Ingalls Shipbuilding

Ingalls Shipbuilding, Division of Litton Systems, Inc. and William E. Weninegar. Case 15-CA-6753 May 21, 1979 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On November 21, 1978, Administrative Law Judge Michael O. Miller issued the attached Decision in this proceeding. Thereafter, the General Counsel and Re- spondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recommended Or- der. 2 We agree with the Administrative Law Judge's finding, inter alia, that Respondent, through Clark, its electrical shop foreman, violated Section 8(a)(1) of the Act by telling its employees in December 1977 that they were being transferred because Union Stew- ard Hunter had filed a grievance. Contrary to the Ad- ministrative Law Judge, however, we also find that in November 1977 Respondent, through Bodden, its su- perintendent in the electrical department, and Clark, also threatened to transfer employees for having filed a grievance in violation of Section 8(a)(1). Respondent is engaged in the building of ships for the United States Navy and other customers in Pas- cagoula, Mississippi. At times material herein Re- spondent operated on a four-shift basis. The employ- ees involved herein worked on the fourth shift in the electrical department and were represented by the In- ternational Brotherhood of Electrical Workers (IBEW). On November 14, 1977, Union Steward Hunter filed a grievance on behalf of a fellow employee in the electrical department on the fourth shift which al- leged that one employee on that shift, Garlotte, was I Respondent has excepted to certain credibility findings made by the Ad- ministrative 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 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 The General Counsel has excepted to the Administrative Law Judge's recommended remedy insofar as it provides that interest on backpa be computed at a rate other than the 9 percent requested by the General Coun- sel. We find no merit in that exception. See Florida Steel Corporation, 231 NLRB 651 (1977). INGALLS SHIPBUILDING being shown favoritism by some supervisors. This was the first grievance ever filed involving employees on the fourth shift. When IBEW representatives met with Respondent's officials on the following day to discuss this grievance, Clark remarked to the Union's chief steward "You're going to have to do something about this boy [Hunter], ever since he's gotten that [union steward's] badge, he's been nothing but trou- ble. I understand that he's circulated petitions against the supervisor." Hunter, who was present, denied that he had circulated such petitions. Clark told him to forget the matter and then stated to the chief steward, "I did this boy a favor getting him on this shift, and this is how he repays me." The grievance concerning Garlotte was then discussed. The next day the parties met again and resolved the grievance. During the course of the meeting, Bod- den stated that the employees would have to get along and that, "if there was any more trouble" from the employees on the fourth shift, he would transfer all of the employees off that shift. On November 17, Respondent's officials and the Union's chief steward met with the fourth shift employees. Clark told the employees of the resolution of the grievance and re- peated Bodden's threat to transfer them if there was any more trouble. The Union's chief steward, in reply to an employee's question, stated that the employees could still file legal grievances, and that they should bring their problems to either Hunter or himself. Clark interjected that if employees intended to file a grievance they should be willing to sign it. The Administrative Law Judge concluded that Bodden's statement, repeated by Clark, that the em- ployees would be transferred in the event that there was "any more trouble" did not constitute a threat to retaliate against employees if they utilized the griev- ance procedure. Although finding that Clark's re- marks to the Union's chief steward concerning Hunt- er evidenced some animus towards employees who filed grievances, the Administrative Law Judge never- theless found that the above statements of Bodden, as repeated by Clark, did not rise to the level of a viola- tion of the Act because it was clear that Bodden was concerned about dissension among employees on the fourth shift, and that Bodden's statement was ad- dressed to that dissension. We disagree with the Ad- ministrative Law Judge's conclusion for the following reasons. It is clear from the above facts that Bodden's re- mark that employees on the fourth shift would be transferred "if there was any more trouble" was made in the context of and during the discussion of a griev- ance. Furthermore, as found by the Administrative Law Judge, Bodden, just prior to making that re- mark, had expressed some animus toward those who 242 NLRB No. 61 417 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would invoke the grievance procedure. Further, when Clark repeated Bodden's statement to the