Maryland Shipbuilding and Dry Dock Co.

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Maryland Shipbuilding and Dry Dock Co. and Leon Miller. Case 5-CA-12065 June 5, 1981 DECISION AND ORDER On January 22, 1981, Administrative Law Judge Arline Pacht issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Maryland Ship- building and Dry Dock Co., Baltimore, Maryland, 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing her find- ings. The Administrative Law Judge's Decision contains inadvertent errors: The record indicates Gil Abramson, Esq., is counsel for the Respondent, not for the Charging Party as set forth in the caption. The correct cita- tion to Interboro Contractors, Inc.. is 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967). We note that the Administrative Law Judge cited NL.R.B. v. Wash- ington Aluminum Co., 370 US. 9 (1962), for the proposition that, even when an employee's interpretation of the contract is wrong, his efforts in enforcing the agreement are nonetheless protected We do not rely on Washington Aluminum for this proposition and instead rely solely on Firch Baking Company, 232 NLRB 772 (1977). The Administrative Law Judge found that as a matter of contract con- struction the term "isolated spaces" in art. XIX of the collective-bargain- ing agreement does not refer solely to the tanks identified in that article. We do not adopt this finding as it is unnecessary to the resolution of this case. As the Administrative Law Judge properly concluded, the correct- ness of Miller's contractual interpretation notwithstanding, his efforts in enforcing the agreement are protected. DECISION STATEMENT OF THE CASE ARLINE PACHT, Administrative Law Judge: Upon a charge filed by Leon Miller, the General Counsel of the National Labor Relations Board (hereinafter the Board) issued a complaint on May 9, 1980, alleging that Re- spondent suspended Miller for protesting an alleged in- fraction of the collective-bargaining agreement and thereby violated Section 8(a)(l) of the National Labor 256 NLRB No. 69 Relations Act, as amended (hereinafter the Act). Re- spondent filed a timely answer denying the commission of the alleged unfair labor practice. A hearing was held in this proceeding on November 12 and 13, 1980, in Bal- timore, Maryland, at which time all parties were given full opportunity to participate, to introduce relevant evi- dence, and to examine witnesses. Subsequent to the hear- ing, the General Counsel and Respondent submitted briefs which have been carefully considered. Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is engaged in the construction and repair of oceangoing vessels at its Baltimore, Maryland, facility. During the preceding year, a representative period, Re- spondent purchased and received products valued in excess of $50,000 from points directly outside the State of Maryland. Accordingly, I find that Respondent is, and at all times material herein has been, an employer engaged in and af- fecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE AL.EGED UNFAIR LABOR PRACTICES A. The Alleged Protected Activity The Charging Party, Leon Miller, has been employed by Respondent as a painter since 1971, and for the past several years has served as the 12 p.m. shift shop steward for Local 31, Industrial Union of Marine and Shipbuild- ing Workers. At midnight on March 25, 1980,' Miller reported to the paint shop at Respondent's yard where he and four other painters were assigned by the crew leader, Norman Benjamin, to perform needlegunning 2 work on foam tanks, more precisely designated aircraft firefighting foam systems, on a navy vessel, U.S.S. Raleigh. After gathering his equipment, Miller and his fellow workers boarded the ship at approximately 12:20 a.m., where they waited for Benjamin to direct them to the particular tanks on which they would be working. 3 Some 20 minutes later, Benjamin rejoined the crew and assigned Miller to the forward port tank; coworker Albertus Martin was directed to the port tank, and the remaining painters were assigned to the forward star- board tank. Upon receiving his assignment, Miller told Benjamin that he was acting improperly by failing to Unless otherwise specified, all relevant events occurred in 1980. 2 Needlegunning refers to the process of removing paint from surfaces with a pneumatic blank hammer, prior to the application of fresh paint 3 There were four such tanks used for firefighting purposes, located approximately 100 feet apart on the forward and aft side of the ship's quarterdeck and 80 feet apart from port to starboard. Each tank, cylindri- cal in shape, was approximately 10 feet long, 3-1/2 to 4 feet deep and 3 feet wide and was affixed to the wall of a passageway approximately 5 feet above the deck floor. The tanks were entered through a central cov- ered hole. MARYLAND SHIPBUILDING AND DRY DOCK CO. 411 assign two men to each foam tank.4 In raising this objec- tion, Miller was relying on his understanding that the collective-bargaining agreement provided that, as a safety precaution, two men were to be stationed together when their work was in an isolated area. 5 Benjamin re- plied before departing that Miller should take his com- plaint to Respondent's general foreman, Don Huey, in the morning. Established practice required that when complaining about a possible safety infraction, the shop steward ini- tially was to