Offshore Shipbuilding, Inc.

OFFSHORE SHIPBUILDING Offshore Shipbuilding, Inc. and International Broth- erhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO. Cases 12-CA-10513 (1-7), 12-CA-10529 (1-2), 12-CA-10544 (1, 3 & 4), 12-CA-10680, 12- CA-10773, and 12-RC-6349 28 February 1985 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 19 April 1984 Administrative Law Judge William A. Gershuny issued the attached decision. The Charging Party and the General Counsel filed exceptions and supporting briefs and the Respond- ent filed an answering brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 only to the extent consistent with this Decision and Order. The complaint alleges, inter alia, that about 21 December 1982 the Respondent, acting through Foreman Turk, unlawfully interrogated an employ- ee about his union activities. Turk admitted asking employee Caro, at Vice President Tenore's request, whether Caro favored a union, but denied threatening him. Turk also tes- tified that Caro responded that he did not favor a union and that Turk reported this to Tenore. Cred- iting Turk's testimony, the judge found that an in- terrogation occurred in September-October 1982. However, the judge dismissed the allegation, con- cluding that "an interrogation, otherwise unlawful, occurred in September-October 1982 of a single i The General Counsel and the Charging Party have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings , except as directed herein In sec II,B,3 of his decision the judge discredits employee G Thomas' testimony based on his observation of the witness' demeanor The judge further rejects Thomas' testimony in its entirety, concluding that he gave false testimony concerning the handwriting on his employment applica- tion We disavow reliance on this latter basis for discrediting Thomas' testimony 2 We find that the General Counsel's and the Charging Party's allega- tions of bias and prejudice on the part of the judge are totally without merit Upon our full consideration of the record and the judge's decision, we perceive no evidence that the judge prejudged the case, made preju- dicial rulings , or acted as an advocate rather than as an impartial trier of fact . There is no basis for finding that bias and partiality existed merely because the judge resolved important factual conflicts in favor of the Re- spondent's witnesses Furthermore, it is the duty of the judge under the Board's Rules and Regulations (Sec 102 35 ) to inquire into the facts by examining and cross-examining witnesses Accordingly, we find no basis for granting the Charging Party's request for a trial de novo 539 employee as to his union sympathies generally; that it was a remote and isolated incident; and that it is not fairly encompassed within the scope . . . of the complaint." The General Counsel and the Charg- ing Party excepted to the judge's failure to remedy the interrogation admitted by Turk, contending that, although the interrogation was not specifically alleged in the complaint, it was closely related to other allegations in the complaint and was fully liti- gated.3 We find merit to the exceptions and con- clude that Turk's statement was not an innocuous casual remark, but reasonably tended to interfere with employees' Section 7 rights. Furthermore, particularly in view of our finding below that the Respondent also unlawfully threatened to discharge union supporters, we conclude, contrary to the judge, that Turk's interrogation of Caro was not isolated. Accordingly, we find that Turk's conduct constituted an unlawful interrogation in violation of Section 8(a)(1) of the Act.4 The General Counsel and the Charging Party also excepted to the judge's dismissal of the portion of complaint alleging that about 5 January 1983 Foreman Drew unlawfully threatened a group of employees with discharge for union activities and singled out an employee as having engaged in union activities. Employee Story testified, and the judge so cred- ited him, that Foreman Drew about 5 January as- sembled his crew and told them that employees would be discharged and sent to Jacksonville to join the Union if they thought the Union could do anything for them, and that employees talking about a union would be discharged. Story testified that Drew singled out three employees by name. Story's testimony was corroborated by employee Prime and in part by employees Tomlinson and Cox. Foreman Drew, whom the judge had previ- ously found to be a credible witness, testified that he warned employees about passing out union cards on company time and that when employee Prime snickered he added, "Got that Al?" The record reveals that Drew did not actually deny making the statement concerning Jacksonville, but said he did not remember making such a remark. The judge found that he was faced with conflict- ing testimony of two credible witnesses, namely, Story and Drew, and proceeded to assess the "probabilities that such a statement would have been made" by Drew. The judge concluded that the threats attributed to Drew did not make sense: s Inland Steel Co, 259 NLRB 191, 194 at fn 7 (1981) 4 Chairman Dotson would not find this conversation violative of Sec 8(a)(1) for the reasons stated by the judge 274 NLRB No. 77 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The mere existence of a sympathy, unex- pressed, would hardly cause a foreman to dis- charge an employee; to ask an employee to reveal his sympathy so as to invite discharge is unlikely; to threaten to send a sympathizer to Jacksonville to join the Union is unintelligible; and to threaten discharge conflicts with the testimony of some employees that some pins and insignias were already on display at work. [ALJD, sec. II,E,5.] A reading of the record shows that Drew was not asking the employees to reveal their support for the Union, but rather was making an open threat to discharge union supporters. Moreover, the threat to send union sympathizers to Jackson- ville is not "unintelligible," as the union hall where the organizing drive originated is located in Jack- sonville. Nor is it clear how testimony that pins and insignias were on display at the shipyard would conflict with the allegation of discharge threats. Based on our examination of the record evi- dence, particularly the mutually corroborative tes- timony of Story and Prime, we reverse the judge's dismissal of the allegations pertaining to the 5 Janu- ary 1983 Drew incident and find that the state- ments attributed to Foreman Drew violated Sec- tion 8(a)(1) of the Act.5 CONCLUSIONS OF LAW 1. Offshore Shipbuilding, Inc. is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Help- ers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating an employee about his union activities and sentiments the Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 4. By threatening to discharge employees be- cause of their union activities and sentiments in order to discourage employees from engaging in activities on behalf of, or supporting, the Union, the Respondent has violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent violated Sec- tion 8(a)(1) of the Act we shall order it to cease 5 See generally J N Ceazan Co, 246 NLRB 637, 638 fn 6 (1979) and desist therefrom and to take certain affirmative action in order to effectuate the policies of the Act. ORDER The National Labor Relations Board orders that the Respondent, Offshore Shipbuilding, Inc., Pa- latka, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees about their union ac- tivities and sentiments. (b) Threatening to discharge or otherwise disci- pline employees because of their union activities and sentiments in order to discourage employees from engaging in activities on behalf of, or support- ing, the Union. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its Palatka, Florida facility copies of the attached notice marked "Appendix."6 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the objections be overruled. CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid bal- lots have not been cast for International Brother- hood of Boilermakers, Iron Shipbuilders, Black- smiths, Forgers and Helpers, AFL-CIO and that it is not the exclusive representative of the bargaining unit employees. 6 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " OFFSHORE SHIPBUILDING 541 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT interrogate our employees about their union activities and sentiments. WE WILL NOT threaten to discharge or otherwise discipline employees because of their union activi- ties and sentiments in order to discourage employ- ees from engaging in activities on behalf of, or sup- porting, the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. OFFSHORE SHIPBUILDING, INC. DECISION STATEMENT OF THE CASE WILLIAM A. GERSHUNY, Administrative Law Judge A hearing was conducted in Palatka, Florida, on Novem- ber 8-16 and December 5-9, 1983, based on a consolidat- ed complaint issued on October 28, 1983, as amended at the hearing, alleging a number of violations of Section 8(a)(1), (3), and (4) of the National Labor Relations Act, including the unlawful discharge of six employees in Jan- uary 1983, 2 months prior to a representation election and the unlawful layoff and refusal to recall 82 employ- ees on May 27, June 10 and 28, and July 8, 1983, several months after the election. Consolidated with the com- plaint are numerous union objections to employer con- duct prior to the election and issues as to the voting eli- gibility of 28 employees On the entire record, including my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION The complaint alleges, the answer admits, and I find that the Respondent is an employer subject to the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. it also constructed the large, 280-foot auto-passenger ferry Grand Republic, which was launched on May 25, 1983, and delivered to its owner in New York on July 8, and started construction of a smaller 130-foot ferry for the State of North Carolina. As discussed below in sec- tion II,C, "The Layoffs," the yard's level of business is reflective generally of the economy of the offshore oil production industry. Union organization efforts at the yard commenced in late December 1982, with concentrated card signing ac- tivities beginning in early January, at which time many employees began wearing union pins and insignia to work. By letters dated January 12 and 20, 1983, the Union gave notice to the Respondent of the names of 33 employees it claimed were on an organizing committee. Accordingly, for the most part, there is no issue of com- pany knowledge of union activity A representation petition was filed on January 31, 1983, for a unit of production and maintenance employ- ees at the yard. An election was conducted on March 18, 1983, with 113 votes cast for the Company, 88 votes for the Union, and 28 ballots challenged Five employees were discharged in January 1983 (2 months before the election) for allegedly unlawful rea- sons and another employee was discharged on April 14, 1983 (1 month after the election) At the hearing, the General Counsel withdrew an allegation of unlawful dis- charge of another employee on December 31, 1982. Fol- lowing the launch of the Grand Republic, 82 employees were laid off on May 27, June 10 and 28, and July 8 al- legedly for unlawful reasons By the time this hearing commenced on November 8, 1983, 12-13 employees had been recalled and another 12-13 new employees had been hired. In April 1983, about a month after the election, a major management change occurred with four top level officials at the yard being replaced. Thus, the events pre- ceding the election occurred during the administration of Vice President and General Manager Tenore and Per- sonnel Manager Stewart, while the events thereafter (in- cluding the layoffs) occurred during the administration of Vice President and General Manager Carman The campaign, I find, was a "quiet" one, in the words of Tenore. Solicitation and distribution were not imped- ed; there was no surveillance; few supervisors are in- volved in the case; and, interestingly, of all the shipyard trades, mainly welders are involved. From first notice from the Union, the Company was counseled by experi- enced labor counsel, stressing mainly the depressed state of the shipyard industry and the need to remain competi- tive. Supervisors were given the well-known "tips": Do not threaten, interrogate, promise, or spy. Company policy, I find, was "business as usual." II. UNFAIR LABOR PRACTICES AND OBJECTIONS A. Background The Respondent operates a shipyard on the St. John's River in Palatka, Florida, where it constructs offshore oil-producing supply ships primarily for its parent com- pany and sister subsidiaries. During the relevant period, B. The Discharges The complaint originally contained allegations of eight unlawful discharges based on union activities. All but one were alleged to have occurred during the first 4 weeks of organizing activities. At the hearing, the General Counsel withdrew one (Modlin, December 31, 1982) and amended another 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Prime; January 21, 1983) to allege a discharge reduced to a 3-day suspension. To place these allegations in perspective, I note that uncontroverted evidence establishes that, in the last half of 1982, the work force grew from less than 50 to more than 225; that, in the 12-month period preceding January 31, 1983, 65 employees were terminated (30 for excessive absenteeism, 22 for unsatisfactory work/nonproduction, 13 for other reasons); and that, in January 1983, 3 em- ployees, in addition to the 6 presently involved in this case, were terminated for excessive absenteeism or lack of production. 