respondent or the Company, alleging that it had engaged
in certain unfair labor practices in violation of Section
8(a)(l) and (3) of the National Labor Relations Act, as
amended, herein called the Act. Respondent filed an
answer denying the allegations of unlawful conduct alleged
in the complaint.
Pursuant to notice, a hearing was held in Fort Lauder-
dale, Florida, on September 23 and 24, 1976. Briefs were
received from the General Counsel and Respondent on
November 15, 1976, and they have been carefully consid-
ered.
Upon the entire record in this case, and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Florida corporation engaged in the
operation of a drydock, shipyard, and marine research
facility at Port Everglades, Florida. During the 12 months
preceding the hearing herein, Respondent purchased and
received materials valued in excess of $50,000 directly from
points located outside the State of Florida. Respondent
concedes, and I find, that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers, Local 675,
AFL-CIO, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The sole issue in this case is whether Respondent
discharged employee Victor Nicot on April 26, 1976, in
violation of Section 8(a)( ) and (3) of the Act.
A. The Company; Supervisory Structure
The Company has a large shipyard and docking facility
in Port Everglades, Florida, where it is engaged in ship
repair and various aspects of marine research. The facilities
include offices, an inside and an outside machine shop, a
fabrication shop, a hull department and a welding school, a
pipe shop, and docking facilities.
Matthew Spaleta, Respondent's general manager and
production manager, is the top supervisor in charge of
production. Next in line is Thomas Giochios, the machine
superintendent. Approximately 45 employees were under
Giochios' supervision at the times material hereto; these
included the inside machinists, the outside mechanics, and
all employees in the fabrication shop. Inasmuch as the
alleged discrimination occurred in the fabrication shop, it
is noted that at that time there were two fab shop foremen.
These were Ken Brockett and Mike Ruggiero, both of
whom answered to Giochios.
B. The Organizing Campaign
The Union conducted an organizational campaign
among Respondent's employees beginning in early Febru-
ary 1976.'1 A petition was first filed on February 17, but
Unless otherwise indicated, all dates refer to the year 1976.
229 NLRB No. 156
1016
TRACOR MARINE, INC.
was withdrawn on March 11 due to insufficient showing of
interest. A second petition was filed on March 29,
following which the Union lost an election held on July 16.
C. The Discharge of Victor Nicot
Having worked for the Company for an undisclosed
period of time in 1973, Nicot's latest employment with
Respondent began on January 4, 1974, and continued until
he was discharged on April 26, 1976. Throughout this
period, Nicot worked as a welder and fitter, the job being
that of a skilled craftsman.
It appears that Respondent's employees became interest-
ed in union representation largely because of their
dissatisfaction with their supervisors. Rumblings among
the employees to this effect began some time in January. In
any event, Nicot sought and obtained a meeting with John
Ploegart, then Respondent's president, in or about the
early part of January. Not in favor of a union at this time,
Nicot apprised Ploegart of the aforenoted situation with
the hope that Ploegart would take appropriate remedial
action and thereby keep the Union out. Ploegart thanked
Nicot for the report and told him that he would take care
of the matter.
Nicot's views concerning union representation changed
in February 1976, for beginning at this time he became an
active prounion adherent. Thus, during the months of
February, March, and April, Nicot spoke in favor of the
union to some 30 or 40 individual employees and during
the same period he obtained signed union authorization
cards from approximately 15 employees. Nicot testified
that he solicited the majority of these employees in
Respondent's parking lot, a lesser number at cafes where
they went for coffee or lunch. There is, however, no direct
evidence to show that Respondent became aware of these
activities.2
On April 20 and 21 (Tuesday and Wednesday), Nicot
and a helper who was assigned to work with him were
assigned the job of installing two transducers (depth
finders) on a yacht named "The Zolana." Although the job
was not entirely completed, Nicot was permitted to take off
work on Thursday and Friday.