employees on the fourth shift, he did so in the context of inform- ing them as to the disposition of the grievance. We also find it significant that the subject matter of the grievance concerned alleged favored treatment by a supervisor of one employee over another, i.e., a mat- ter of employee dissension. In this regard, we note that although the Administrative Law Judge found that Bodden's statement was made out of concern about dissension among the employers, the only evi- dence of dissension among employees on the fourth shift from August to October 1977 was that which culminated in the grievance involving Garlotte. Fi- nally, we note the closeness in timing and the similari- ties between Bodden's and Clark's statements in No- vember and their subsequent remarks in December which included an unlawful statement to the fourth shift employees attributing their transfer to the filing of another grievance by Hunter.3 In view of the foregoing, particularly the timing and context of Bodden's November statement, as re- peated by Clark, and the expression of animus toward those who filed grievances, we find that such conduct constituted a threat of reprisal against employees who used the grievance procedure, and that such conduct reasonably tended to interfere with, restrain, or co- erce employees in the exercise of their Section 7 rights. Accordingly, we find that Respondent thereby has additionally violated Section 8(a)(1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Ingalls Shipbuilding, Division of Litton Systems, Inc., Pascagoula, Missis- sippi, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. As more fully set forth in the Administrative Law Judge's Decision, in December, on an occasion when Hunter refused to sign a memorandum concerned with safety. Clark approached Hunter in a hostile manner and reiterated the fact that although he had done a favor for Hunter the latter had done nothing but cause trouble for Clark. Hunter filed a grievance pro- testing Clark's conduct. When this grievance was presented to Bodden, he remarked that if they were still having problems he would move or do away with the shift as he had previously threatened. On December 23, at a meeting of the fourth shift employees, Clark informed them of Bodden's decision to transfer them in January 1978, and that the transfer was because of Hunter's grievance. The fourth shift was eliminated in January, and all of the employ- ees were transferred to other shifts. The Administrative Law Judge found that Clark's statement on December 23 and the transfer of the employees were unlawful. DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge: Upon a charge filed on January 16, 1978, by William E. Weninegar, an individual, a complaint was issued by the Acting Re- gional Director for Region 15 of the National Labor Rela- tions Board on February 27, 1978, and a hearing was held before me in Pascagoula, Mississippi, on June 14, 1978. At issue was whether Ingalls Shipbuilding, Division of Litton Systems, Inc., herein Respondent, violated Section 8(a)(1) and (3) of the National Labor Relations Act, herein the Act, by threatening to transfer and transferring employ- ees from a preferred shift to other shifts because of their grievance filing activities and by constructively causing the discharges of two employees through such transfers. Re- spondent's timely filed answer denied the substantive alle- gations of the complaint. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and to cross-exam- ine witnesses, and to argue orally. Briefs, which have been carefully considered, were filed by the General Counsel and Respondent. Upon the entire record,' including my careful observa- tion of the witnesses and their demeanor, I make the follow- ing: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS AND THE UNION'S LABOR ORGANIZATION STAUS -( ON( LUSIONS OF LAW Respondent is engaged in the building of ships for the United States Navy and other customers at its facility lo- cated on the east and west banks of the Pascagoula River in Pascagoula. Mississippi. Jurisdiction is not in issue. The complaint alleged, Respondent admitted, and I find and conclude that Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. The complaint alleged, Respondent admitted, and I find and conclude that the International Brotherhood of Electri- cal Workers, Local 733, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRA(II(ES A. Background The Union is the recognized and certified collective-bar- gaining representative of Respondent's production and maintenance electrical employees at the Pascagoula, Missis- sippi. shipyard. A collective-bargaining agreement covering said employees was in effect at all times material herein. That agreement included, at article 16, a detailed four-step grievance procedure culminating in arbitration. During the period involved in this case. November 1977 until approximately January 9, 1978, Respondent operated I The General Counsel's unopposed motion to correct the record is granted. 