1. Welder E. Caro Caro was discharged on January 11, 1983, when he re- turned to work following the hunting season after having "obtained permission" to be off on January 10 to take care of three flat tires he had on Sunday and three flat tires he had on Monday. He testified that his foreman, Turk, disclaimed knowledge of the discharge, but wrote "absenteeism" on the termination papers after visiting the office. On cross-examination, he admitted having re- ceived a prior 30-day suspension for absenteeism, adding that he had no attendance problem and that 11 days ab- sence is "not bad " Coworker Kronz, whose election month (March) discharge for absenteeism is not alleged to be unlawful, substantially corroborated this testimony. Personnel Manager Stewart testified that, in accord- ance with routine procedures, he met with Vice Presi- dent Tenore on January 10 (following Tenore's 1-week absence from the office) to discuss the daily absentee report; that, with knowledge of a pending police investi- gation concerning Caro's automobile and his suspended license and based on Caro's history of "transport prob- lems" resulting in frequent absences, he and Tenore de- cided to fire him for excessive absenteeism; and that the Union's initial telegram informing the Company of its or- ganizing effort (but without informing it of the names of members of the organizing committee) had been received on Saturday, but was not discussed by them until after the Monday morning meeting on absentees. Tenore cor- roborated this testimony, adding that he was disappoint- ed because Caro had been a good, older worker. Weld- ing Foreman Turk confirmed that he spoke with Caro and Kronz on January 10 about a tire problem ("girl friend or wife stranded with truck on highway"), that he told them to take off if they had to, that Kronz and Caro were expected to return, and that neither did. The single issue presented here-and in almost each of the other allegations-is one of credibility. As to each material witness, the credibility findings in this decision are based principally on observation and comparison of demeanor during testimony, as reflected in contempora- neous trial notes. As to certain of the witnesses, a sec- ondary, yet independent, basis is identified-conflict and inconsistency of testimony, as reflected by record evi- dence I credit the testimony of then Personnel Manager Stewart and then Vice President Tenore based on my observation of witness demeanor. Both were convincing and their testimony was clear. Moreover, the element of partisan bias was wholly absent, each having been sum- marily dismissed by the parent corporation in New York, for unrelated reasons, during an April 1983 overhaul of top management at the Palatka shipyard. In addition, their testimony was consistent with personnel records re- flecting a longstanding concern with growing absentee- ism during the rapid buildup of the work force since mid-1982. Finally, the stated cause for the termination was not pretextual-Caro's opinion notwithstanding, 11 absences and a 30-day suspension for absenteeism is a de- plorable attendance record and one which the Respond- ent reasonably need not tolerate. At the same time, I am unable to credit Caro. He was not a convincing witness, based on my demeanor obser- vations, and it took persistent and aggressive cross-exam- ination to extract from him the complete version of rele- vant events. Assuming without deciding that Caro engaged in union activities and that his activities were known to the Respondent, I find and conclude that the sole and exclu- sive reason for Caro's discharge was his record of ab- sences and that the termination decision would have been made regardless of any protected concerted activity on his part. The allegation is dismissed. 2. Welder W. Davis Davis was discharged with Caro on January 11. He had been out the day before due to the flu and, because he had no telephone, had asked Caro to call in for him. He testified, like Caro, that Turk said he knew nothing of the discharge, but wrote "absenteeism" across the paper after he returned from the office. On cross-exami- nation, he admitted that he had received two prior warn- ings (one with a 3-day suspension), that Foreman Turk had orally warned him "to start being here on a regular basis . . . missing too much time," that other foremen talked to him about his attendance, and that he knew he was in trouble due to his attendance record. Former Personnel Manager Stewart testified that, at a regular meeting on absentees with Tenore on January 10, he and Tenore decided they could not put up with Davis' record (30 absences in the past year) and his ig- noring warnings of supervisors, and that the first union communication with the Company was not discussed with Tenore until that afternoon. Tenore corroborated this testimony. Former Superintendent Cook testified as to numerous warnings given Davis in the past concern- ing attendance and that the discharge was solely because of poor attendance, adding that, at the time, there was no way of knowing Davis was a union supporter. Fore- man Turk confirmed that Davis had been spoken to a number of times concerning his poor attendance ("I need a man at work every day"). For the reasons set forth above in section II,B,1, I credit the testimony of Tenore and Stewart over that of Davis Like Caro, Davis was willing to reveal the com- plete version of relevant events only after aggressive cross-examination. Based on their demeanor on the stand, I credit throughout the testimony of former Superintend- ent Cook and Foreman Turk. Cook, like Tenore and Stewart, was a victim of the sudden April 1983 manage- ment housecleaning and thus lacked the usual partisan OFFSHORE SHIPBUILDING bias. Moreover, his testimony was consistent with per- sonnel data concerning Davis and others and the realities of the production activities at the yard in late 1982 and early 1983. Turk I found to be a particularly convincing witness I have the definite feeling that his heavy in- volvement in this case stems not from any antiunion sen- timent on his part, but rather from the fact that he was a supervisor who expected an 8-hour day from his crew and was dedicated to maximizing production, goals shared by few of the General Counsel 's witnesses. Final- ly, the stated reason for the discharge-absenteeism- was not pretextual and a record of 30 absences in 1 year is one which the Respondent reasonably need not toler- ate. Assuming without deciding that Caro engaged in union activities and that his activities were known to the Respondent, I find and conclude that the sole and exclu- sive reason for Davis' discharge was his record of ab- sences and that the termination would have taken place regardless of any protected concerted activity on his part. Accordingly, this allegation is dismissed. 3. Welder G. Thomas Thomas was discharged on January 10 and paragraph 15(d) of the complaint alleges the unlawful issuance of a written warning to him at the same time. Thomas, on direct, testified that he began to quarrel with Foreman Turk about the latter's expressed concern as to lack of production on Thomas' part ; that Turk kept repeating, "[T]ighten up"; that, after quarreling a while, he was taken to the office where Superintendent Cook spoke about Thomas' "threats" and gave him a 3-day suspen- sion for lack of production; that, when he refused to sign the warning slip, Personnel Manager Stewart was called in, giving Thomas the option to quit or be fired; that, when Thomas refused to quit, Stewart terminated him for, as set forth in a January 12 letter to him, low pro- duction, tardiness, and failure to call in. On cross-exami- nation, he admitted receiving a prior warning for tardi- ness, but denied having written "no" in response to an employment application question relating to prior con- victions, despite the fact that the handwritten "no" is identical to other "no's" admittedly written on the appli- cation form by him. Cook testified as to personal observations of Thomas' failure to perform work ; that he instructed Turk to ob- serve and talk with Thomas; that Thomas became bellig- erent, calling Cook and others "turkeys" and challenging Cook to discharge him ("I know the law "); and that Thomas was fired by Stewart (after being calmed down) for what occurred during the meeting. Assuming without deciding that Thomas engaged in union activities of which the Respondent was aware, I nevertheless find and conclude that the sole and exclu- sive reasons for the termination were those stated to Thomas in writing by the Respondent and that he would have been terminated regardless of any such activities on his part. In making these findings, I credit the testimony of Cook (for reasons set forth in sec II,B,2 above) over that of Thomas Moreover, I am unable to credit Thomas' testimony based on my observation of his de- 543 meanor. He, too, was evasive and reluctant to relate the whole truth. Finally, I reject his testimony in its entirety because he gave false testimony at the hearing concern- ing the handwriting on his employment application. Thomas' belligerent and hostile conduct on the job was evidently mirrored by his conduct away from the yard. On two occasions, at a social dinner party at the Holiday Inn and at city hall , Thomas followed and harassed Vice President Tenore with a camera, requiring, in the first case, the motel manager to call the police. These two allegations are dismissed. 