On Monday, April 26, Foreman Michael Ruggiero came
up to Nicot in the fabrication shop at or about 8 a.m. after
he had been working for an hour and told him that he was
terminated. When Nicot asked why, Ruggiero replied only
that he was acting upon the instructions of Superintendent
Thomas Giochios. There is a sharp and critical conflict in
the testimony as to what transpired after Ruggiero told
Nicot that he was terminated. Nicot's version was as
follows: Upon being apprised as aforesaid by Ruggiero,
Nicot went to Giochios' office and asked Giochios the
reason for his termination. Giochios replied that it was
because he had done a "lousy job" on the Zolana. When
Nicot asked what was wrong with the job, Giochios stated
2 Nicot testified that, at the end of a workday in March, he drove his car
from the plant to the union hall to attend a union meeting. According to
Nicot. he was observed by Glenn Faw. a supervisor. who looked at him
from the car he (Faw) was driving just as he (Nicot) turned off the street to
enter the driveway leading to the union hall. However, as Nicot conceded.
the union hall is located behind another building and does not face the
street. Further. the union hall is located I-I /2 or 2 miles from the plant and
"everything," particularly the welding. Nicot responded
that it was not he but his helper who had done the welding.
Conceding that the welding was not "too good," Nicot
then went on to explain that the welding was of a
temporary nature, that it had to be gouged out anyway
because the ship had to be welded first in the inside and
then on the outside. Nicot added, moreover, that Foreman
Brockett had given his okay to the job before he [Nicot]
left on May 21. According to Nicot, Giochios thereupon
accepted his explanation and told him to go back to work.
Nicot returned to the fab shop and worked until about 10
a.m. At this point, Giochios came up to him and told him
that his "job was terminated anyway." Nicot asked, "What
is the reason now? Is it the same problem?" According to
Nicot, Giochios replied, "No, let's face it, because you are
in the union activity. You are making union activity." 3
Although Nicot denied that he had engaged in union
activity, the superintendent told him that he was neverthe-
less being terminated. Nicot then asked, "What about my
vacation?" After thinking for a moment, Giochios stated,
"Okay, you can take your vacation." Nicot thereupon
departed.
Concerning the foregoing, Carlos Moreno, employed by
Respondent for 4 years as a fitter helper, testified that he
walked past Nicot and Giochios on the morning of April
26 as they were talking and that he overheard Giochios tell
Nicot that he was being fired for union activities. This, he
said, was all he heard of the conversation.
On May 5, Nicot returned to the plant. Nicot testified
that he returned to the plant at this time because "I didn't
know if I was fired, if I was laid off, if I was on vacation
. . . but anyway I had to come back to pick up my tools
. . .and I was hoping that they had changed their mind."
There he eventually got to speak to Giochios who told him
he was discharged because of the Zolana incident and that
he had not changed his mind about the termination.
D. Respondent's Defense
Although Respondent asserts that Nicot's discharge was
primarily prompted by the Zolana incident, there is other
relevant evidence which must first be discussed.
That Respondent was having production problems in the
fab shop is undisputed. The problem began about the early
part of 1975 and continued at all times relevant hereto.
Thus, prior to becoming production manager in or about
the first quarter of 1975, Spaleta was the superintendent in
charge of the fab shop. Spaleta testified that these problems
began during the last 4 months while he was in charge of
the department. He described them as follows:
The problems were that Ken Brockett was getting lax
in supervision and the people were taking advantage of
it. It was starting - they were starting to wash up as
much as 20 minutes early, or they didn't start working
when the whistle blew which is at 7:00 a.m., and every
there is no evidence that Faw was aware of its location. Accordingly. I find
this testimony insufficient to support a showing of company knowledge.
3 Nicot is of Cuban extraction and is primarily a Spanish-speaking
individual. However, with but one exception when an interpreter was
utilized, Nicot testified in English. It is my experience that Nicot's manner
of speech in the quoted testimony above is that typically of a Spanish-
speaking person speaking in English.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time I took a walk in the fab shop I saw many people
standing around which meant there was no production.
The hours on the job started climbing and the budgets
were starting to be as much as 33 percent over what the
job should have been done in. I have no proof of this. I
believe we lost, the last quarter that I was in charge,
$45,000 in the fab shop.
Spaleta testified that these problems continued when
Giochios was promoted to superintendent of the fab shop,4
that at the time of Giochios' promotion he apprised him of
the problems, and that he told Giochios "there is some
people in there you have to fire because they're not
producing and you do have to look for a new foreman."