418 INGALLS SHIPBUILDING on a four-shift basis. The employees involved herein worked on the fourth shift, from 12:15 a.m. to 7 a.m., in department 35. the electrical department, on the west bank. Although the employees on this shift worked only 6-1/2 hours, they were paid for a full 8 hours. Employees on the other shifts were paid only for the hours worked. There were approximately 17 employees working in this depart- ment on the fourth shift at the relevant times. B. The "Garlotte" Grievance On approximately November 14. 1978. union steward Richard Hunter, an employee of department 35 on the fourth shift, filed a grievance instigated by a fellow em- ployee. That grievance protested that employee Bonnie Garlotte was being shown favoritism by supervisors C. D. Moyers and Harry Lowe in that Garlotte was not being required to carry out the garbage, an undesirable task which was supposed to be shared among all the employees. The grievance also protested that Garlotte left her work area prior to the close of the shift. On approximately November 15, 1977. Hunter met in regard to the "Garlotte" grievance with J. W. Clark, the electric shop foreman, Moyers, and H. K. Poole, the Union's chief steward, in Clark's office.2 Upon entering the office. Clark told Poole "You're going to have to do some- thing about this boy (Hunter). ever since he's gotten that badge, he's been nothing but trouble. I understand he's cir- culated petitions against the supervisor." Hunter denied that he had gotten up any petition against the supervisor and questioned who had made such a statement. Clark told him to forget it and then told Poole "I did this boy a favor getting him on this shift, and this is how he repays me."' The favoritism complaint was then discussed. Various em- ployees were called in and questioned about it. On the following day Hunter. Clark, Moyers. Poole, and C. F. Grimes, the Union's business manager, met with R. L. Bodden, superintendent of the electrical department and Clark's immediate supervisor, in Bodden's office. A resolu- tion of the grievance was worked out. The bickering among and between the employees and the supervisors was dis- cussed. Bodden stated that the employees would have to get along and that if there was any more trouble out of that shift, he would transfer all of the employees from it.' On approximately November 17. 1977. Clark. Moyers. and Poole met with the fourth-shift crew. Clark told them of the resolution of the grievance and repeated Bodden's threat to transfer them if there was any more trouble from them. One of the employees asked whether that meant that they were precluded from filing grievances. Poole replied that they could still file legal grievances and should bring their problems to either Hunter or himself. Clark interjected that if they were going to file a grievance they should be willing to sign it. 2 Clark was Moyer's immediate supervisor. Hunter had, in fact. been transferred to the fourth shilt or his own convenience by Clark, in order to permit Hunter to continue his schooling during the day 4 The foregoing is a compilation of the testimonies of Hunter. Poole, and Grimes, each of whom impressed me as a candid witness. Respondent of- fered no testimony to contradict the evidence given on behalf of the General Counsel except in regard to its alleged economic moti.ation for the terminal- tion of the shift. The "Garlotte" grievance was the first grievance filed on behalf of the employees on this shift. After the resolution of this grievance, Hunter and Moyers shook hands, and, in the words of Hunter, buried the hatchet. Counsel for the General Counsel contended that the statement by Bodden. repeated by Clark. threatening to transfer the employees of this shift in the event there was any more trouble constituted a threat to take retaliatory action in the event employees utilized the grievance proce- dure in violation of Section 8(a)(l) of the Act. I cannot agree. Even though Clark's statement to Poole about the trouble Hunter was causing since he received his badge (i.e.. became a steward) evidences some animus towards those who would invoke the grievance procedure, I do not find that these particular statements of Bodden and Clark rise to the level of a Section 8(a)( I) violation. The evidence in re- gard to this incident makes quite clear that Bodden was concerned with the dissension among the employees of the shift. and it was to that dissension that he addressed his threat.' Accordingly. I shall recommend that this allegation he dismissed. ('. The Hunter Grievatnce A safety meeting was held on the fourth shift on approxi- mately December 14. 