4. Welder J. Thomas Thomas, a night-shift employee, was discharged on January 4. He testified that he needed additional lighting to complete his assignment; that, after failing to locate another floodlight and because his coemployee was unable to assist him in moving the light he was using be- cause of an injured back , he cut off the steel base of the 15-foot light with his torch so as to enable it to be placed inside the hull where he was working; and that he had obtained a union card at his home on December 31, signed it and kept it there, and turned it in to the union representative at his motel room on the morning of Janu- ary 5 "after I was fired." After some inadvertent collo- quy between counsel and the court in the presence of the witness as to employer knowledge of union activity, Thomas changed his testimony , stating that his union card was turned in on January 4 (before he was dis- charged). Coemployee Peterson testified that it took him and two others only a few minutes to reweld the light. Night Superintendent Crowel testified that Thomas ad- mitted cutting off the light base; that Thomas offered no explanation and did not mention his helper having a "sore back" and being unable to assist in carrying the light; that Thomas himself could have carried the porta- ble light he had been using on one side of the hull around to the other side and used it in exactly the same manner as before; that Thomas had a history of refusing to conform to regulations (show ID tag to guard; use tool tags), and that he discharged Thomas for these rea- sons alone. Leadman Smith testified that he gave Thomas the powerful portable light to use at the start of the night shift and showed him how he and others had previously inserted it between the ribs of the hull to light up the work area, that, in his experience , the light was adequate for the job and portable enough to be carried by one person ; that Thomas admitted cutting the steel base off the lamp when he moved to the other side of the hull, adding that he did not think to walk the light around and use it in the same way; that Thomas made no mention of his coworker's inability to help him lift the lamp; that others were available , as is common , to assist; that it took three workers 45 minutes to repair the light; and that he saw Thomas wearing a union sticker at work before he was fired. As to the sticker , it should be noted that Thomas testified that his union activity was limited to discussions with other employees and signing a card and that , while other witnesses had been asked and gave testimony concerning their wearing of union pins, stick- ers, and insignia, Thomas neither was asked nor did he 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD volunteer anything concerning the wearing of a union sticker, pin, or insignia before he was fired. Based on my observation of their demeanor on the stand, I credit the testimony of Crowel and Smith. Each was a superb witness in terms of clarity and each was particularly convincing. Smith, I believe, was mistaken in testifying that Thomas wore a union sticker on the day of his discharge because Thomas himself did not say he was wearing any such thing. Thomas, on the other hand, was an evasive witness, lacking in candor and willing to alter his testimony when he considered it to be to his benefit. I believe he testified falsely, in this regard, when he "corrected" himself to say his card was turned in the morning of January 4, rather than the morning of January 5. While memories as to dates may be vague and require refreshing, a dis- charged employee is unlikely to be confused as to wheth- er the card was turned in before or after the discharge. Accordingly, I find and conclude that Thomas en- gaged in no observable or known union activity until after his discharge on January 4; that the sole and exclu- sive reason for his discharge was his bizarre conduct that shift in damaging a floodlight ; and that, in any event, he would have been discharged regardless of any known protected concerted activity on his part. This allegation is dismissed. 5. Fitter-welder D. Pugh Pugh was discharged on April 14 and paragraphs 16(b) and (c) of the complaint allege his unlawful transfer on March 29 (after the election) and the issuance of an un- lawful warning on April 8. Pugh, on direct, testified that Superintendent Cook tranferred him to the welding department because of a shortage of welders; that on April 8 he received a warn- ing from Foreman Turk for "bad mouth, smart mouth and lack of production" and was sent back to the prefab department; and that Foreman Kaczmarek Senior dis- charged him for lack of production on April 4 without specifying his deficiencies. On cross-examination, he ad- mitted that, when he was transferred to the welding de- partment with others, there was no reference to the Union; that he had been warned previously about his work performance; that on another assignment he was told that he "took too long" to perform the work, and that on April 7, the day prior to his written warning, he responded to his foreman's question as to when he would be finished with an assignment, "I'll get the job done when I get the job done." Other employees called by the General Counsel con- firmed that Pugh was a poor worker. Laid-off welder Miller acknowledged that Pugh had not done his assign- ment on three separate occasions. Kaczmarek 's son testi- fied that his father told him Pugh was discharged for lack of production and that, if there had been any other reason for the discharge, his father would have said so. Kaczmarek's son-in-law also testified that Pugh was dis- charged for lack of production; that Kaczmarek Senior. never mentioned Pugh's union activity; and that he and Pugh were removed from a job once because they were "too slow" and took "too long" to complete the work. The Respondent's witnesses gave even more detailed testimony concerning Pugh's poor work habits Quarter- man Vermeulen testified that he observed Pugh in April "piddlin' around" (i.e., working at a leisurely pace); that Pugh failed to complete assigned work in the expected time, that Foreman Turk was asked to speak to him about his performance; that, after Pugh gave Turk a "smart" answer, Pugh was reassigned to the fab shop, and that Pugh's known support for the Union was not considered. Leadman Fine confirmed that Pugh was a "mediocre" welder while working on assignment to the welding department, taking longer than others to per- form tasks and not working up to the standards of a first- class welder. Leadman Keith, who directed Pugh in the fab shop for 6-8 months, also confirmed that Pugh took longer than others to perform work despite the fact he had a helper as often as others; that he botched the fit- ting of a stern roller cone, causing a costly piece of fabri- cated steel to be scrapped; that he was idle when work had been assigned him; and that 30 percent of his work had to be redone. Coworker Crews similarly confirmed Pugh's poor work habits (wandering around; slower than others). Fab department leadman Werkheiser testified that Pugh, a first-class welder, did less production work than third-class welders and was repeatedly warned and that, in his opinion, Pugh did not have the right attitude to do any job at the yard Fab Shop Foreman Kaczmarek Senior testified that, while Pugh once was one of his top men, in late 1982 he changed, becoming a "poor" worker with "no initiative, no enthusiasm"; that coemployees complained about Pugh and leadmen did not want him on their crews; that he took much longer than others to perform like work; and that numerous meetings were held with Pugh to dis- cuss his poor work performance. As to Pugh's transfer in March to the welding department, Kaczmarek Senior testified that Pugh originally had worked in that depart- ment, that welders were needed in the welding depart- ment (whose work increases as the fab shop work winds down), that Pugh and another welder (whose transfer is not alleged to be unlawful) were transferred to the day shift in the welding department, that several days later Pugh was returned with complaints of slow work which was "eating up" the welding department's budget; that, again, complaints were received of poor workmanship and attitude in the fab shop; that he recommended the discharge of Pugh and affirmative action on that request was delayed due to a change in management at the yard; and that Pugh's union activity never was a consideration because "the man was useless to me" as a welder. Welding Foreman Turk testified that he hired Pugh originally as a welder in the welding department; that Pugh had asked for a transfer to the fab shop; that he was temporarily assigned to the welding department to assist on the ferry boat which was behind schedule; that Pugh then was not the same quality welder he had been before, sitting around, producing no work, and refusing to tell his supervisors when he would be finished with an assignment ("done when I'm done"); that, as each job was budgeted by department, Turk considered Pugh to OFFSHORE SHIPBUILDING be "killing my budget", and that he was returned to the fab shop for those reasons. Based on my observation of his demeanor on the wit- ness stand, I am unable to credit Pugh . He was totally unconvincing and lacking in candor, his testimony was contradictory , and he admitted falsely stating on his ap- plication for unemployment compensation that he never had received a warning about his job performance at the yard. On the other hand , my observation of the demeanor of Vermeulen and Kaczmarek Senior compels me to credit their testimony fully. Vermeulen's testimony, without embellishment or exaggeration , was convincing; Kacz- marek Senior was a particularly convincing witness, with no work interest other than the building of quality ships and no antiunion motives Noteworthy is the fact that both his son and son-in -law, called by the General Coun- sel, testified that he was a man to be trusted and be- lieved . And, for the reasons set forth in section II,B,2, I credit the testimony of Foreman Turk. There simply is no evidence or suggestion of an un- lawful motive behind the transfer and subsequent disci- pline of Pugh in late March and April . The campaign was over and the election had been held, there was a le- gitimate need for welders in the welding department, Pugh had originally worked there, there is no allegation that the transfer of his coworker at the same time was unlawful, and Pugh's membership on an employee orga- nizing committee was public knowledge for 3 months. Accordingly, I find and conclude that the transfer, warning, and discharge of Pugh, as alleged, were moti- vated solely and exclusively by Pugh 's unacceptable work performance and attitude and that , in any event, the Respondent would have taken the same action re- gardless of any protected concerted activity on his part. These allegations also must be dismissed 6. Welder M . Adkins Adkins was discharged on January 7. He testified that, after attending a union meeting at the Holiday Inn, at which leadman Smith also was present , he reported to work and was fired by Quarterman Vermeulen for lack of production; and that , in October 1982, he had re- ceived two written warnings for lack of production. On cross-examination, he admitted that Vermeulen had dis- cussed his poor performance on a number of occasions. Vermeulen elaborated on Adkins' prior discipline in October 1982, long before any union activity , noting that welds were sloppy , with pinholes ; that he "goofed off," telling his helper one day to "make the work last"; that other first-class welders did four times the amount of work; and that warnings had a positive effect on Adkins' performance only for a few days. As to the discharge, Vermeulen testified that he assigned six welds to Adkins for completion that shift ; that another crew took 2 hours to complete identical work, but Adkins failed to com- plete one-half of the work; that work performance was the only reason for his decision to fire Adkins; that he was not aware of union activity at the time and did not consider it; and that he had recommended the discharge of other low producers 545 Night Superintendent Crowe] confirmed Vermeulen's account of the 1982 discipline , emphasizing the repeated warnings and poor job evaluation in December 1982. Leadman Smith , on whose crew Adkins was working, testified that Adkins was always a slow worker and was told frequently that he had to get the job "done faster"; and that he was the slowest welder on the crew and pro- duced rough welds. Smith testified , and Vermeulen con- firmed , that Vermeulen did not learn of Smith 's attend- ance of the union meeting until after Adkins had been discharged . It should be noted that, despite the Union's present contention here that leadmen are supervisors and ineligible to vote in the representation election , the Gen- eral Counsel does not so contend and union officials per-` mitted Smith to attend early organization meetings. For the reasons set forth in sections II,B,4 and 5, above, I credit the testimony of Vermeulen and Smith. Adkins, on the other hand , was not a credible witness. Apart from the fact he was unconvincing and lacking in candor, his testimony was contradictory , indicating a negligent approach to the truth . He testified he signed a: union card on the evening of January 6 , 1 day before' his' discharge, but the card itself was dated January 7. In his Board affidavit, he stated he first heard of the union or- ganizing drive on January 5, while he testified he had heard of it long before January 5 Assuming without deciding, however, that Adkins did engage in observable and known union activity, I find and conclude nevertheless that the discharge was moti- vated solely and exclusively by Adkins' poor job per- formance and that the discharge decision would have been made regardless of any such activity on his part. This allegation is dismissed. C The Layoffs Paragraphs 16(e), (f), (g), and (h ) allege the unlawful layoff of approximately 30 employees on May 27, 1983, 24 on June 10, 4 on June 28, and 35 on July 8. Relying principally on the testimony of a number of hourly employees that there were unfinished hulls in the yard, admissions that certain skilled employees were hired during the period of layoff, and evidence