On February 27, Spaleta sent a memo to Superintendent
Giochios and to Foremen Brockett and Ruggiero again
calling attention to the production problem in the fab shop.
Referring to the shop of a competitor which he had visited,
Spaleta stated in the memo, inter alia:
When I was there, I didn't see anyone standing around.
Yet in our Fab Shop, there is always someone with their
finger . . . I would suggest a meeting with the Fab
Shop people immediately. Explain to them what is
going on, that if they want to stay busy and not have
layoffs, they better start producing.
Spaleta testified that on April 6 Giochios came to him
and said he had a problem in the fab shop. Spaleta said
that he told Giochios that he knew all about it. In giving a
rather fragmentary account of this conversation, Spaleta
testified that at one point Giochios stated that he wanted to
fire Nicot. (Giochios, on the other hand, testified that he
felt Nicot needed a timestudy - he did not testify that he
told Spaleta that he wanted to fire Nicot.) In any event,
Spaleta went on to testify that when Giochios again
mentioned the general problem in the fab shop, he told
Giochios, "The easiest proof you can get is take a time
study. Then you'll find out how things are screwed up, how
bad things are." Later that day, Spaleta called in Fred
Rapach, an estimating engineer, and instructed him (in
Spaleta's words) as follows: "Get here before 7:00 o'clock
and do a time study on the fab shop. I do have a problem.
The fab shop is standing around with their fingers up their
ass. I want to have a full evaluation of the fab shop. And
pay attention to Victor Nicot."s5
It is undisputed that on the following morning Rapach,
unbeknown to the employees in the fab shop, stationed
himself in the deckhouse of a ship at anchor about 350 or
400 yards from the fab shop.6 With the aid of binoculars,
he remained there for the entire workday engaged in the
surveillance of Nicot. Throughout the day Rapach took
notes on a minute-to-minute basis of what Nicot did. These
notes reflect that, while Nicot did perform some work, he
spent a considerable amount of his time walking or
standing around and in conversing with other employees.
In short, if these notes are to be regarded as accurate, there
4 In charge of not only the fab shop, Giochios at this time was also given
supervision of the inside machinists and outside mechanics.
I Rapach testified that, in addition to doing a timestudy on the entire fab
shop, Spaleta asked that he pay particular attention to Nicot because he
thought Nicot was goofing off and not doing the work.
can be no doubt that Nicot spent a considerable portion of
his time in nonproductive activity.
On April 12 or 15, Giochios called Nicot to his office to
speak to him about the timestudy. A lengthy conversation
ensued, with Giochios going over the timestudy point by
point. Responding to the critical report, Nicot rejoined that
his failure to produce on the day in question was at least
partially due to the fact that oxygen, needed for welding
purposes, was not available to the yard from approximately
10 a.m. to 2 p.m. He also told Giochios that he was delayed
in getting started from 7 to 8 a.m. on the morning in
question because he was not given any work assignments
by his foreman. In any event, it is undisputed that after the
conversation Giochios let Nicot return to work. According
to Giochios, Nicot promised that he would do better.
As noted earlier, it was on April 20 and 21 that Nicot and
his helper worked on the installation of two transducers on
the yacht Zolana. Nicot took off work on Thursday and
Friday, April 22 and 23, with the job not yet finished.7
Concerning this job, both Giochios and Spaleta testified
that the captain of the Zolana appeared at the yard on
Thursday, April 22, at which time he spoke to them
individually and strongly complained about the poor
workmanship performed on the installation of the trans-
ducers. It was as a result of this incident, according to
Respondent, that Nicot was discharged when he reported
on Monday. The testimony of Giochios and Spaleta
concerning the entire and immediate circumstances of
Nicot's termination is, together with all other aspects of
this case, an important consideration in deciding the
crucial credibility issue which must be made concerning
Nicot's version of the discharge conversations. According-
ly, the testimony of Giochios and Spaleta concerning the
events of April 21, 22, and 26 is related in further detail in
the succeeding section, in context with my analysis of the
entire evidence in this case.