1977. Supervisor C(lark requested all of the employees to sign a memorandum in regard to safet procedures. That memorandum incorporated certain other memorandums b reference, and because those incorpo- rated memorandums were not available for him to read. union steward Hunter refused to sign. lie was the only em- ployee to refuse. Subsequent to that refusal. employee Bon- nie Garlotte was present during a conversation between Movers and C(lark in which Clark expressed anger over Hunter's refusal. After this Clark approached Hunter and in a hostile manner told him I've had it up to here with you, you've done nothing but cause me trouble .... I did you a favor, and this is how you repay me... I've had fur other crews sign this thing and ou're the only one that's refused." Hunter offered to explain. but Clark would not listen. Clark told Hunter that he had sent the memo on with a notation next to Hunter's name that Hunter had refused to sign. When Hunter again tried to explain his position Clark told him that he had nothing to sa, and that before he would transfer ansone else onto the fourth shift he would check them out completely. [ollowing his conversation with ('lark. Hunter initialed a grievance through chief steward Poole protesting the al- leged harassment b (lark. Hunter went on vacation on December 19. 1977. He did not return to work until the end of the ship\ardwide holi- day period which ran from December 23. 1977, until Janu- arx 2, 1978. William Weninegar filled in as acting steward. During this period Weninegar heard that one employee had been given a warning for absenteeism. He went to that em- ployee in his capacity as acting steward to ask if the em- 'T his concern for amicahllits among the I urth-shif employees is consis- tent with a statement made b ('lark to emplko(ee Peckinpaugh in ugust 1977, prior o an of the eents herein. wherein (lark told Peckinpaugh that the fourth hift was a shift where employees would hase to get along with one another or he mosed This statement as made on the occasion of Peckinpaugh', transler ilto the ourth hiet 419 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployee wanted any action taken concerning the warning. The employee said no. Later that night Moyers approached Weninegar and told him "that he wasn't going to stand fbr anybody going around soliciting grievances." Weninegar denied that he had been soliciting grievances. Further on during the shift Clark told Weninegar "I'm not going to put up with this kind of stuff on this shift, and that the stew- ards, they are going to go by the book well, we are all going to go by the book .... " Union business manager Grimes gave Superintendent Bodden the Hunter grievance on or about December 21, 1977. When he did so Bodden stated that if they were still having problems, he would move or do away with the shift as he had previously threatened. As noted, the entire facility, except for a skeleton crew, went on vacation from December 23, 1977, until January 2, 1978. At the conclusion of the last shift to be worked on December 23, Clark held a meeting of the employees on the fourth shift. He wished the employees a happy holiday sea- son and informed them that although he hated to have to tell them so, they were going to be transferred from their present shift. Clark stated that he had asked Bodden not to order this transfer, but that Bodden had refused to rescind the transfer. One of the employees asked Clark whether they were being transferred because of the grievance that had been filed, and Clark reluctantly stated that he believed that was so.' Shortly after this meeting Clark approached Weninegar and said something to the effect that he might have spoken out of turn when he made his earlier state- ments in regard to the reason for the transfer of the crew. Whether Clark's statements of December 23 attributing the transfer to Hunter's filing of a grievance was stated as a positive fact or was qualified by "probably," "I guess." or "I believe," that statement would reasonably tend to inter- fere with the employees' exercise of their statutory and con- tractual rights to file grievances. What employee would risk the filing of a grievance after his or her supervisor had made such a statement. No element of an 8(c) free expres- sion of opinion is involved herein; Clark's statement, how- ever phrased, pointed out the danger that the Employer would unlawfully retaliate against grievance filers and oth- ers who worked with them. Accordingly, I find that by Clark's statement of December 23, 1977, Respondent has interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights in violation of Section 8(a)(l) of the Act. D. The Return to Work, Transfer, and Constructive Discharges At the end of the Christmas holidays Bonnie Garlotte came to the plant to see if she could avert her transfer. She 6 Four employees testified to this statement. McGill testified that Clark did not qualify this statement with such expressions as "I believe." "I guess," or "probably." Garlotte's testimony on direct examination is consistent with McGill's: however, on cross-examination Garlotte acknowledged that Clark had qualified his statements by saying that he believed the transfer resulted from the filing of the grievance. Similarly, employee Peckinpaugh stated that Clark said that the grievance was probably a reason for the transfer. and Weninegar testified that Clark said that he