discuss the matter with the crew leader. If the complaint was not resolved at that level, the next step was to consult with the Union's safety committee- man, and then with the Company's chief security officer on duty. In accordance with this procedure, Miller asked a passing employee to have the Union's safetyman, Howard Sprouse, contact him. Miller emerged from his tank when Sprouse arrived and asked him to terminate the job because of the alleged safety violation. Sprouse, replying that he had no authority to call a halt to the work, suggested that they next contact Lieutenant Bryan Smith, the plant security officer. Miller then called Smith. On receiving Miller's phone call, Smith, accompanied by Leo Egan, a company fireman, met with Miller and Sprouse on the ship shortly before 2 a.m. After Miller presented his complaint, specifically referring to article XIX of the collective-bargaining agreement, Smith paged Benjamin. While waiting for Benjamin, Smith, Miller, and Sprouse inspected the other foam tanks, finding only two of the three painters assigned to the forward star- board tank working there and one man working on each of the other two rear tanks. Albertus Martin emerged from the rear port tank when one of the group knocked, was present during the ensuing discussion, and returned to work some 10 minutes later after the matter had been resolved. Benjamin arrived 5 minutes after Smith's call, together with the production supervisor, Charles Cox. When Cox asserted that foam tanks were not within the scope of ar- ticle XIX of the collective-bargaining agreement, Sprouse commented that the tanks were in an isolated place considering the small number of personnel working on the vessel during the midnight shift. Smith then asked Benjamin whether he had directed any member of the crew to patrol the tanks. Benjamin responded that he had. To quickly resolve the dispute, Smith suggested that Benjamin circulate around the foam tanks every 15 min- utes. Instead, Benjamin proposed that Reginald Holden, a painter who arrived late to work, stand watch outside the tank to which Miller was assigned. Benjamin also re- moved two painters from another assignment on the ves- 4 Benjamin denied that Miller protested at this time. s Art. XIX. the relevant provision of the collective-bargaining agree- ment states: Employees will not be required to work alone in remote or isolated spaces such as double bottoms, forepeak tanks, copper dams and cargo tanks of tankers. . . . An employee will not be considered as working alone when there is another employee assigned to work with him who is working on the tank top. sel's well deck and positioned them outside the two aft tanks. Holden remained outside Miller's tank and testified that with the exception of a few breaks, he heard Miller needlegunning consistently for the balance of the shift. Although Holden was not aware of how much needle- gunning had been accomplished on this tank prior to the start of the midnight shift, when he glanced into the tank before leaving the vessel that morning, it appeared to him that half of the tank had been completed. Benjamin stated, however, that he passed Miller's tank six or seven times during that shift and that, on four or five of these occasions, he did not hear any needlegun- ning noise. When he looked into the tank during the 4 a.m. break, he found that Miller had completed only 1 square foot.6 Although Benjamin had authority to alter assignments, he explained that he failed to substitute Holden or any other painter for Miller at this time, be- lieving he was obliged to keep Miller inside the tank pur- suant to the agreement reached earlier with Smith and Cox. When he checked the foam tank at the end of the shift, Benjamin maintained that Miller had prepared no more than a 3-square-foot area. Several of Respondent's witnesses testified that a diligent worker could be expect- ed to needlegun 15 to 20 square feet of the 150 to 200 square feet comprising the interior surface of such tanks. At the conclusion of the midnight shift, Smith and Benjamin submitted written reports of this incident to Raymond Neall, assistant foreman for the paint and labor department. Benjamin began discussing the situation with Neall and Miller who attempted to present his version of the incident. With Smith, Howard Sprouse, and James Jones, the day-shift steward, also present in Neall's office, an argument ensued as to whether Miller was cor- rect in protesting the alleged safety infraction. The argu- ment terminated with Neall ordering Miller out of his office. Shortly thereafter at Miller's request, Jones boarded the Raleigh with Miller to observe the foam tank in ques- tion. He noted that approximately half of the needlegun work in the tank had been completed. B. The Suspension To familiarize himself with the foam tanks on the Ra- leigh, Neall examined several of the tanks later that same day. Then, after reading Benjamin's report and review- ing Miller's personnel file which contained two prior warnings, 7 Neall decided that a 3-day suspension was warranted for this latest offense. He prepared a written notice charging Miller with having failed to carry out his job assignment, wasting time during working hours, and interfering with the supervisor's carrying out his assign- ment. Although he did not designate the violations by number, each one related to a work rule designated in 6 Benjamin testified that prior to the start of the shift, he looked into the forward starboard foam tank and thus was in a position to know how much additional needlegunning could be attributed to Miller's efforts 7 Miller received a warning on November 20. 