E. Additional Facts; Analysis and Conclusions
Since Respondent asserts that Nicot was discharged for
reasons relating to his work performance, it becomes first
of all relevant to consider Nicot's work record while
employed with Respondent.
Aside from Nicot's own testimony that over the past he
had received a number of compliments for his work
performance from his supervisors, Foreman Ken Brockett
gave a highly praiseworthy account of Nicot's ability as an
employee. Thus, Brockett described Nicot's quality of work
as being "excellent," that he was very thorough with his
work, that his "job knowledge in this particular field was as
good as any I've ever run across," and that his productivity
relative to other fab shop employees was excellent.
Brockett further testified, "If the job was explained
thoroughly as far as it could be explained, it was turned
over to Victor, I could forget it." Brockett impressed me as
a credible witness. From his testimony there can be no
6 The fab shop, it should be noted, is not located inside a building, but is
located in an open-sided area which is covered by a roof extending from the
main building.
7 There is no contention that Nicot took these days off without
permission.
1018
TRACOR MARINE, INC.
doubt but that he regarded Nicot as a highly competent
employees
Beyond the foregoing, however, there is documentary
evidence to convincingly establish that Nicot was regarded
by Respondent as a highly capable and productive
employee at a point in time just a little over 5 months prior
to his discharge. Thus, on November 3, 1975, Walter
Maynard, Respondent's ocean-technology engineer, sent
an official interoffice memorandum to Bruce Carlton, a
senior company official, with copies to Spaleta, Giochios,
and a superintendent of another craft. Referring to a
particular job, Maynard stated, inter alia, as follows:
At this time I wish to convey my sincere thanks to a
complete and professional job by the following shop in
the yard . . . [electrical and pipe shops named] ....
The FAB shop under the guidance and expertise of
Ken Brockett - special mention should be made of
Victor Nicot and D. Roberson; Victorfor his work on the
framing and removal of crane and capstan and boat
checks at the beginning of the job; Robbie for some solid
hours of welding on crane base installation. [Emphasis
supplied.]
Significantly, apart from the incident of the timestudy
made on Nicot, there is no evidence that Nicot had
received any warning concerning his work performance
from any company official at any time prior thereto.
Indeed, Respondent's selection of Nicot as the sole target
of a "timestudy" (in fact he was the subject of secret
surveillance) on April 7, which curiously came during the
height of the union campaign and but a week following the
filing of the representation petition on March 29, is of itself
of a highly questionable nature. Thus, in referring to the
problems that existed in the fab shop prior to the so-called
timestudy, both Giochios and Spaleta conceded that all the
employees in the department appeared to be loafing and
not producing. Although Giochios testified that Nicot was
the employee who gave him the greatest problem, his
testimony in this regard was largely of a conclusionary
nature. Indeed, Giochios asserted that he discovered Nicot
to be a poor worker "a couple of years" before he became
superintendent. Needless to say, this is hardly in keeping
with the laudatory opinion of Nicot expressed in the
previously quoted official company memo of November 3,
1975. But returning to the surveillance of Nicot on April 7,
1976, it is noteworthy that, other than discussing the
reported results with Nicot, no further action was taken as
a result of it. However, and without relying on this as a
I I have taken into account the fact that Brockett concededly was on
friendly terms with Nicot and that he [Brockett ] was demoted from foreman
to senior craftsman shortly after Nicot's discharge. Nevertheless, Brockett
impressed me as an intelligent, truthful, and quietly sincere individual. As
indicated above. I credit his testimony.
