Hoboken Shipyards, Inc.

HOBOKEN SHIPYARDS 1507 Hoboken Shipyards, Inc. and Joel Fredericson. Case 22-CA-12558 27 August 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS :HUNTER. AND DENNIS On 31 December ^ 1984 Administrative Law Judge Winifred D. Morio issued the attached deci- sion. The Respondent. and the General Counsel filed exceptions and supporting briefs, and the Re- spondent filed a reply brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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 conclusi_ons2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent,- Hoboken Shipyards, Inc., Hoboken, New Jersey; its officers, agents, successors, and assigns, shall take the action set forth in the Order.- i The Respondent has excepted to some of the judge's credibility find- ings 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 2 In adopting the judge's conclusion that the Respondent violated Sec 8(a)(3) and (1) of the Act by refusing to hire employee Fredericson, we find that the evidence here presents a dual-motive situation However, we conclude, as did the judge„that the Respondent has failed to meet its burden under Wright Line, 251 NLRB 1083 (1980), to establish that it would have taken the same action with respect to Fredericson even absent his union activities Accordingly, we do not rely on the judge's pretext analysis Member Dennis agrees with the judge that the Respondent refused to hire Fredencson only for unlawful reasons, but emphasizes that the Board's test in Wright Line, 251 NLRB 1083, 1089 (1980), enfd 662 F 2d' 899 (1st Cir 1981 ), cert denied 455 U S 989 (1982), applies to "all cases alleging violation of Sec 8(a)(3) or violations of Sec 8 (a)(1) turning on employer motivation," including both "pretext" and "dual motivation" cases The General Counsel, as the judge found, presented a prima facie case under Wright Line, which the Respondent failed to rebut with credi- ble-legitimate reasons for its failure, to hire DECISION - STATEMENT OF THE CASE WINIFRED D. MORIO , Administrative Law Judge. This case was tried before me on January 30, and 31, and February I 1 and 2, - 1984, at Newark, New Jersey. The complaint, which - was issued by the Regional Director 275 NLRB No. 212 for Region 22 on September 30, 1983, alleged, in sub- stance, that Hoboken Shipyards, Inc (Respondent/- Company) violated Section 8(a)(1) and (3) of the Act by failing- to hire Joel Fredericson and Thomas Jefferies be- cause they engaged in certain protected union activities, including filing grievances, enforcing the collective-bar- gaining agreement, and seeking union office and because they filed or assisted in filing a complaint with the Equal Employment Opportunity Commission (EEOC) and a class action suit against Bethlehem Steel Corporation (Bethlehem Steel). The answer, filed by Respondent, denied the commission of the alleged unfair labor prac- tices and, affirmatively, alleged that Respondent was not a successor to Bethlehem Steel and was not obligated to hire former Bethlehem Steel employees All parties were given a full opportunity to participate in the proceedings, to cross-examine witnesses, to argue orally, and to file briefs. Briefs were filed by both par- ties. On the entire record in the case -and my observation of the witnesses and after careful consideration I make the following FINDINGS OF FACT I. JURISDICTION Based on the pleadings and the admission of the par- ties, I find that Respondent is an employer engaged in commerce within the ' meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION The parties admit, and I find, that Industrial Union of Marine and Shipbuilding Workers of America, Local 15, AFL-CIO (Union) is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Background Bethlehem Steel had collective-bargaining agreements with the Union for many years, which agreements cov- ered all its employees at the shipyard at Hoboken, New Jersey. In December.1982 Bethlehem Steel sold the ship- yard to Respondent and on January 1, 1983, Respondent began its operations at the shipyard. Respondent, under the terms of-the purchase and sales agreement between the parties, purchased only the personal and real assets of Bethlehem Steel and reserved the right to hire its own employees and to regulate its labor relation policies. The agreement also . provided that Respondent would not consider an employee's'seniority with Bethlehem Steel as a factor in its decision to hire employees and it further stated that Respondent did not succeed to or assume the collective-bargaining agreement in existence between Bethlehem Steel and the Union. Although Respondent was not obligated to hire Bethlehem Steel employees it did hire, as part of its initial work force, approximately 103 