guessed it was because of the grievance filed by Hunter. Based upon the foregoing I must conclude that Clark did not make an unqualified assertion that Hunter's grievance was the motivating factor for the transfer. was referred to Mr. Bodden who, she was told, would deter- mine on what shifts the individuals would be placed. Gar- lotte met with both Clark and Bodden. Bodden stated that he knew why she was there "that he had heard a lot of disturbance, that about two-thirds of the crew had been bickering down there." She denied that there had been dis- turbances on the shift since the first grievance involving her, and she explained her reasons for preferring a transfer to the first shift rather than to the second if a transfer was required. Bodden told her that "He had heard enough of the disturbances and hardships, and that he was just going to ship us all out, and he didn't want to take anymore." Clark held a meeting with employees when they returned to work on January 3, 1978. He told them that the plan to transfer them to other shifts was still in effect. He then denied or attempted to mitigate his earlier statement in re- gard to the reason for the transfer. Clark questioned whether he had actually said that they were being trans- ferred because of the grievance, and he told the employees that he did not recall saying it. He admitted that the elimi- nation of this shift was going to adversely affect production. Record evidence stands uncontradicted that the work of the fourth-shift electrical shop, west bank, was never subject to criticism for quantity or quality and had been compli- mented by the supervisor and by representatives of the pro- duction control department. On January 6 the employees received their transfer noti- fications. Each was transferred out of this shift and depart- ment, although some employees, such as Hunter, remained on the fourth shift. Most when to the second shift. The transfers were effective as of January 9, 1978. When the employees had first been told of their transfers, they were told that other employees would be transferred in to replace them. However. Respondent did not replace them. Rather, it terminated their shift. It is alleged that two of the employees, Peckinpaugh and McGill, were forced to terminate their employment because of this transfer. and that by such forced termination they were constructively discharged. Both were told by Clark that they could apply to Bodden to remain on the fourth shift on the basis that a transfer from that shift would cause hardship. McGill made such a written request by letter of January 4. He pointed out that the college courses which he was pursuing were held from 6 to 10 p.m., and this fact would prevent him from working on any other shift. McGill's request to remain on the fourth shift was denied by Bodden on January 6, 1978, on the basis that all avail- able jobs on the fourth shift had been filled. McGill worked for 2 days on the second shift to which he was assigned and then quit. Peckinpaugh had worked on the fourth shift since August 1977. and Clark was aware that he needed to work that shift in order to complete his schooling. Peckinpaugh spoke to Clark and was told that there were no more jobs avail- able on the fburth shift. He did not bother making a written request for hardship consideration of his personal problem, and he did not accept the transfer to the second shift. As a result of a union-filed grievance in regard to the termination of the fourth shift and the negotiations which were going on between Respondent and the Union in Janu- ary, the fourth shift in department 35. west bank, was re- 420 INGALLS SHIPBUILDING sumed at the end of January 1978. The employees who had worked on that shift, including Peckinpaugh and McGill. were recalled to that shift. Joseph V. Krebs, Respondent's director of the electrical and electronics department, testified that although a deci- sion to transfer the personnel of this shift to other shifts and to replace them with personnel from other shifts had ini- tially been made by Superintendent Bodden. he made a subsequent decision to terminate rather than transfer this shift. It was Krebs' testimony, unsupported by any docu- mentary evidence,7 that the decision to terminate the fourth shift was undertaken as part of an overall reduction in the employee complement of the shipyard. He testified that as of December 1, 1977, Respondent was seeking areas in which it could reduce the number of employees, as the workload was dropping off. At that time they were working on the last 4 or 5 ships in a contract to provide 30 destroy- ers for the United States Navy. As of December 1, 1977, Krebs testified that there were 3500 employees in his de- partment, and he intended to reduce this to 2700 by June 1978. He further testified that the bulk of the work is per- formed on the first shift, and that when manpower reduc- tions are sought, the back shifts, i.e., the second, third, and fourth shifts, are looked at first. He claimed that the work of