I In partial explanation for the reported conduct on the surveillance
report. Nicot testified that the yard ran out of oxygen for a 4-hour period
that day. Respondent sharply attacks Nicot's credibility because of this
testimony. In this connection, Respondent introduced purchasing invoices
purportedly to show that, as stated in its brief. "the Company's tanks were
filled on the day at issue" (April 6). However. examination of the documents
reveals that, although the shipping date was April 7, the delivery date was
not until April 10. But even assuming that Respondent did have a supply of
oxygen on April 7. it was conceded that some malfunction of equipment
could also cause a loss of oxygen. The record reflects that, at least on April
determinative factor in this Decision, the comment might
be made that the surveillance report in question could have
been well intended as groundwork for future action. 9
Turning to the Zolana incident, I have previously related
that Spaleta and Giochios testified concerning the com-
plaint they received from the captain of the vessel
concerning the alleged poor workmanship on the installa-
tion of the transducers - a job which, it should be noted,
was then not yet completed.'0 Unfortunately, the captain,
who assertedly made the complaint and who would have
been the best witness, was not available to testify. "
Nevertheless, I do credit the testimony of Spaleta and
Giochios to the effect that they did receive a complaint
from him - but with the reservation that it was my
impression that their testimony concerning the actual
statements asserted to have been made by the captain
concerning the matter was exaggerated. Indeed, their
testimony on this point and their testimony on the related
point of their decision to terminate Nicot because of the
incident were significantly inconsistent. Some detail is here
required. Insofar as Giochios is concerned, it is preliminari-
ly noted that he was entirely confused as to dates
(including the naming of weekdays). He finally testified
that he had two conversations wherein he spoke to the
captain, the substance of neither of which is distinguishable
in his testimony, one on April 21 and a second on April 22.
In any event, as best I can interpret it, the pertinent
conversation occurred "early in the morning" (quoting
Giochios) of Thursday, April 22, at which time the captain
registered his complaint. Having finally completed this
testimony, Giochios at this point simply went on to say that
he went to see Spaleta, that he "told [Spaleta] that I
decided to terminate Mr. Victor Nicot," and that "Michael
Spaleta advised me to do it, yes sir." Spaleta's testimony,
on the other hand, does not match that of Giochios. Thus,
Spaleta testified that it was on Thursday, April 22, when
the captain came to him to complain about the Zolana job.
After listening to the complaint, he said, he promptly went
to the yacht to inspect the job. According to Spaleta, he
then returned to his office and called for Giochios.
Explaining to Giochios what had occurred, he thereupon
took Giochios to the vessel where they both inspected the
job. Spaleta testified that upon completion of their
inspection, Giochios told him, "Matthew, I'll take care of
it. I'll find out exactly who did this job and how it was done
and I'll report back to you." Continuing, Spaleta testified
that on thefollowing morning, April 23, Spaleta apprised him
that the job was performed by Nicot. Beyond this, Spaleta
did not testify concerning any conversation which he had
22, this in fact did occur due to a broken valve. More importantly. the fact is
that Giochios conceded having been told by Nicot on the day they discussed
the timestudy report (i.e.. on April 12 or 15) that a stoppage of oxygen
supply occurred on the day of the surveillance. The fact that Nicot offered
this explanation to Giochios about the same time the incident occurred is
clearly indicative that his testimony in this respect was not fabncated for the
instant hearing.
'o I do not deem it necessary to detail the technical testimony concerning
the job of installing the transducers. Whatever the involvement and
responsibility of Nicot for this job. suffice it to say that. as noted hereinafter.
I credit Nicot's testimony that when, on the morning of April 26, he (Nicot)
went to Giochios and gave him his explanation for the incident. Giochios
accepted the explanation and sent him back to work.
" Respondent's counsel having explained the captain's unavailability. I
draw no adverse inference from his failure to testify.
1019
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Giochios concerning the decision to discharge Nicot.
Accordingly, and whatever conversation may have oc-
curred between Spaleta and Giochios concerning a deci-
sion to terminate Nicot, it is clear from all the foregoing
that the testimony of Spaleta concerning the entire matter
is, as has been stated, significantly inconsistent.
I finally turn to Giochios' testimony concerning the
immediate events of Nicot's discharge on Monday, April
26. It will be recalled that Giochios testified of having
apprised Spaleta on Thursday, April 22, that he decided to
terminate Nicot. Immediately following this testimony,
Giochios testified under direct examination as follows:
Q. Did you terminate Mr. Nicot?
A. That's correct.
Q. Did you go personally to Mr. Nicot and
terminate him?
A. Through my foreman, yes.
Q. Which one was that?
A. I called Mr. Mike Ruggiero and I advised him
that I terminate Mr. Victor Nicot, and to notify him
personally. Yes, sir.
Q. When was that?
A. That was Friday and supposed to be terminated
Monday the 26th.