1979, for failing to wear safety glasses, and another for leaviig work early No disciplinary action beyond the written warnings was imposed on either occasion 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company's employee handbook.8 Neall explained that by "failing to carry out job assignment," he was re- ferring to Miller's wasting 2 hours before beginning to work on the tank; and that by causing Albertus Martin to abandon his job temporarily, Miller was wasting time and interfering with Benjamin's ability to carry out his supervisory functions. Miller received the written notice prior to the start of his shift on March 27. Later that day he again attempted, without success, to discuss the matter with Neall who dismissed him by stating that he was relying on Benja- min's assessment of the controversy. On the same day, Miller filed and then withdrew written grievances pro- testing both the alleged safety violation and also what he considered to be management's harassment of him for complaining about the matter.9 In his written response to Miller's protest, Neall con- tended that there was no safety violation since the tanks were consistently surveyed by the paint department su- pervisor and other craftsmen working in the area. At the hearing, Neall stated that 40 to 50 employees were work- ing at various locations throughout the Raleigh during the midnight shift while some 400 ordinarily work on the vessel during the daytime. Benjamin estimated that on the March 25 midnight shift as many as 50 to 60 crafts- men were working in the engine room, which is on the deck below the foam tanks. Access to the engine room is by way of a ladder, descending from an entrance 10 feet further down the passageway in which the tank was situ- ated. Ill. DISCUSSION AND CONCLUSIONS A. Issues The General Counsel contends that the Charging Party was suspended because he complained about what he considered to be a violation of the contractual safety provisions. Respondent counters that Miller invoked the safety clause of the contract to camouflage his desire to evade a difficult work assignment; that the foam tanks did not come within the meaning of article XIX of the operative agreement, and that Miller's protest did not constitute protected concerted activity. Respondent fur- ther submits that, even apart from Miller's complaint, the suspension was warranted by Miller's failure to carry out his assigned tasks. Based on a consideration of the record as a whole, I find merit in the General Counsel's posi- tion. B. Miller's Protest Was Protected Concerted Activity A resolution of this dispute starts with the threshold determination that Miller's protest was based on his good-faith belief that the assignment of painters to work alone within foam tanks during the midnight shift was A Neall referred to company rule 8, "Refusal to or failure to do job assignment"; and rule 11, "wasting time or loitering during working hours, coercing or interfering with employees or supervision at any time." The handbook states that commission of these violations may con- stitute grounds for disciplinary action ranging from reprimands through discharge. 9 The collective-bargaining agreement contains no mandatory require- ment that complaints be processed through the grievance procedure potentially unsafe and violated article XIX of the collec- tive-bargaining agreement. Respondent argues that "isolated spaces" is limited ex- clusively to the tanks enumerated in article XIX and that Miller, as an experienced shop steward, knew this. As a matter of contract construction, however, the use of the words "such as" in the relevant clause makes it plain that isolated spaces does not refer solely to the identified tanks. Further, although Neall and Huey testified that it was customary practice to assign only one painter to a foam tank, they apparently were referring to day-shift assign- ment practices, for the midnight shift employees had not within the recent past worked on foam tanks.' t More- over, since Miller's last experience with such tanks oc- curred some 5 years earlier, it cannot be assumed that he was aware of current practice. Thus, as Sprouse suggest- ed, and as Neall and Huey conceded, what is an isolated place can vary depending on such factors as the time of day, the number of men in the immediate area, and the surrounding noise levels. The evidence presented sup- ports the conclusion that while the foam tanks ought not to be regarded as isolated places during the day shifts when some 400 employees are working on the Raleigh, the same tanks may indeed be isolated places during the midnight shift when only 50 employees were working out the entire ship. Benjamin at first claimed that there were 50 to 60 dif- ferent craftsmen working in the engine room alone, the door to which was approximately 10 feet away from the foam tank." Even assuming that this exaggerated esti- mate is accurate, it does not follow that any of those workers were in a position to attend to a painter within the foam tank. Benjamin admitted that the engine room was a floor below the deck on