the employees on the fourth shift was not needed, that the shop's work was 4 to 6 weeks ahead of the ship-board work, and that the manning on these areas on the ships was being reduced. According to Krebs. production was declin- ing at the time he decided to eliminate the shifts, and he had already started lowering the number of employees in the shop at a rate of one or two per week beginning in December. He said that it was his practice to let a shift be reduced slowly, down to approximately 10 employees. and then terminate the shift, as it is not feasible to have a shift with less than 10 employees and a supervisor working. Overall employment at the shipyard, according to Krebs, came down from 25,000 in December to 20,000 by the time of the hearing. Other shops have had their back shift elimi- nated or reduced in size. According to Krebs, he made the decision to terminate this part of the fourth shift on Janu- ary 4, 1978. As noted, the shift was reestablished pursuant to union negotiations around the end of January 1978. It The General Counsel had subpenaed extensive records in regard to the employees of this shift. their productivity. the productivitN of other emplo- ees in shipyard, and any and all documents relating to the decision to trans- fer these employees from the fourth shift. Respondent refused to comply with this suhpena. allegedly because the General Counsel had refused its request for written statements and affidavits taken in the course of the Inves- tigation made under the Freedom of Information Act pursuant to A L R B v. Robbins Tire and Rubber Company, 563 F.2d 724 (5th ('r. 1977). On June IS, 1978. the day following the hearing in this case, the Uinited States Su- preme Court announced its decision in the Rohbins Tire and Rubber ('om- pany case, reversing the decision of the U.S. Court of Appeals for the Fifth Circuit, 98 S.CI. 1231, 46 Law Week 4689 (1978). Moreover. whether Re- spondent was right or wrong in regard to the Robbins Tire issues, its "tit for tat" reasoning does not justify the withholding of subpenaed es idence which is relevant to the instant proceeding. In view of Respondent's refusal to comply with the subpena. Respondent was permitted to adduce only limited evidence in regard to its reasons for terminating the shift and that evidence only in response to issues broached by the General Counsel in her interroga- tion of Krebs as an adverse witness pursuant to Sec. 6(11 )(c) of the Federal Rules of Evidence. See '.L. R.B. v . H Sprague & Son ('o. 428 F.2d 938. 942 (Ist Cir. 1970). was again eliminated, allegedly for the same reasons as be- fore, on May 10, 1978. Considering all of the foregoing evidence, I must con- clude, in agreement with the General Counsel, that Respon- dent terminated the fourth shift, department 35. west bank, and transferred its employees to other shifts in retaliation for their grievance filing activity. In so concluding, I note in particular the following facts. Respondent's supervisors, especially Clark. Moyers. and Bodden. demonstrated an ex- tremely low level of tolerance for dissent, dissension, and union activity. This low tolerance was demonstrated by Clark's statements to Pole in November to the effect that Hunter had been nothing but trouble since he became a steward, and that Clark was particularly displeased with Hunter as he considered appointing Hunter to that shift to have been a favor: Clark's anger at Hunter for refusing to sign the incomplete safety memorandum: and Clark's state- ment to the gathered employees as to his understanding of the reason they were being transferred from the fourth shift. Moyers demonstrated his attitude toward the exercise of statutory and contractual rights when he berated Wenine- gar for what he believed to be the solicitation of a griev- ance. Bodden similarly expressed his inability to tolerate dissent and union activity in expressions to the employees, particularly in his statement to union business manager Grimes at the time that Grimes filed the Hunter grievance. I note further that the initial decision to transfer to crew to other shifts was made by Bodden and, without explanation, was a decision to replace these employees on that same shift with other employees. Ilis decision to do so followed so closely on the heels of the filing of the Hunter grievance as to warrant the inference that it was motivated by the filing of that grievance. Respondent contended, however. that the decision to transfer was revoked prior to its implementation. and that elimination of the shift entirely fbr valid business reasons was substituted. While this small part of the fourth shift was in fact eliminated, Respondent's evidence of a valid business justification is unconvincing. Krebs' testimony in regard to Respondent's economic motivation is entitled to little, if any, weight in view of Respondent's totally unjusti- fied refusal to comply with the General Counsel's subpena for documentary evidence which would have proved or dis- proved the economic motivation. An