of other unfair labor practices involving threats of discipline and closure, the General Counsel and the Charging Party contend that these layoffs, which occurred after the March 18 election and at a time when the results of that election were under attack by the Union, were unlawful- ly motivated. They have ignored , however, what should have been obvious to all, particularly the Union which represents large numbers of shipyard employees else- where-the demand for offshore supply vessels disap- peared in 1983 and the shipbuilding industry was experi- encing a deep recession Vice President Carman , whose testimony I credit as clear, convincing , candid , and consistent with other doc- umentary evidence, was appointed to the position as head of the Palatka yard on April 14, after the election and after the termination of Tenore and other top offi- cials. He had considerable experience in the shipbuilding business and I accept his testimony as to the state of the industry in 1983: that there had been a dramatic down- 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD turn in offshore drilling and the need for vessels which already were in a state of oversupply. The yard obtained no new contracts in 1983 and work on unfinished supply vessels was canceled. Work on the large Grand Republic commenced in late 1982 with a delivery date in late May to meet the needs of the summer season. The work force increased to 285; as the steel and fitting work was com- pleted, electrical and carpentry work increased and em- ployees were given the opportunity to transfer to those departments. The extent and the timing of the layoffs were dictated solely by estimates of need There is no evidence or suggestion that the Respondent intentionally refused new contracts or canceled old ones. The layoffs were conducted on the basis of objective criteria: The personnel department assigned points on the basis of attendance, discipline, and length of service; su- pervisors completed job evaluations without knowledge of their use; and, by department, employees with the lowest points were laid off. Following the first layoff, approximately 20 first-class electricians and 7 skilled finish carpenters were hired under contract to work on the ferry. None worked beyond the July 6 delivery date and none of the laid-off employees possessed their skill. Both union adherents and others whose sympathies were unknown were laid off. Assuming without deciding that Carman, who made the layoff decisions, knew of the sympathies of each em- ployee, I find and conclude that each of the layoff deci- sions was made solely and exclusively for legitimate busi- ness reasons; that union activities at the yard in general and the activities of individual employees played no role whatever in those decisions, and that, in any event, the same decisions would have been made regardless of union activity. There is no evidence of union animus and, as found below, there are no unfair labor practices or other objectionable conduct. The industry was de- pressed and no new work was contracted. Existing work was canceled. And, finally, the layoff procedure was a nondiscriminatory one. D The Failure to Recall On the first day of the hearing, the General Counsel amended the complaint to allege an unlawful failure to recall laid-off employees . No evidence of discriminatory recall procedures was offered and the General Counsel argues only that those procedures do not constitute valid offers of recall, addressing only 1-1/2 pages to this alle- gation . This allegation must be dismissed because the lay- offs were not unlawful . It must be dismissed also for a substantive reason : The recall procedures were nondis- criminatory, providing for written and telephonic con- tact to these laid-off employees and for their evaluation along with other applicants on an equal experience/equal comparability basis Some have been reemployed , others have - refused reemployment, and the process is continu- ing. E. Other Unfair Labor Practices and Objections 1. December 1982 discharge threat of Serna and Burgett Paragraph 6(a) of the complaint alleges that in Decem- ber 1982 (before any union organizing activity) Painting Foreman Burgett and Carpentry Foreman Serna threat- ened employees with discharge if any engaged in union activity. Welder Davis (discharged January 11) and his wife testified that the two foremen regularly visited their home after work; that Burgett said that Vice President Tenore had instructed them to fire an employee if the Union was mentioned; and that, during the conversation, they had consumed beer and had smoked marijuana. Burgett, who was not Davis' supervisor, testified that the meeting occurred in early or mid-December; that Davis initiated a discussion of unions, noting that he had lost his last job because of union activity; that he replied only that, if an employee does his job, there is no need to worry; that Davis had beer and marijuana, which Bur- gett smoked; and that he said nothing about Tenore, since Tenore had not given any instructions as to how to deal with union supporters. Foreman Serna, who did not supervise Davis, testified that social visits to Davis' home were common; that Davis raised the issue of a union; that nothing was said about Tenore; and that all four were high on drugs and alcohol. I find and conclude, based on the admissions of Davis and his wife and the testimony of Serna, which I credit as convincing based on my observation of his demeanor on the witness stand, that all participants to this social gathering were consuming beer and smoking marijuana and that their recollections therefore are so impaired by reason of alcohol and drugs as to render their testimony unreliable This allegation is dismissed for want of credible evi- dence. 2. The December 1982 actions of Foreman Turk Paragraphs 7(a), (b), and (c) of the complaint allege that Welding Foreman Turk, on December 21, 1982 (prior to any organizational activity), unlawfully interro- gated and threatened employees concerning their union activities. Welder Caro (discharged January 11) testified on direct that the only time his foreman, Turk, discussed the Union was I week before any union was even ap- proached and that Turk inquired whether Caro was in- volved in union activity, noting that his name and those of two crane operators were "brought up" and that such activities "had better cease." Turk admitted asking Caro, at Tenore' s request, whether he favored a union; that Caro said, "No"; and that this was reported to Tenore He testified, however, that neither he nor Tenore referred to Caro as a ring- leader or to any other employees; that no threats were made; and that this conversation occurred possibly 2-3 months before any union campaign , which would place the activity in the period of September-October 1982. OFFSHORE SHIPBUILDING For the reasons set forth in section II ,B,I and 2 above, I credit the testimony of Turk over that of Caro. Organi- zational activity began on December 26, when employee Danforth visited the union offices in Jacksonville; card signing and the wearing of insignia did not begin until after January 1, the Company first had notice from the Union on January 10; membership of the employees' or- ganizing committee was not disclosed until after January 12; there is no evidence other employees were aware of this interrogation , the first charge was filed on January 11, less than 6 months from the date of the incident; and at no time did the General Counsel move to amend the complaint. I find and conclude that an interrogation , otherwise unlawful, occurred in September-October 1982 of a single employee as to his union sympathies generally; that it was a remote and isolated incident ; and that it is not fairly encompassed within the scope of paragraph 7 of the complaint. The allegations of paragraph 7 are dismissed. 3. The "no-return-to-automobile" rule Paragraph 8(a) alleges the unlawful promulgation of a rule prohibiting employees from returning to their auto- mobiles during lunch or other breaks . Fitter-welder Pugh (discharged April 14) and welder Adkins (discharged January 7) testified that the rule was issued for the stated reason that employees were getting drunk and cars were being damaged . Night Superintendent Crowe] testified that the rule was imposed because of evidence , in the fall of 1982, of drug and alcohol use in the parking lot, vehi- cle damage , and theft of parts. For the reasons set forth in section II,B,4 above, I credit the testimony of Crowel . There simply is no evi- dence to suggest that the rule was designed to, or had the effect of, interfering with the Section 7 rights of em- ployees. On the contrary, the evidence is undisputed that vehicles were damaged and employees were consuming intoxicants during lunch. Union literature had been, and continued to be, distributed outside the gate without re- striction by the Company and without complaint by the Union or the employees . I find and conclude that the rule was promulgated solely and exclusively for the pur- poses of plant safety and automobile security and that such a rule would have been promulgated, given the ex- periences of 1982, regardless of union activity at the yard Paragraph 8(a) of the complaint is dismissed. Paragraph 15(e) alleges the unlawful issuance of a warning to welder Peterson (laid off May 27) on January 11. The no-return -to-automobile rule had been modified for the night crews, because , unlike the day crews, there was no lunch truck in the yard for the benefit of the em- ployees working at night There was one proviso: Time- cards had to be left with the foreman to provide for some accountability of the comings and goings of night- shift employees . Admittedly, the rule and its proviso were known to all employees and this allegation involves only the enforcement of the proviso against a single, black employee Peterson testified that he had obtained permission from his foreman to go to the store during his lunch break, but 547 forgot to comply with the timecard proviso. He was given a written warning , which was reduced to a verbal warning when he refused to sign it . On cross-examina- tion, he admitted that two other employees also were warned for violating the proviso. Quarterman Vermeulen testified that Peterson accused his foreman of racial prejudice, stating that he was being warned only because he was black . Superintendent Crowel confirmed that the timecard rule had been ap- plied to all night-shift employees; that others had been warned for its violation ; that Peterson was not given a written warning; and that Peterson cried "racial discrimi- nation" and made no reference to the Union. For the reasons set forth in sections 11,13,4 and 5 above, I credit the testimony of Vermeulen and Crowel. Peterson, on the other hand , was a hostile, unconvincing witness, who, together with J Thomas, gave false testi- mony concerning his "hurt back" which prevented him from helping Thomas carry the portable floodlight (sec II,B,4 above) Peterson never reported an injury and, indeed, held the pole erect later that night while it was being rewelded. Assuming without deciding that Peterson (who never was identified by the Union to the Company as a union supporter, as it did for 33 other employees) did engage in known or observable protected concerted activity, I find that this rule, otherwise valid , was not disparately en- forced against Peterson because of his union activity and that the Respondent would have warned him regardless of any such activity. Paragraph 15(e) of the complaint is dismissed. 4. January 4 threat of Foreman Drew Paragraph 9(a) alleges that Foreman Drew , on Janu- ary 4 or 5, threatened employees with discharge if they engaged in union activity. Pipefitter Cox (laid off June 10) testified that Drew stated , on January 4, that he had attended a meeting and, if he heard any discussion of the Union or saw any union pins, employees would be fired Drew denied making any such statement, admitting that he warned employees about passing out union cards on "company time." I am unable to credit Cox, who is involved in a number of incidents in this case. He clearly was an eva- sive witness, willing to relate the entire story only after aggressive cross-examination . Moreover, his testimony was contradicted by his affidavit as to whether he initiat- ed the conversation by asking Drew how he felt about the Union. And, lastly, two of the threats which Cox at- tributes to Drew were not even mentioned in his Board affidavit, given only weeks after the incidents. Drew, on the other hand , was a convincing witness, one who stated the facts with candor As with Turk, I have the clear feeling that his heavy involvement in this case stems from his more traditional work ethic, a view shared by few of the hourly employees who testified in the case I find and conclude that employees were told by Drew only that they were not to distribute union cards on "company time" and that such directions are not un- lawful. Our Way, Inc., 268 NLRB 394 (1983). 