which the foam tank was situated, and the employees working there were using noisy pneumatic equipment. Further, although several of Respondent's witnesses suggested that the forward port foam tank was located on a passageway frequently trav- eled in the daytime, not one person testified with certi- tude or from direct observation that passers-by in fact traversed that corridor during the midnight shift on March 25.1 2 Knowing that a relatively small number of employees were distributed throughout the Raleigh during the mid- night shift and that few of them might be close enough to a painter within the cramped confines of the foam 10 Huey testified that past repairs made to another naval vessel did not involve needlegunning foam tanks by the midnight shift. In addition, daily assignment sheets which Respondent introduced into evidence showed that needlegunning on the Raleigh 's foam tanks was done by day- shift crews. In other respects, I find these records inaccurate and unreli- able. For example, Huey explained that the number 589 was assigned to work performed on the two forward tanks while 588 was the number al- loted to the two starboard tanks Yet, the daily assignment sheets showed that only one of these numbers frequently was used to refer to all four tanks. II Benjamin subsequently revised his estimate and testified that there were perhaps 50 to 60 employees working throughout the Raleigh. His latter figure is, of course, consistent with the count offered by Neall. 1 Smith mentioned that several sailors were nearby during his discus- sion with Miller, Sprouse, and Benjamin on board the ship, but conceded that they had been attracted by the argument and were not regularly sta- tioned in positions which permitted their observation of Miller's tank. MARYLAND SHIPBUILDING AND DRY DOCK CO. 413 tank to assist him if necessary, it was not unreasonable for Miller to perceive the foam tanks as unsafe, isolated spaces. 13 If, as Respondent suggests, Miller was engaged in an elaborate ruse to avoid working, he chose an unlikely means to accomplish that end. The easiest course for a malingerer would be to feign illness or work slowly without attracting attention. Instead, Miller followed es- tablished procedures which entailed contacting a succes- sion of Respondent's agents, with no assurance that the matter would be resolved in his favor. Respondent argues that Miller ignored proper com- plaint procedures and, in support of this, points out that he failed to mention the contractual violation to Benja- min at the start of the shift. However, Benjamin's denial that Miller broached the matter to him was unconvincing and contradicted both by Martin's testimony and by Smith's report which stated that when he was first tele- phoned, Miller advised him the problem involved a dis- pute with Benjamin. Clearly, there would have been no such dispute reported if Miller had not previously raised the contractual violation with the crew leader. Respond- ent further points out that it was Sprouse not Miller who suggested contacting Smith. However, Miller responded immediately to Sprouse's suggestion by telephoning Smith and informing him of the problem. Miller's adher- ence to proper procedures in pursuing the complaint is a telling demonstration that his concern about the foam tanks was genuine. Further, the manner in which a number of Respond- ent's agents initially reacted to Miller's protest suggests that they did not regard it as frivolous. Thus, although Smith did not consider the tank to be isolated and asked Benjamin to patrol the area to bring an end to the con- troversy, neither he nor Cox treated the complaint as so farfetched as to be undeserving of any attention. More- over, the record reveals that at the meeting in Neall's office different views were expressed but, for the most part, the argument went to the merits of Miller's com- plaint, not whether it was or was not made in good faith. In the final analysis, whether Miller was correct in his interpretation of the contract is immaterial for even when an employee's construction of a contract is wrong, his efforts in enforcing the agreement are nonetheless protected. N.L.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9, 16 (1962); Firch Baking Company, 232 NLRB 772 (1977). Miller may have acted alone, but the complaint was not registered solely in his own behalf for Martin was present during the discussion of the problem and was af- I3 Respondent argues that Gateway Coal Co. v. United Coal W'orker of America, el a., 414 U.S. 368 (1974), controls in the instant case The Su- preme Court held in Gateway that a strike protesting an allegedly unsafe working condition in violation of a no-strike clause is unprotected unless it is objectively determined that there was an abnormally dangerous working condition within the meaning of Section 502 of the Act Thai precedent is inapplicable to the circumstances of the present case since unlike the coalminers in Gateway, Miller was not engaged in a strike nor did he ignore mandatory grievance mechanisms. Rather, he merely tem- porarily halted his work in an effort to resolve a dispute peacefully through resort to established complaint procedures. Therefore, it is un- necessary to decide whether the foam tanks were, by objective standards. abnormally dangerous places, in order to find that Miller held a genuine belief that they were unsafe. fected by its resolution as were the painters in the other foam tanks. 