adverse inference, drawn from Respondent's failure to produce this evidence. is clearly warranted under these circumstances and out- weighs the conclusionary and unsupported testimony of Krebs. See Martin Luther King. Sr.. Nursing enter, 231 NLRB 15 (1977). Accordingly, I find that by eliminating the fourth shift in department 35, west bank, on January 9, 1978, and trans- ferring the employees therein to other shifts, Respondent has discriminated against those employees because of their union activities in violation of Section 8(a)( 1) and (3) of the Act. I further find that by this discriminatory shift elimination Respondent constructively discharged employees Peckin- paugh and McGill. Respondent was aware that both of these employees had been permitted to work on the fourth shift in order to accommodate their school schedules and was further aware that unless theN worked the fourth shift 421 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they would be unable to complete both their schooling and work. Utnder these conditions, the assignment to shifts in- consistent with their educational programs made their working conditions intolerable and forced them to termi- nate that employment. To the argument that Peckinpaugh failed to make a written request for a hardship assignment which would have kept him on the fourth shift, I note that he had been told by Clark that a request would do him no good. This information was born out by the response McGill received to his written request. A written request would have been futile, and Peckinpaugh could not be re- quired to engage in a futile act. I therefore further find that employees L. J. Peckinpaugh and Walker McGill, Jr., were discharged because of the union activities engaged in by the employees on their shift, and that their discharges violated Section 8(a)(1) and (3) of the Act. FURTHER CON(CL USIONS OF LAW I. By threatening employees with transfer from the shift on which they were working in order to discourage them from engaging in union or protected concerted activity, Re- spondent has violated Section 8(a)(1) of the Act. 2. By eliminating the fourth shift in department 35, west bank, on January 9, 1978, and transferring the employees who worked on that shift to other shifts because of the grievance filing activity by employees on that shift and in that department, and by constructively discharging L. J. Peckinpaugh and Walter McGill, Jr., Respondent has vio- lated Section 8(a)(3) and (1) of the Act. 3. Respondent has not engaged in any unfair labor prac- tices not specifically found herein. 4. The unfair labor practices enumerated above are un- fair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. TlE REMIDY It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)( I) and (3) of the Act, it will be recommended that Respondent be required to cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. It having been found that Respondent constructively dis- charged employees L. J. Peckinpaugh and Walter McGill, Jr., for discriminatory reasons but subsequently reinstated them to their former or substantially equivalent positions, Respondent shall be required to make them whole for any loss of pay they may have suffered by reason of the dis- crimination against them. The General Counsel contended that the other employees of the shift suffered financial losses because of the discrimination inasmuch as they had been privileged to work only 6-1/2 hours on the fourth shift while receiving pay for 8 hours, whereas on the shifts to which they were transferred they were required to work a full 8 hours for the same pay. Respondent contends that the gross pay for working the second shift actually exceeded the gross pay while working on the fourth shift, and that in computing backpay only the gross backpay is compared. Time factors in earning gross pay, Respondent asserts, are not elements for consideration in the determination of backpay. The General Counsel asserts that The Remedy should include backpay for the difference in time worked. Neither counsel provided pertinent authority to resolve this question. It is the objective of the requirement of backpay to restore the discriminatees as accurately as possible to the economic positions that they would have enjoyed, absent discrimination, during the entire backpay period. In the in- stant case the discrimination against the transferred em- ployees was akin to a reduction in hourly rate of pay. Clearly, had their hourly rates of pay been reduced but their hours of work increased or had overtime hours been assigned to make up the difference in monies earned, those extra or overtime hours would not be deducted from the gross backpay. See United Aircraft Corporation, 204 NLRB 1068, 1073 74 (1973). As noted by the Administrative Law Judge in that case "Earnings from such extra effort, whether exerted on 'excess overtime' or a 'moonlighting' job, should operate to the advantage of the backpay claim- ant, not of employer required to make him whole for dis- criminatory