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Paragraph 9(a) of the complaint is dismissed. 5. The January 5 threats of Foreman Drew Paragraph 9(b) alleges that, on January 5, Foreman Drew unlawfully threatened employees with discharge for union activities and singled out an employee as having engaged in union activities Pipefitter Story testified that Drew , at a preshift meet- ing with 12 employees , stated that employees would be discharged and sent "to Jacksonville to loin the Union" if they thought the Union could do anything for them; that employees talking about a union would be dis- charged ; and that, singling out three employees by name (including A Prime), he asked, "Have you got that?" Pipefitter and welder Prime corroborated this testimony. I have previously credited the testimony of Drew (sec. II,E,4). Similarly, I credit the testimony of Story, which was straightforward and convincing . Faced with the conflicting testimony of credible witnesses, I must never- theless resolve that conflict by looking to the probabil- ities . that such a statement would have been made by this foreman, at this early point in the campaign , and in this kind of a campaign . I conclude that Story must have mi- sheard or misinterpreted Drew 's instructions about not signing cards on company time. Story's version was cor- roborated only in part by Tomlinson . But, most impor- tantly, the threats attributed to Drew do not make sense. The mere existence of a sympathy , unexpressed, would hardly cause a foreman to discharge an employee; to ask an employee to reveal his sympathy so as to invite dis- charge is unlikely; to threaten to send a sympathizer to Jacksonville to join the Union is unintelligible; and to threaten discharge conflicts with the testimony of some employees that some pins and insignia were already on display,at work The tenor of the record as a whole, as it relates to the Company 's posture in the campaign, simply conflicts with Story's recollection of the meeting. I therefore credit Drew's version : that he warned em- ployees about passing out union cards on company time and that, ' when Prime snickered , he added, "Got that, Al?" Paragraph 9(b) of the complaint is dismissed. 6. The January 7 threats of Foreman Drew Paragraphs 9(c) and (d) allege threats of discharge and reprisals on January 7 by Drew. Welder Davis testified that, on January 7, he over- heard Drew tell a leadman, "If you see him [Prime] stop and talk with anyone, fire him." Prime testified that the leadman was told to watch him for violations, that the leadman said he had "orders" from Drew to fire him; and that brew told another pipefitter not to sign a union card "or you'll be in trouble " Drew denied making any such statements. For the reasons set forth in section 11,E,4, I credit Drew's denials. Davis' testimony already has been found to lack credibility (sec. II,B,2). And Prime, whose testi- mony is inconsistent in part with that of Davis, is found below, in section 11,E,16, to be lacking in credibility In addition, such alleged threats conflict with the tenor of the whole campaign, from Tenore down, which was "business as usual." Paragraphs 9(c) and (d) are dismissed. 7 The January 10 interrogation of Foreman Drew Paragraph 9(e) of the complaint alleges an unlawful in- terrogation of an employee on January 10. Cox (laid off June 10) testified that Drew asked him what the employ- ees were "talking about" and what he "thought" of the Union, and that Drew also repeated an earlier statement that employees were not to discuss the Union. Foreman Drew denied making any such statement For the reasons set forth in section II,E,4 above, I credit Drew's denials; the testimony of Cox is not cred- ited for the reasons set forth in section 11,E,4 above. Accordingly, paragraph 9(e) is dismissed. 8. The January threats of Assistant General Manager Childress Paragraph 9(f), as amended at the hearing, alleges that Assistant General Manager Childress informed employ- ees of the futility of supporting the Union; threatened to reduce wages; and informed employees of the inevitabil- ity of a strike. Welder McDougal (laid off June 10) testi- fied that Childress told him and other employees at a meeting that the Union had a "30% chance of coming in"; that negotiations would begin at the minimum wage; and that, under Florida law, the Company had the right to hire replacements. Childress testified that employees at the meetings were told the Company would bargain in good faith "up or down," but would not yield anything on economics, that nothing was said about minimum wages, the outcome of bargaining, or reduction of wages; that employees were told that, under Florida law, economic strikers could be replaced after an impasse in bargaining ; and that employ- ees were told the Company would be required to bargain exclusively with the Union as to wages and working conditions, but would still talk with its employees. I found Childress to be a credible witness. His testimo- ny was clear and convincing and, as a top management official terminated by the parent company in April 1983, he lacked the usual partisan bias. McDougal, on the other hand, was wholly lacking in credibility. His testi- mony on direct (as to this and other allegations discussed below) bore no resemblance to that on cross-examina- tion, and he contradicted himself continually and was evasive. In short, McDougal did not come to the witness stand prepared to heed his oath to tell the "whole truth." Paragraph 9(f) is dismissed for want of credible evi- dence. 9. January 15 threats and interrogation of Foreman Drew Paragraph 9(g) alleges an unlawful threat of physical harm, threat of discharge, and interrogation at a bar on January 15. Cox (laid off June 10) testified on direct that, shortly after his "leave of absence" (see sec. 11,E,17 below), he was drinking in a bar when his friend Drew (with others) entered, stating that he wanted to "whip some OFFSHORE SHIPBUILDING union people asses"; that the Company would close the gates before letting the Union in, and that Cox could keep his job only if he stated in writing his opposition to the Union. On cross-examination, Cox admitted being a tough, experienced barroom fighter, having knocked a man unconscious in such a fight only 2 weeks prior (re- sulting in his injured hand), that he asked Drew what he thought of the Union; and that, in his affidavit of Janu- ary 1983, he did not mention any threat to close the yard. Foreman Drew testified that he had started celebrating his birthday that night at another bar; that Cox ap- proached him to talk ("just between you and me") about the Union and his inability to get light duty for a self- inflicted hand injury; that no threats or interrogations were made by him; and that both he and Cox were by that time "high" due to alcohol consumption As in section II,E,1 above, I find and conclude that the recollections of Cox and Drew are so impaired due to the consumption of alcohol at a bar as to render their testimony unreliable Accordingly, this allegation is dis- missed for want of credible evidence. 10. The January threats of Quarterman Turner Paragraphs 10(a) and (b) allege an unlawful surveil- lance and threat of discharge in early January. Welder Prime testified on direct that Turner said that Foreman Drew was under pressure from Vice President Tenore to "get rid of a lot of people" and Drew told Turner "I know" Prime is behind the union activity. Both Turk and Turner denied making any such state- ments For the reasons set forth in section II,E,16 below, I am unable to credit the testimony of Prime. Turk's testimony has been credited above in section II,B,2 and I found Turner to be a straightforward and convincing witness whose denials were consistent with what I find to be the tenor of this quiet campaign at the shipyard. These allegations are dismissed. 11 The January 17 job transfer of Knowles Paragraphs 12(a) and 15(c), as amended shortly before the testimony of Knowles, allege an unlawful job trans- fer of mechanic Knowles. On direct, Knowles testified that, on January 17, he was told by Crane Foreman McRae that he was being reassigned to forklift operator because his name appeared on the "union list." On cross-examination, however, Knowles admitted that his affidavit of January 26 stated that the conversation occurred on January 10 (2 days before the Union sent such a list of employee participants to the Company); that he changed his mind as to the date only after discussions with counsel for the General Counsel several weeks before his testimony; that he did not receive a wage reduction with the transfer; and, re- markably, that he had asked McRae at least 3-4 times to be transferred to the forklift. Comechanic White testified that Knowles violated instructions while he was a me- chanic, operating a piece of machinery and causing severe damage. McRae denied ever mentioning the Union to Knowles, let alone referring to any union list, 549 and confirmed Knowles' repeated requests to be a fork- lift operator and his poor performance as a mechanic. Knowles' testimony is rejected in its entirety as un- worthy of belief. He admitted, on cross-examination, re- questing the very transfer which is alleged to be unlaw- ful. And, most importantly, his correction of his original affidavit, after realizing (after discussions with counsel for the General Counsel) that McRae could not have re- ferred to a union list which had not yet been sent by the Union, raises grave questions as to whether the 'incident was manufactured for purposes of the charges filed against the Company. These allegations are dismissed. 12. The March 1 threat of Personnel Manager Stewart Paragraph 12(c) alleges an unlawful threat by Person- nel Manager Stewart to close the plant. Fitter helper R. Caro (laid off July 8) testified on direct that, at a man- agement meeting with employees a couple of weeks prior to the March 18 election, Stewart, after showing news stories of other companies which had gone out of business, stated, "[I]f the Union comes in, we'd lose-most of our business." On cross-examination, Caro admitted that the Stewart statement was not all that was said and that employees were told that other yards, union or non- union, were shutting down because of a downturn in the oil industry; that the yard had to remain competitive; that job security was determined by good business, and that the Company was "not saying the Union would close the yard down, but that it had to be competitive." On redirect, Caro testified that Vice President Tenore, 'at other meetings prior to the election, said "the Company would close the yard if the Union came in; we would not have the Union in this yard " This latter statement, if made, is not alleged in the complaint as a violation. Stewart testified that he and Assistant General Manag- er Childress conducted roundtable meetings with em- ployees to discuss job security because union literature said the Union could guarantee job security at the yard; that they said job security depends on contracts and quality of work; that there was a sharp downturn in the shipyard industry, resulting in 23 yards that were bank- rupt or had layoffs; and that at no time were employees told the yard would be closed or that other yards were closed due to union activity or that there would be no contracts if the Union prevailed. This allegation must be dismissed if for no other reason than the aunission of Caro that no such threat was made. Moreover, a threat of closure could not rea- sonably be inferred from the statements made. And, in any event, for the reasons set forth in section II,B,1 above, I credit the testimony of Stewart that no such threat was made or suggested. 13. The January threats of Vice President Tenore Paragraphs 13(a) and (c) allege the unlawful distribu- tion of a document on January 12 which warned em- ployees that they forfeit the right of self-representation if they sign a union card and an unlawful threat on January 29 to close the plant. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to the former, received as General Counsel's Ex- hibit 10 (a notice distributed to all employees on Janu- ary 12 with their payroll checks), the notice advises em- ployees, in part, not to sign cards unless they are sure they understand "what it means" and its effect on them and states that, after Board certification of the Union, the Company must deal only with the Union concerning the wages, hours, and working conditions of all employees, regardless of whether an employee has signed a card or joined the Union. This allegation must be dismissed for the reason that the statements made concerning self-rep- resentation were nothing more than a lawful reminder of the principle of majority rule which is central to the na- tional policy of fostering collective bargaining. Empori- um Capwell Co. v. Western Addition Community Organiza- tion , 420 U.S. 50 (1975). Board precedent is clear that such statements are lawful. NLRB v. Sacramento Clinical Laboratory, 623 F.2d 110 (9th Cir. 1980); WHLI Radio, 224 NLRB 1540 (1976). As to the latter, welder McGuire (laid off May 27, 1983) testified that, on January 29, Tenore said at a yard meeting he would close the plant first, before a Union came in. Pipefitter Tomlinson, leadman Fine, leadman Keith, and welder Crews testified that Tenore spoke not of closure, but of a promise to do everything "legally possible" or "in my power" to keep the Union out of the yard. Personnel Manager Stewart, who wrote the Tenore speech, testified that it was delivered against a backdrop of an NLRB publication concerning employee rights; that Tenore told employees he did not want a union and he would do everything "legally possible" to keep it out, and that Tenore said nothing about closure, saying only that "I've worked too hard to make this yard to close the doors; we're here to build ships." Chil- dress and Tenore corroborated this testimony, with Tenore adding that he would not close the yard, "not with nine members in my family." This allegation also must be dismissed . For the reasons set forth above in sec- tions II,B,1, and 8, I credit the testimony of Stewart, Tenore, and Childress. Their testimony was also cor- roborated by a number of hourly employees who attend- ed the meeting 14. Tenore's January promise of improved parking areas Paragraph 13(b) alleges that, on January 14, Tenore made a promise of improved parking areas. Fitter Pugh (discharged April 14, 1983) testified that Tenore, at a yard meeting in mid-January, told employees he would build a second parking lot for employees and would have guards watch the car. Night Superintendent Crowel testified that staff discussions as to relocation of the parking lot began in the fall of 1982 as a result of an increase in the work force and an increase of vandalism of parked vehicles and that land was leased for a sepa- rate lot for employees next to the security building. Tenore testified that, because of a rapid growth of the yard in the second half of 1982 and anticipated future growth, additional land was leased in 1982 for construc- tion of a parking lot away from the dangers of produc- tion work (spray paint, etc.) and nearer the security building. This allegation must be dismissed. The evidence is clear and uncontroverted that the Respondent had made plans for the improved parking areas long before the Union made an appearance at the yard and that there ex- isted a lawful business reason for making such improve- ments. There simply is no credited evidence (see sec. II,B,5 above re the noncredibility of Pugh) to suggest that this conduct was motivated in any respect by a desire to unlawfully influence the employees in the exer- cise of their Section 7 rights. 15. The January threatened transfer of Pugh Paragraph 14 alleges an unlawful implied threat on January 13 to transfer Pugh because of union activities. Fitter Pugh (discharged April 14) testified that, on January 13, Foreman Kaczmarek Senior interrupted his lunchtime discussion of the Union to tell him to report after lunch to the office; that there he told Pugh of a de- cision to transfer him to the night shift because of a need for welders; and that, after Pugh advised Superintendent Cook of his need to remain with his pregnant wife, the transfer was rescinded on the vice president's "personal orders." Pugh admitted that no reference was made to his union activities. Kaczmarek Junior, a machinist who rode back and forth to work with his father, testified that, in late January or early February, his father told him that the Company was making hardships for union sup- porters and that Pugh was transferred to the night shift "because of union activities"; and that, in February, his father said they were transferring an unproductive em- ployee (Pugh) to an undesirable shift. He acknowledged, on cross, that his father frequently complained of Pugh's lack of production; that his father said Pugh was dis- charged for lack of production; and that, if there had been any other reason for the discharge, his father would have said so to his son. Kaczmarek's son-in-law, fitter Walden (who also car- pooled with The Kaczmareks), testified that, long before any union activity at the yard, Kaczmarek Senior said, if any employee were transferred to the paint crew, the employee would quit because of the hard work involved; that Kaczmarek said he was told to transfer Pugh to welding, that Kaczmarek said a number of times he was not pleased with Pugh's production and work habits; that, when he, Walden, was working with Pugh, they were removed from an assignment because they were too slow and took "too long" to do the job; and that Kaczmarek never said anything about Pugh's union ac- tivity. McDonald, the fourth member of the carpool (and a future son-in-law), testified that Kaczmarek said the best way to get rid of an employee was to transfer him to the paint crew; that Kaczmarek said Pugh would be transferred to another shift (where welders were needed) because he did not like Pugh talking about the Union on company time, and that Kaczmarek told employees "nu- merous times" he did not care if they talked about the Union on their own time, but they were to work on company time. Kaczmarek Senior testified that he chose Pugh for transfer to the night shift because a welder was needed and only Pugh was a qualified air arc welder It should OFFSHORE SHIPBUILDING be noted at this point that this testimony was not refuted. He also testified that Pugh's known union support was not a factor in his decision, adding that he "couldn't care less about the Union." Cook corroborated this testimony, adding that Pugh had been originally hired as a welder and that the night shift needed a welder temporarily. This allegation must be dismissed because the decision (later rescinded) to transfer Pugh was not related in any way to Pugh's union activities, but rather was to provide the night shift with the services of an experienced arc welder. I have previously credited the testimony of Kaczmarek Senior and Cook in sections 11,B,5 and 2, above, and, in section II,B,5, found Pugh's testimony to lack credibility. At the same time, I find, based on de- meanor observations, that all members of the Kaczmarek carpool (Kaczmarek Senior's extended family) were honest and trustworthy witnesses . Their testimony, how- ever, was not consistent as to dates and as to the sub- stance of Kaczmarek Senior' s remarks This is to be ex- pected, since they consumed a couple of six-packs of beer driving home from work when their conversations occurred. Reconstructing those conversations (as I must) as they relate to Pugh, I find that Kaczmarek Senior voiced displeasure as to Pugh's work performance and Pugh's discussions of the Union with other employees when they should have been performing their work, but gave no indication that any transfer of Pugh was for the unlawful purpose of interfering with Pugh's union activi- ties. Any testimony of carpool members to the contrary represents, I believe, mistaken impressions on their part. As indicated in section II,B,5 above, Kaczmarek Senior was a particularly credible witness and I came away from the hearing with the clear and unmistakable impres- sion that he truly could not have cared less about the union campaign and that his sole interest at the yard was a professional one-to build quality ships. 16. The January warning and suspension of Prime Paragraphs 15(a) and 16(a) allege the unlawful issu- ance of a warning to welder Prime on January 7 and a 3- day suspension of January 21. As to the January 7 warning, Prime, a known union adherent, testified that he arrived late at work on Janu- ary 7; that nothing was said to him at the time and he gave no excuse; that later during lunch he received a written warning for being tardy; and that nothing was said about his union activity at the time. This allegation must be dismissed for want of credible evidence (see below for findings on credibility of Prime's testimony) and for failure to make out a prima facie case of unlawful discipline. Admitting that Prime was late and that discipline for tardiness was company practice, the General Counsel relies, for the inference of illegality, on the atmosphere at the yard. His position is untenable. This record is replete with credible, uncontroverted evi- dence as to the Respondent's concern over tardiness and absenteeism and its issuance of discipline for those rea- sons. It was company practice to review attendance records with Tenore each morning before issuing disci- pline (thus refuting the time lag argument of the General Counsel) The credible evidence throughout this lengthy record simply reflects a "business as usual" attitude on 551 the part of the Respondent, its officers, and supervisors and a total absence of union animosity. Here again the General Counsel and the Charging Party mistakenly have assumed, without proof, that all discipline of union adherents is unlawfully motivated. As to the January 21 suspension, Prime testified that, after work was rained out on the morning of January 21, he returned to the yard that afternoon, parking in a spot reserved for a leadman; that Quarterman Turner gave him a 3-day suspension for insubordination that he threatened to go to the Board or the Union to "get your job"; that Personnel Manager Stewart orally discharged him for the threat; that he was told the next day that he was only suspended because, as he was an employee hired on a work-release program with the county jail, the Company cared about making him a productive person; that Stewart said he did not care if the Union came in or not, only that the Company could build boats, and that, after the 3-day suspension, he was re- turned to duty. In his Board affidavit, he admitted that on other occasions other employees had lost parking privileges for parking in a reserved space. On cross, he admitted saying, "I'll get Drew fired," as Drew was scraping the parking permit from Prime's vehicle. Night Superintendent Crowe] testified that, in January, his wife was receiving threatening calls; and that, one night in his office, he received a call from an inebriated man (whose New England accent he identified as Prime's) and was asked, "Do you know where your wife and children are?" Cook, who was told to listen in, also identified Prime as the caller, saying, "Al, sober up and go home." Stewart testified that he was called to meet with Prime concerning the parking incident; that, be- cause Prime was incoherent (probably intoxicated) and abusive, he was terminated by Stewart, that, after consid- ering that Prime was a work-release employee and should be given another chance, Stewart met again with Prime, advising him that he was suspended, not terminat- ed, and that, on his return to work, they would discuss his future; that Prime said, "The Union will get you anyway"; that he replied, "We're talking of your future; I don't care about the Union"; and that, after the 3-day suspension, Prime apologized for having been drunk and was returned to work. Foreman Drew, a close friend of Prime who picked him up daily at the jail to drive him to work, confirmed that Prime was intoxicated and abusive ("I'll have your job; f- the company"); that he prevailed upon Stewart to reconsider the termination; and that others were disci- plined for illegal parking. Quarterman Turner confirmed Prime's state of intoxication and his threat to have Drew "punished for that and have your job." He testified that other employees were disciplined for the identical infrac- tion. This allegation likewise must be dismissed . The credi- ble testimony of Stewart, Crowel, Drew, and Turner (see secs. II,B,I and 4 and E,4 and 10), as well as the ad- missions of Prime, demonstrate that Prime, like others before him, was disciplined for parking illegally; that his conduct and demeanor at the meetings (brought on by alcohol and possibly drugs) was the aggravating factor; 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that his known union activity played absolutely no role in the decision to discipline him Moreover, it should be noted that Prime's testimony must be rejected for reasons other than his demonstrated vindictiveness and his inability to observe due to his consumption of al- cohol and possibly drugs-as a witness, Prime was a thoroughly unconvincing witness, demonstrating a con- venient loss of memory on cross-examination and refus- ing even to acknowledge the truth of statements previ- ously given to the Board. 