Q. Mr. Nicot wasn't there that Friday, was he?
A. I believe not.
Q. On that Monday the 26th, did you have any
conversation with Mr. Nicot?
A. Not direct with Mr. Nicot. I was in the fab shop.
Mr. Mike Ruggiero called me in the fabrication shop
and I went and my foreman requests, if it's possible, to
give Mr. Victor Nicot, his vacation benefits. So I talked
to Mike. I said yes, I will do it. Give it to him, so he
doesn't lose it.
Q. Was Mr. Nicot in that conversation?
A. Yes. He was standing by, two steps away.
[Emphasis supplied.]
Q. Two steps away?
A. Yeah.
Q. But the conversation was between you -
A. (Interposing) With me and Mike Ruggiero,
yeah.
Giochios denied that he had any conversation with Nicot
in his office on the day of the discharge, he denied that he
told Nicot he was being fired for union activities and
denied having knowledge that Nicot was passing out union
cards.
Upon the entire record in this case, and from my
observation of the witnesses, I credit the testimony of the
entire discharge events and conversations of Nicot over
that of Giochios. As the record will reflect, I was apprised
at the outset of the hearing of the specific credibility
problem involved in this case. I therefore took particular
notice of the witnesses as they testified. As for Nicot, I have
no hesitation in stating that in all respects he impressed me
12 Ruggiero did not testify in this proceeding. Counsel represented that
Ruggiero quit Respondent's employ 2 or 3 weeks prior to the hearing and
was on a ship en route to the Panama Canal.
i" The observation might be made that if Nicot indeed did intend to
fabricate testimony concerning the reason for his discharge, it would seem
as being an honest, sincere, and straightforward witness. I
was not similarly impressed with either Giochios or
Spaleta. Respondent has filed an excellent brief in this
case. Among other things, Respondent makes a strong
point of noting the highly coincidental appearance of
Moreno during the discharge conversation and his testimo-
ny that he overheard only that part of the conversation
where Giochios told Nicot that he was being discharged
because of union activity. I agree that this is a strange
factor in the case. I can only state that from Moreno's brief
appearance on the stand I found nothing in his demeanor
to discredit him. However, in making the credibility
findings herein, I do not rely on Moreno's testimony.
Rather, I rely solely on the testimony of Nicot and the
entire record in this case. I should add, moreover, that
there is also a ring of implausibility in Giochios' version of
the discharge. Thus, as noted above, Giochios testified
that, just after Ruggiero advised Nicot of his discharge,
Ruggiero called him to the fab shop and engaged him in a
conversation with Nicot "standing by, two steps away."
According to Giochios, there ensued only a few words
between him and Ruggiero concerning Nicot's vacation
benefits, without Nicot saying a word. I can only regard
this testimony as incredible. Recalling Nicot's discussion
with Respondent's president, his lengthy discussion with
Giochios over the surveillance report, as well as other
details in his testimony, I would deem it entirely out of
character for Nicot to placidly accept a discharge notice
from Ruggiero and to then stand idly and wordlessly by
while Ruggiero allegedly discussed the discharge with
Giochios in his presence.12
There is further testimony concerning the discharge
which is worthy of mention. The fab shop opens at 7 a.m.
Spaleta testified that on the morning of Nicot's discharge
he arrived at the plant between 8 and 8:30 a.m., at which
time, he said, "I seen Victor Nicot trying to look busy in
the fab shop." He said he thereupon called Ruggiero by a
walkie-talkie radio and asked, "Ruggiero what is Victor
Nicot doing here? He's supposed to be fired?" Ruggiero
replied, he testified, "Matthew I will find out." Testifying
further, Spaleta said that he thereupon called Giochios
over the walkie-talkie and asked "what was Victor doing
here, he's supposed to be fired." Giochios responded, he
said, by saying, "Matthew, I will take care of it right now."