4 In the absence of any evidence that Martin or other crew members disavowed Miller's actions, their assent to Miller's representation will be implied. Alleluia Cushion Co., Inc., 221 NLRB 999, 1000 (1975). Even if Miller had acted alone, it is firmly settled that individual efforts to obtain compliance with a collective- bargaining agreement will be considered as serving a concerted purpose in the interest of all employees and, therefore, within the protections of the Act. N.L.R.B. v. Interboro Contractors, Inc., 217 NLRB 278, 279 (1975), enfd. 388 F.2d 495 (2d Cir. 1967); Key City Mechanical Contractors, Inc., 227 NLRB 1884, 1857 (1977); Roadway Express, Inc., 217 NLRB 278, 279 (1975), enfd. 532 F.2d 751 (4th Cir. 1976). This is particularly true where, as here, Miller was acting in his capacity as shop steward, was following proper procedures, and had expressly in- voked the collective-bargaining agreement as the source of a claimed right. There can be little doubt that Miller's complaint, and the time he spent in pursuing it, was a significant factor in Respondent's decision to suspend him. Thus, Neall candidly explained that one of the primary reasons moti- vating his decision to discipline Miller was the fact that he was unproductive for the first 2 hours of his shift and also interfered with Martin's performance during this time. However, since Miller devoted most of this time to resolving his complaint, management was in fact penaliz- ing him for engaging in protected concerted activity. C. Respondent's Defense Respondent argues that even assuming Miller's protest was protected activity, it would have disciplined him in any event for unrelated dilatory and unproductive con- duct. In this regard, Respondent claims that Miller wasted time at the outset of his shift. However, it was uncontro- verted that Benjamin did not direct the painters to spe- cific foam tanks until 12:40 a.m. Therefore, the loss of 40 minutes working time cannot be attributed to Miller's al- leged malingering. Further, Sprouse testified that when he boarded the Raleigh he found Miller emerging from his foam tank, thereby indicating that Miller had com- menced his job. Respondent also claims, in reliance on Benjamin's report and testimony at the hearing, that even after the dispute about the safety matter was resolved Miller con- tinued to engage in dilatory behavior, needlegunning no more than 3 square feet during the balance of the shift. Benjamin's assessment of Miller's productivity is con- tradicted not only by Miller, but by Holden and Jones, each of whom estimated that roughly half of the foam tank was completed by the end of the shift. Although neither Holden nor Jones knew precisely how much needlegunning had been completed at the outset of the shift, nevertheless it was possible for them to gauge how "1 Respondent charged Miller with impeding the progress of the job by summoning Martin from his foam tank Whether it was in fact Miller who knocked on Martin's tank is irrelevanl for, even assuming he did summon Martin to the discussion, that must be regarded as an extension of his oncerted actiity, as was Martin's attendance 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD much work could be attributed to Miller since his work was on the lower section of the tank whereas the painter on the previous shift had worked on the top portion. Moreover, Holden testified credibly that he heard Mill- er's needlegun operating consistently throughout the shift. 5 1 find Jones' observations equally trustworthy for it is unlikely that Miller would have asked him to inspect the tank unless he was confident that Jones would regard his progress as satisfactory. 16 Benjamin's assertion that he failed to substitute another painter to needlegun the foam tank when he found that Miller had needlegunned only 1 square foot by 4 a.m. is totally unconvincing. The essence of his agreement with Smith, Cox, and Miller was to have someone stationed outside the foam tank. Holden was assigned to this task at Benjamin's suggestion and he clearly had the authority to alter the arrangement. If Miller was malingering, as Benjamin contended, then Miller should have been more than willing to exchange places and assume Holden's less taxing job. There was, of course, ample reason why Ben- jamin might wish to minimize the amount of work which Miller performed. There apparently was an ongoing con- flict between Miller and Benjamin as Smith mentioned in his report. Further, Benjamin's remarks during the hear- ing that Miller was "always getting into something," that he was an instigator who was "always stirring the men up" reveals that he regarded Miller as a thorn in his side and a troublemaker who continually challenged his au- thority. It takes little insight to recognize that the crew leader's irritation stemmed from Miller's interfering with his work schedule and questioning his judgment before many of Benjamin's superiors. Further, no corroboration of Benjamin's estimate that Miller had needlegunned only 3 square feet was offered. Respondent failed to produce as a witness the crew leader for the 4:30 p.m. shift who, according to Benja- min, was with him when he inspected the foam tanks prior to the start of the midnight shift and therefore was in a position to verify