17 The January 10 temporary layoff of Cox Paragraph 15(b) alleges an unlawful temporary layoff of 14 days of pipefitter Cox. Cox, on direct, testified that he requested light duty due to a hand injury; that his foreman said none was available in that department, but to see Superintendent Cook; that Cook assigned him to light duty in the toolroom for 1 week, at which time there was no further need for him, that Drew, who had no such light duty available, again suggested he see Cook, which he did not do; that Carpentry Foreman Serna said he could use Cox for light duty, adding, "You're one of those Union f--, ain't you"; and that he asked for a leave of absence without pursuing the Serna offer and without seeing Cook about other light- duty work. On cross-examination, Cox admitted that his hand injury was not work related, but resulted from his knocking a man unconscious in a barroom fight in Janu- ary; that he had been discharged by the Company two times before and had threatened Cook's life with a hammer, that his friend Drew had gotten him rehired and had always tried to protect his job; and that he had received a warning and had been talked to many times before regarding attendance. Supply Room Foreman Willis testified that Cox and other employees were assigned light duty in the ware- house if that work was available; that Cox was returned to his department when the warehouse ran out of light- duty work, and that Cox's union activity played no role "whatsoever" in the decision. Personnel Manager Stewart testified that company policy was not to make work for employees injured off the job and that others, apart from Cox, similarly were not provided with light duty. This allegation is dismissed. For reasons set forth in section 11,E,4, the testimony of Cox, particularly that re- garding the Serna reference to Cox's union sympathies, cannot be credited On the other hand, Stewart, for rea- sons set forth in section II,B,l above, is credited. Willis appeared to be a candid witness and his testimony was consistent with other credited evidence relating to work in the supply room and company policy. The fact of the matter is that the Company appeared to go out of its way to find work for an employee with a poor work record and nonwork-related injury and that Cox volun- tarily took a leave of absence rather than pursue other avenues of light-duty work. Assuming the fact of union activity and company knowledge, I nevertheless find that the Company's actions in this regard were not related, in whole or in part, to that protected activity. 18. Assignment of "onerous" duties to McDougal Paragraph 15(f) of the complaint, as amended and clarified, alleges the unlawful assignment of bathroom cleaning duties to welder McDougal on June 2. McDou- gal testified on direct that Quarterman Vermuelen made the assignment; that, when he refused, it was counter- manded immediately by Foreman Turk; that thereafter he and other welders were temporarily assigned to other trades in which employees were shorthanded and were required to work overtime to complete the Grand Re- public; that he and others also had been assigned non- welding duties such as scraping grease and hauling tim- bers; and that he told his superiors he would rather be laid off than do any such nonwelding work. On cross-examination, he admitted that other trades- men had cleaned bathrooms before; that, when he re- fused, it was performed by another welder; that he told the Company he would rather be laid off than clean grease and haul timbers; and that, despite a recent call from the personnel office to return and fill out an appli- cation, he "couldn't make it." Vermuelen, Turk, and Superintendent Crowel each testified, without contradiction, that all tradesmen in the production area were periodically assigned bathroom cleaning duties on a rotating basis This allegation must be dismissed. The rotating assign- ments had been the company practice and were made in a nondiscriminatory manner. It should be noted that the General Counsel specifically limited the allegation to bathroom cleaning duties; there is no allegation that the assignment of degreasing or timber hauling duties or the requirement of overtime were unlawful as applied to McDougal. This allegation simply is without any founda- tion in fact or in law. 19. Policy of monitoring productivity Paragraph 15(g) alleges that the Company, in mid-Jan- uary, instituted an unlawful, ad hoc policy of monitoring welders' productivity. Welder Danforth (laid off May 27, 1983) testified, on direct, that in January, after he and Supervisor Turk had had an argument, Turk marked the point where Dan- forth and others started welding that day, stating he would return in a couple of days to see how far the work had progressed; that Turk had never done that before; that Turk did not return to observe the progress; that no discipline was given, and that Turk made no ref- erence to the Union. Foreman Turk testified credibly (see sec. II,B,2) that marking a job to see how much work a welder per- formed was a longstanding practice of his when he felt a welder was not producing, and that union considerations were not involved. This allegation is wholly without foundation in fact or in law. Throughout this record there is uncontroverted evidence of comparisons made in the productivity of em- ployees and of discipline taken against certain employees whose productivity was not on a par with the "norm." Yet the General Counsel does not allege or suggest that such practices (common in every employment situation in every industry) are unlawfully motivated . It strains OFFSHORE SHIPBUILDING credulity to suggest that this chalk-marking practice is somehow unlawfully motivated The existence of an or- ganizing drive does not serve to strip an employer of his right to conduct his business and to direct his work force. 20. Objection I-Stewart's preelection statements Union Objection 1 alleges that, at three employee yard meetings conducted in the 3-week period prior to the election, Stewart told employees they "would have to strike" if they chose the Union and showed a film to the same effect.' Fitter Pugh (discharged April 14, 1983) testified that, at the second of the three meetings, Stewart distributed and posted literature regarding strikes at other yards and said that if a union came in "you go on strike" and that if there were no union there would be no strikes; and that, at the third meeting, a film showed scenes of strike violence and employees stating they would not vote for the union again. On cross-examination, he testified that Stewart, at the second meeting, did not say "if the Union came in, you could go on strike." Pipefitter Cox and fitter helper R. Caro gave similar testimony. Personnel Manager Stewart credibly (see sec. II,B,1 above) testified that the film was a CBS documentary, "Strike Town USA," which aired both sides of a labor dispute by filming discussions at the union hall and inter- viewing company officials, that a question-and-answer period followed the film; that Stewart said that no one wanted that kind of a situation and that he hoped good judgment would prevail; and that the possibility of a strike at the yard if the Union were selected was never discussed Assistant General Manager Childress corrobo- rated this testimony (see sec. 11,E,8 for credibility find- ings re Childress). The scope of this objection, as specified by counsel for the Petitioner at the hearing (see fn. 1 above) is limited to a prediction of a strike made verbally by Stewart and emphasized through the documentary film. Argument of counsel which goes beyond that scope is disregarded. Objection 1 is overruled as unsupported by the credi- ble evidence The testimony of Cox and Pugh is not credited for the reasons set forth in sections II,E,4 and II,B,5. I therefore find and conclude that no such threat or prediction was made, that calls for the exercise of good judgment and the use of films depicting, impartial- ly, the anatomy of a labor dispute are privileged employ- er conduct under Section 8(c) of the Act, and that the possibility of free employee choice was not negated. I Because the Petitioner's objections were couched in general, nonspe- cific terms, the Petitioner was asked at the hearing to give specifications of those objections not already encompassed by the unfair labor practice allegations Those unfair labor practice allegations have been considered in secs 1I,B,C,D, and E(l)-(19) and will not be considered further Secs II,E(20)-(25) consider only that objectionable conduct not included in the unfair labor practice allegations Postheanng brief arguments of the Peti- tioner which go beyond the scope of the objections as clarified are disre- garded The Respondent's "Motion to Reopen Hearing of April 10, 1984," requesting that the hearing be reopened to meet one of the Peti- tioner's "new" contentions in connection with its Objections 5 and 7, ac- cordingly is denied 21. Objection 2-Childress' warnings of no orders and closure 553 Objection 2, as clarified at the hearing, alleges that As- sistant Manager Childress, at three employee meetings, warned that the Company could get no orders if the Union came in and that the yard "probably" would have to close if the Union came in Fitter Pugh (discharged April 14, 1983) testified about Childress' remarks at the first of the three meetings prior to the election. other yards have closed or laid off em- ployees; a union not needed at this yard; and good for management to wake up and make improvements He did not testify as to probable loss of orders or closure. Pipefitter Cox gave similar testimony. Their testimony is not credited for the reasons set forth in sections II,B,5 and II,E,4, above. Personnel Manager Stewart's credible testimony (see sec. 11,B,1) concerning the meetings which he and Chil- dress conducted is set forth in section II,E,12 above and is incorporated herein. Childress gave similar testimony. that employees were advised of the depressed state of the industry and the market glut and that job security depends on a quality product at competitive prices; that he did not warn of or predict closures, layoffs, or loss of contracts if the Union were voted in; and that he said the Company would "attempt to continue operations and at- tempt to negotiate contracts and continue to build ships." His testimony is credited for the reasons set forth in sec- tion 11,E,8 above. Objection 2, as clarified at the hearing to allege only loss of orders and probable closure, is overruled for want of credible evidence. That job security depends on a continuation of this highly competitive business is self- evident and employer reminders to this effect are pro- tected under Section 8(c) of the Act. W & F Building Maintenance Co., 268 NLRB 849 (1984). 