Significantly, there was absolutely no mention of any of the
foregoing in the testimony of Giochios. If anything, this
testimony of Spaleta lends credence to the testimony of
Nicot, namely, that after having been first apprised of his
discharge, he went to see Giochios, that Giochios relented
and permitted him to return to work, and that it was not
until he was again at work in the fab shop when Giochios
finally came and reaffirmed the fact of his termination.13
Moreover, since Ruggiero had been instructed on the
previous Friday to discharge Nicot on Monday, it is highly
unlikely that the foreman would not follow these instruc-
tions the first thing on Monday morning - which indeed
that he simply could have testified that he was so apprised by Ruggiero at
the outset . . . or by Giochios when he first came to him in the office ...
without relating the entire chain of events concerning which I have found he
credibly testified.
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TRACOR MARINE, INC.
did happen, not only according to the testimony of Nicot,
but Giochios as well.
Finally, it will be recalled that Nicot returned to the
plant on May 5 to pick up his tools and also with the hope
that he would be returned to work. There is no need to
detail all the testimony of this event, all of which I have
considered, except to note that he was not reinstated at that
time but was told by Giochios that his discharge was based
upon the Zolana incident and poor work and that the
termination would stand.
Apart from all the foregoing, Respondent advances
certain other arguments in defense of its case, all of which I
have taken into full account. These principally consist of
the following: (1) There is no independently established
company knowledge or union animus in this case; (2)
Respondent demonstrated its neutrality by retaining
certain known union adherents who participated in a
previous organizing campaign as it also did by replacing
Foreman Brockett with one David Shiffman who told
Spaleta during his hiring interview that he belonged to the
Operating Engineers; and (3) Respondent had instructed
its supervisory employees in the "do's and don'ts" of union
campaigns. As to (1), it may be simply stated that company
knowledge and union animus are shown in the admission
of Giochios to Nicot that he was being fired for union
activity. With respect to (2), it is well established that an
employer's retention of some union employees does not
exculpate him from the charge of discrimination as to those
discharged.t4 And as to the hiring of Shiffman, suffice it to
note that Shiffman told Spaleta, after stating reasons
therefor, that he did not want to have anything to do with
the Operating Engineers anymore. Finally, with respect to
(3), it cannot be assumed that supervisors, as individuals
(perhaps during an unguarded moment or for whatever
reason), will necessarily always follow the instructions
given them concerning the do's and don'ts of a union
campaign.
In sum, and for all the reasons stated, I conclude and
find that Respondent's discharge of Nicot was in violation
of Section 8(a)(I) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operation of
Respondent's business described in section 1, above, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in conduct
violative of Section 8(a)(1) and (3) of the Act, I shall
recommend that it be ordered to cease and desist therefrom
and to take certain affirmative action designed to effectu-
4i N.L.R. B v. W. C. Nahors, d b oa W C Nabors CompaVn. 196% F.2d 272
(C.A. 5. 1952): N.L.R.B. v. Nachmnn (orp. 337 F.2d 421 (C.A. 7. 1964).
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National L abor Relations Board. the findings,
ate the policies of the Act. It having been found that
Respondent discharged Victor Nicot in violation of Section
8(aX)(1) and (3) of the Act, I shall recommend that
Respondent be ordered to offer him full and complete
reinstatement to his former position or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings he may have
suffered from the date of his discharge to the date of
Respondent's offer of reinstatement. Backpay shall be
computed in accordance with the formula prescribed in F.
W. Woolworth Company, 90 NLRB 289 (1950), with interest
thereon computed in the manner and amount prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
In view of the nature of the unfair labor practices herein
found, it will be recommended that Respondent be ordered
to cease and desist from in any other manner infringing
upon the rights guaranteed employees in Section 7 of the
Act.
CONCLUSIONS OF LAW
1. Tracor Marine, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Victor Nicot for engaging in union
activities, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
On the basis of the above findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER '5
The Respondent, Tracor Marine, Inc., Port Everglades,
Florida, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees because of their union
activities.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Victor Nicot immediate reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, and make him whole for any loss of
pay he may have suffered by reason of the discrimination
against him in the manner set forth in the section of this
Decision entitled "The Remedy."
conclusions, and the recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
1021
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its facilities in Port Everglades, Florida, copies
of the attached notice marked "Appendix." 16 Copies of
said notice, on forms to be provided by the Regional
Director for Region 12, shall be posted by it immediately
I' In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
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