former Bethlehem Steel employees, in addition to other employees. Respondent granted recognition to the Union in December 1982 because the Bethlehem Steel's 1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD former employees constituted a majority of Respondent's initial work force, and Respondent entered into a collec- tive-bargaining agreement with the Union, effective from December 1982 to December 1983. The-total number of applications for employment filed by both former em- ployees of Bethlehem Steel and by other - individuals numbered -between 1500 and 2000 and from this number approximately 500 to 600 individuals were hired. In the rigging department, the department in which Frederic- son and Jefferies had been employed as riggers at Bethle- hem Steel, Respondent hired 61 former Bethlehem Steel employees.' However, it did not hire 70 of the former employees, some of whom had greater seniority as rig- gers than did Fredericson In addition to hiring former Bethlehem Steel rank-and-file employees, Respondent also hired some of Bethlehem Steel's supervisory staff, including Joseph Cangelosi, as assistant general manager, Donald Finley, as director of industrial ° relations, and Ray Govic, as rigging foreman The General Counsel contends that these individuals made the,decision not to hire Fredericson and Jefferies because of their 'knowl- edge about the Union and other protected activities of both individuals while they were employed at Bethlehem Steel. The record establishes that the operation of the ship- yard, while under the control of Bethlehem Steel, had been unsuccessful. for some time before November 1982 when Eliot Braswell, an officer of Respondent, decided to purchase the yard. In an effort to make the operation successful, Respondent instituted a number of changes. Thus, major reductions were made in the expenses for fuel and lighting at the shipyard The supervisory staff under the Bethlehem Steel operation. had numbered 160 but Respondent limited its supervisory staff to 60 individ- uals In addition , and with the Union 's agreement, the number of shop stewards-was reduced,- the lunch period' was shortened, the length of vacation period also was re- duced, and the employees were not assigned to perma- nent shifts but were assigned as needed Cangelosi testi- fied that as a matter of self-interest he was determined to gain greater control over the operation at the shipyard and to put together the best possible organization and, with this goal in, mind, he instructed the foremen of each department to provide him with a list "of the best, most dependable, easiest to supervise, most skilled , most pro- ductive, most supportive" individuals. He wanted people who would "put out the effort to make " our second chance a successful chance " Cangelosi also told the supervisors not to list those in- dividuals who' had been absent frequently, or were drunkards, thieves, malcontents, refused to cooperate, or wanted things their own way Ray Govic, who had been rigging "foreman with Bethlehem Steel and had a .similar position with Respondent, '-provided a list of 20 names in response to Cangelosi's,request. The names,of Frederic- son and Jefferies were not on that list - i The number of former Bethlehem Steel riggers hired by Respondent was 61 and the other individuals hired numbered about 28 B The Prior Activities of Fredericson and Jefferies Joel Fredericson commenced his employment with Bethlehem Steel in 1976. In about the spring of 1978 Fre- dericson began to become active in internal union affairs and in 1979, he campaigned on behalf of a 'fellow employ- ee, Mike Armenio, who was seeking the position of shop steward. Fredericson testified that due to the fact that supervisors voted in the election for shopsteward, he circulated petitions challenging t'heir 'participation in the election. In addition, he distributed literature -to fellow employees in which'he urged employees to become-more active in internal union matters and m - which ' he criti- cized the Union for failing to take a stronger position against what he perceived to be contract violations by the Company. In February 1981, Fredericson was elect- ed to the position of night-shift shop steward for the rig- ging department and he continued in that position until he was laid off in December 1982 During his tenure as shop steward, Fredericson filed numerous grievances and many of these grievances were resolved in favor of the aggrieved employee Basically,'the grievances related to supervisors performing riggers work, violation-of seniori- ty rights, and the failure to pay employees for perform- ance of "dirty" work.2 Donald Finley, director of labor relations, testified that the type and number of grievances filed by Fredericson