22. Objection 3-The February 1983 pay raises Union Objection 3 alleges that Superintendent Cook, in late February 1983, gave McDougal and R. Caro a raise for the purpose of influencing their votes in the March 18 election. Reference in the Petitioner's brief to pay raises to two other hourly employees is disregarded as outside the scope of the objection and as representing issues which were not litigated. McDougal testified that he was given a 50-cent-an- hour raise in late February and, 2 weeks later just prior to the election, another 35-cent raise. Caro gave similar testimony, adding that Cook said at the time, "You de- serve more, I don't give a damn about the Union." Superintendent Cook testified that McDougal and others were given raises in accordance with usual proce- dures which were developed by the Company as it grew "from a sandbox." He testified that paperwork delays often resulted in the raises taking effect as long as a month after they were granted; that the Union was not considered ("no way of knowing if McDougal was in the Union"); that Caro's raise was in keeping with a policy of providing an incentive to procure better attendance; and that McDougal, who had been hired originally at a second-class level, was given the raise when he proved 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD himself during a probationary period . His testimony was uncontrovei ted Generally speaking, the granting of benefits by an em- ployer during a union campaign may constitute an 8(a)(1) violation warranting a rerun election . NLRB v. Exchange Parts Co., 375 U.S 405 (1964). However , it is not, per se, grounds for setting aside the election; the inquiry is to determine if the wage increase was governed by factors other than the pendency of an election . Performance Measurements Co., 148 NLRB 1657 ( 1964). In granting- and withholding-benefits , an employer is bound to act as though the union were not in the picture Essex Inter- national, 216 NLRB 575 (1975). The credible and uncontroverted evidence here estab- lishes that this shipyard , whose work force more than quadrupled in a 6-month period, had not yet established a rigid policy or practice concerning pay raises . A great amount of discretion was vested in supervisory person- nel, who were trying to build a reliable force of qualified workers by giving wage inducements to reduce absentee- ism and to reward productivity In addition , the evidence is clear that , as a result of the yard's rapid growth, pa- perwork was unable to keep up with decision making. Thus, individual wage increases lagged far behind super- visors' decisions to grant them In this case, the increases to two hourly employees came during the critical period following the filing of the petition on January 31, 1983. There is no suggestion that these two individual in- creases were pretexual or not warranted. Indeed, neither employee testified that their increase was unexpected. Nor were the increases of the across -the-board variety which more likely would be expected to influence the more than 200 unit employees. Considering the total ab- sence of unfair labor practice violations before or after the petition, the "business as usual" attitude of manage- ment at the yard, and the absence of evidence that other employees knew of the raises, I find and conclude that the granting of small wage increases to two hourly em- ployees was not motivated , in whole or in part, by a desire on the part of the Respondent to influence the vote; that it was in accordance with company "practice", and that, viewed objectively , it could not have created an atmosphere which could prevent or impede free em- ployee choice Sewell Mfg. Co, 138 NLRB 66 (1962) 23 Objections 4 and 8-Other promises of benefits Objections 4 and 8 allege promises of benefits by com- pany officials Pugh testified that, at the first employee meeting, Chil- dress hinted at improved conditions and new lights in the shipyard; that Tenore urged employees to voice com- plaints and agreed to the relocation of a timecloc.c, bo- nuses, and training for supervisors and leadmen, and that the company president, at a ship-launching party, prom- ised to treat employees better "because we don't want to go through this Union shit every year." Pipefitter Cox also testified about promises of improved working condi- tions. They gave no testimony concerning a promised bonus and, in any event, for reasons set forth in sections II,B,5, and 11,E,4, I am unable to rely on their testimony. This, of course, completely disposes of the allegations as to statements of the company president (whose name was unknown, who worked out of New York, and who did not have any involvement in the day-to-day work of the hourly employees) while drinking beer with several em- ployees. Night Superintendent Crowel testified that these im- provements, necessitated by the rapid increase of the work force and the poor conditions of the yard which the Respondent had acquired, were discussed as early as May 1982; that lighting for the night shift was ordered in 1982, but not installed until March 1983 ; that vending machines and picnic tables were planned in 1982, and that these future improvements probably were mentioned to employees because Vice President Tenore liked to keep employees informed of future plans. Tenore con- firmed that lights were ordered in 1982 as a part of the yard's development and that picnic tables(which he in- stalled in other yards which he directed) were discussed and planned for also in 1982. Assistant General Manager Childress testified that, since the Company was a new yard with growing pains, there were plans for superviso- ry training regardless of whether the Union came in. Their testimony is credited for the reasons set forth in sections 11,B,4 and 1, and II,E,8. I find and conclude that the improvements (new park- ing lot with security, lighting for the new night shift, picnic tables, etc.) were planned in 1982 and, in the normal course of things (planning, purchasing, construc- tion, and installation), were not in place until 1983; that, given the rapid growth of this new yard in 1982, supervi- sory training was contemplated in 1982, and that these improvements and training plans were not motivated by a desire to influence the employee vote. In this respect, the Petitioner confuses natural new company growth and development with vote purchasing and a strong employ- er desire to remain nonunion with union animus. Objections 4 and 8 are overruled 24. Objection 5-"Deduction" of union dues Objection 5, as clarified at the hearing, alleges that "the last paycheck received by the employees prior to the election, the Company deducted what was allegedly union dues from that paycheck; gave the employees two paychecks with a note implying that what they had de- ducted would be required if they voted for the union." Posthearing argument of the Petitioner as to "misstate- ments" and "misrepresentations" are disregarded as out- side the scope of the objection. There is no factual dispute and the Respondent con- cedes that two checks were issued, one representing the cost of union dues, the other for the balance of the total earnings due for that pay period. No moneys were de- ducted. Board law is clear that employer reminders to employ- ees that acquiring union membership necessarily involves monetary considerations are unobjectionable Patchett's Bus Transpnrtation, 253 NLRB 996 (1981). Objection 5 is overruled. 25. Objection 7-Speech denouncing the Union Objection 7, as clarified at the hearing, alleges the un- lawfulness of speeches given by the Company's president OFFSHORE SHIPBUILDING and personnel manager Stewart to the employees during a ship-launching ceremony denouncing the Union as no good and stating that there was no need for a union in the yard Original allegations of a premature ship launch and the serving of beer to influence the vote were aban- doned. Employees Pugh and Cox, whose testimony I am unable to rely on for the reasons set forth in sections II,B,5 and 11,E,4 above, testified that the ship was launched prematurely (i.e., not finished) immediately prior to the election; that free beer was served, and that company officials said they did not need a union "to tell us how to run our business" and urged the employees to vote "right" and to "vote NO tomorrow " The undisputed evidence is that all ships are launched 70-75 percent completed because certain work can be done only after the ship is in the water Objection 7 is overruled for want of credible evidence relating to the subject matter of the employer speeches at the launch In any event, Section 8(c) of the Act makes privileged such expressions of opinion, unaccompanied by threats or promises, as to the value of unions to the work force W & F Building Maintenance Co, supra. Iii. ELIGIBLE VOTERS The 28 challenged ballots fall into 3 categories. 3 em- ployees whose January 1983 discharges are alleged to be unlawful, 21 leadmen, and 4 other employees claimed not to be in the unit. As to the three discharged employees, counsel agree that their eligibility is dependent on the ultimate findings concerning the lawfulness of their discharges, discussed in section II,B above Their discharges having been found to be lawful, they are ineligible to vote in the March' 18, 1983 election. As to leadmen, there is no factual dispute as to their responsibility and authority, except as to the issuance of discipline. Work at the shipyard is performed essentially by a number of traditional craftsmen. electricians, pipefit- ters, shipfitters, painters, welders, fabricators, and car- penters Directing the work of those employees, from the lowest level upward, are leadmen, quartermen, and fore- men, the last two of which admittedly are supervisors Their benefit and vacation plans are identical to those of the hourly employees, they are hourly employees and punch the clock, they do not attend meetings of supervi- sors or staff social functions; and they wear hardhats of the same color as other hourly employees They issue daily work assignments and monitor performance. They do not work with the tools and have no authority to hire, fire, lay off, promote, evaluate, or excuse absences As to discipline, they make recommendations but have no authoirty to impose discipline unilaterally In this con- 555 nection, it is important to note that the General Counsel does not allege leadmen to be supervisors (par 12(b) of the complaint was voluntarily dismissed by the General Counsel when it became apparent that the alleged threat was made not by a quarterman as alleged, but by a lead- man) and that union International representatives permit- ted leadmen to attend organizational meetings There is evidence of a warning slip signed by a leadman. That in- dividual was terminated prior to the start of union activi- ty; he lacked authority to issue the warning, according to the credible testimony of his then supervisor; and, on this record, the incident was a unique and isolated one. For the reasons set forth in section II,B,2, I am unable to credit the testimony of Davis that a foreman instructed a leadman to discharge an employee That allegation was encompassed in paragraph 9 and is dismissed above. I am also unable to credit the testimony of Kronz (involved in the events which led to the discharges of Caro and Davis (sec. II,B,1 and 2 above)) that a leadman told him he was instructed by the night superintendent to fire union supporters . He was an unconvincing witness and his testimony was in conflict with other credible evi- dence as to a leadman's lack of authority to issue disci- pline. Possessing none of the traditional authority of su- pervisors, lacking authority to independently direct the work force, being themselves under the direct supervi- sion of quartermen and foremen in the assignment of daily tasks, and being categorized by management with hourly employees in terms of hourly rates of pay, bene- fits, and vacations, leadmen at this shipyard, I find and conclude, are not supervisors within the meaning of Sec- tion 2(11) of the Act and, thus, are eligible voters in the March 18 election. As to the four remaining employees, I find and con- clude that they do not share a community of interest with other unit members and are not entitled to vote in the March 18 election. Kalamazoo Paper Box Corp., 136 NLRB 134 (1962). Parts department clerk Raso checks out parts to employees and travels outside the yard; he does not work with the tools; he wears a hardhat of su- pervisors' colors, and his skills are unrelated to those of other unit employees. Quality control man Roberts in- spects welds and directs faulty welds to be redone; his hardhat is the color of supervisors'; and he does not work with the tools. Office clerk Phillips works in the main office, picks up parts, and takes employees to the doctor. She does not work with the tools. Sharp, a draftsman in the lofting department, similarly does not work with the tools. In view of the fact that 88 votes were cast for the Pe- titioner and 113 against, the 21 ballots cast by leadmen are not determinative of the outcome of the election. [Recommended Order for dismissal omitted from pub- lication.]