the amount of work that had been accomplished by that time. Neall testified that he exam- ined several foam tanks but he had not seen them prior to the midnight shift, and never specifically stated that among the tanks he inspected was the one on the for- ward port side. In fact, when Neall explained the causes for Miller's suspension as set forth in the disciplinary notice, he focused exclusively on the painter's lack of productivity during the first 2 hours, not his failure to perform during the balance of the shift. Neall also maintained that his review of Miller's prior disciplinary warnings figured into his decision to impose a 3-day suspension. However, there was no reference to Is Although apparently made nervous by his appearance in the court- room, I found Holden to be an essentially honest witness who, as a re- cently retired worker, had no particular motive to slant his testimony He may have forgotten who worked with him, but he, and not Respondent, correctly recalled that he was assigned to needlegun foam tanks on the Raleigh several days after the incident i question. 16 Jones also impressed me as a candid witness who did not permit his status as a shop steward to interfere with his good judgment. His reason- ableness was demonstrated by the comment made in Neall's office that, since the controversy had ended, the parties should put it behind them. This strikes me as a sensible position and not a cavalier statement as Re- spondent suggests. these warnings in the disciplinary notice of March 27, suggesting that if they played any part in Neall's deci- sion, it had to do primarily with the length of the suspen- sion. From all of the above, I conclude that Respondent has failed to sustain its burden of proving that it would have disciplined Miller even had he not protested a perceived safety violation. See Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980). To the contrary, I find that Miller's protest was at the root of his 3-day sus- pension. It follows that, by suspending Leon Miller from March 27 to 31, Respondent violated Section 8(a)(l) of the Act. CONCLUSIONS OF LAW 1. Maryland Shipbuilding and Dry Dock Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By issuing a disciplinary notice to and suspending Leon Miller because he engaged in protected concerted activity, Respondent has interfered with, restrained, or coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and is thereby engaged in an unfair labor practice within the meaning of Section 8(a)(l) of the Act. 3. The aforesaid conduct is an unfair labor practice within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent violated Secton 8(a)(l) of the Act by issuing a disciplinary notice to and sus- pending employee Leon Miller because he engaged in protected concerted activity, Respondent shall be or- dered to make Miller whole for any loss of earnings suf- fered by reason of the unlawful action taken against him by payment of a sum of money equal to what he would have earned during the period of his suspension from March 27 through March 31, 1980, less net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Respondent shall also be required to remove any recordation of the sus- pension notice from Miller's personnel file and deliver such entries to him. See Certain-Teed Insulation Compa- ny, et al., 251 NLRB 1561 (1980). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' 7 The Respondent, Maryland Shipbuilding and Dry Dock Company, Baltimore, Maryland, its officers, agents, successors, and assigns, shall: '7 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings conclusions, and recommended Order herein shall, as provided in Sec 12.48 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 fr all purposcs MARYLAND SHIPBUILDING AND DRY DOCK CO. 415 1. Cease and desist from: (a) Interfering with, restraining, or coercing employees by warning, suspending, or in any other manner discrimi- nating against employees for protesting suspected safety violations or engaging otherwise in concerted protected activity. (b) In any like or related manner, interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Make whole Leon Miller for any loss of earnings he may have incurred by reason of the unlawful action against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Expunge any recordation of the suspension notice issued to Leon Miller on March 27, 1980, and deliver such documentation to him. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its premises in Baltimore, Maryland, copies of the attached notice marked "Appendix."' 8 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's l' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." representative, shall be posted by Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to ensure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAl. LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with, restrain, or coerce employees by warning or suspending them, or dis- criminating against them in any other manner for protesting suspected safety violations or for engag- ing in otherwise concerted protected activities. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the National Labor Relations Act. WE WILI. make Leon Miller whole for any loss of earnings he has incurred with interest, because of the unlawful suspension we imposed on him MARYI AND SHIPBUILDING AND DRY DOCK CO.