discharge." Accordingly. I find that the appro- priate remedy herein includes making the employees whole for the additional time that they were required to work in order to earn the same amount of money they had been earning when working on the fourth shift. Any backpay found to be due shall be computed, with interest, in the manner proscribed in F. W. Woolworth Companv, 90 NLRB 289 (1950), and in Florida Steel Corporation, 231 NLRB 651 (1977).8 As it appears that Respondent is primarily a contractor for the United States Government. and as there is a likeli- hood that it receives compensation for its contracts on a cost-plus basis, appropriate remedial action requires that Respondent bear the burden of its unlawful conduct rather than the Federal Government. Accordingly, I deem it ap- propriate to recommend, to the extent that it is within the Agency's power, that Respondent be precluded from pass- ing the cost of any backpay awarded hereunder on to the United States Government by virtue of any cost-plus con- tracts which it has. See N.A.A.C. P. v. F P.(., 425 U.S. 662 (1966). "A violation of Section 8(a)(3) goes to the very heart of the Act." It therefore warrants that Respondent be further required to cease and desist from infringing in any other manner upon rights guaranteed employees in Section 7 of the Act. Pan American Exterminating Co., Inc., 206 NLRB 298, footnote 1 (1973): Entwistle MAg. Co., 23 NLRB 1058 (1940), enfd. as modified 120 F.2d 532 (4th Cir. 1941). Upon the basis of the entire record, the findings of fact, conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER' The Respondent, Ingalls Shipbuilding, Division of Litton Systems, Inc., Pascagoula, Mississippi, its officers, agents, successors, and assigns, shall: See. generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). t In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National abor Relations Board. the findings. conclusions, and 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 ohbections thereto shall be deemed waived for all purposes. 422 INGALLS SHIPBUILDING 1. Cease and desist from: (a) Threatening its employees with transfer or other re- prisals if they engage in union or protected concerted activi- ties or file grievances under their collective-bargaining agreements. (b) Transferring or discharging its employees because they engage in union or protected concerted activities or file grievances under their collective-bargaining agreements. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist the International Brotherhood of Electrical Workers, Local 733, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Make L. J. Peckinpaugh, Walter McGill, Jr., and all other employees transferred from department 35, west bank, fourth shift, on January 9, 1978, whole for any loss of earnings they may have suffered as a result of the discrimi- nation against them, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other documents nec- essary and relevant to analyze and compute the amount of backpay due under this Order. (c) Post at its Pascagoula, Mississippi, shipyard copies of the attached notice marked "Appendix."'" Copies of said notice, on forms provided by the Regional Director for Re- gion 15, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. '0 In the event that this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NornEF To EPI.oVEES POSTED BY ORD)ER OF I Ilt NATIONAL LABOR REI.ATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present their evidence, the National l.abor Relations Board has found that we violated the law and has ordered us to post this notice. The Act gives the employees the following rights: To engage in self-organization To form, join or assist any union To bargain collectively through representatives of their own choosing To engage in activities together for the purpose of collective-bargaining or other mutual aid or protec- tion To refrain from the exercise of any such activities. WE WIl.l. NO] threaten our employees with transfer or other reprisals in order to discourage them from engaging in union or other protected concerted activi- ties or from exercising their rights under their collec- tive-bargaining agreements. WE WILL NOT transfer or discharge employees be- cause they engage in union or other protected con- certed activities or because they file grievances under their collective-bargaining agreement. Wli WILI make L. J. Peckinpaugh. Walter McGill, Jr., and all other employees of Department 35. West Bank, fourth shift whole for any loss of pay' they may have suffered by reason of our discrimination against them, with interest. WE Will. NOT in any other manner interfere with, restrain or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist the International Brotherhood of Electrical Workers, Lo- cal 733, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purposes of collective-bargaining or other mutual aid or protection. or to refrain from an) or all such ac- tivity. INGAI L.S SIIPBtII.DIN(;, DIVISION OF LIION SYS- TEMS, INC. 423