were similar to the type and number of grievances filed by other shop stewards. Govic cor- roborated Finley's testimony on this point.3 Fredericson also testified that in July 198Lhe was nominated for the position of executive secretary of the Union but was dis- qualified from running for the position by the Union In the letter, which he forwarded to the Union's executive board about being improperly disqualified, Fredericson noted that John Iwasiuta and Michael Armenio, who had sought the, positions of president and trustee, respective- ly, also had been improperly disqualified These two in- dividuals were hired by Respondent, as were Girolamo Calo and Manuel Alvarado who signed the letter of pro- test to the executive board. A second election was held in September 1982 and this slate included Fredericson, Jefferies, Jose Alvarado, and Thomas Stokes Respond- ent did not hire these four individuals Alvarado was not hired because he failed to pass the- physical examination and Stokes was not hired because he had =a drinking problem and a poor performance record. Alvarado and Stokes apparently did not file charges.4' The reason for not hiring Fredericson and Jefferies will be' discussed - below ' • In addition to these activities, Fredericson investigated a grievance filed by Jefferies in May 1982 with- respect 2 Employees were paid additional moneys for performing work which was considered of a particularly dirty nature 9 Govic testified that several of the shop stewards -who had filed nu- merous grievances were hired by Respondent, and others who had filed only a few grievances were not hired because of poor work performance This testimony was not refuted , , . 4 Respondent hired Gerry Calo, Joseph Centeno, . Larry" Piston, and Norman Young, all of whom had run unsuccessfully for union office On the other hand, employees C Thompson, D Hanks, A Sillette, J Murray, I Wilson, and J Wingert, who held union positions -as shop stewards , were not hired because of medical reasons or poor work per- formance - HOBOKEN SHIPYARDS to the failure by Bethlehem Steel to.grant Jeffries his se- niority status in accordance with the provisions of the contract The grievance was processed and Jefferies was given his proper seniority, however, the parties were unable to resolve Jefferies' "backpay claim Subsequently, Jefferies and other employees, who Fredericson had dis- covered in the course of investigating Jefferies' claim had not received their correct seniority status, filed class suits" which- were settled by Bethlehem Steel.,It is con- ceded that Cangelosi, Finley, and 'Govic, in their super- visory positions with Bethlehem Steel, knew about these activities of Fredericson and Jeffries. IV. THE ALLEGED EVIDENCE OF ANIMUS George Murch had been employed by Bethlehem-Steel in the rigging department for many years and at one point he had been employed as a supervisors According to Murch, at some point in 1981 when "Fredericson was seeking the position of shop "steward or some other union position, he overheard a discussion between Govic and another supervisor, Mel Cumberbatch6 about whether Fredericson would be elected., During the conversation, Govic stated that Fredericson would not be; elected be- cause the men did not like him and he was a communist. Murch claimed that he heard this. statement made by Govic on several occasions around the time Fredericson was seeking the position of shop steward or some other union position in 1981 7 Murch also claimed. that Govic, Finley, and other supervisors, on several , occasions, around the' time of the election, stated that Fredericson "would be trouble." On another occasion Murch over- heard Finley, Phil Ditmar, president of the Union, and John Kullen, a union representative, discussing Frederic- son. According to Murch, one ' of the three, he was unable to state which one, said that Fredericson "would be trouble" if he became shop" steward Murch also testi- fied Finley, Ditmar, and Kullen spoke to him about the election and said to him, "see what you can do, don't let Fredericson in.", - Joseph Jugovich, also a former employee of Bethle- hem Steel, testified, that he' heard Govic, ' on several un- specified occasions, refer to Fredericson as a commu- nist 8 He also testified , "They all used to call him a com- munist and I used to just laugh and like it just , I,think they just used the word to say something, I don't even think they knew what the word meant. And 'they just said that if he gets in they're"going to break the union and different things like that 5 Murch was removed from his supervisory position because he had a drinking problem Govic refused his request for employment with Re- spondent because of that problem 6 Cumberbatch had been employed by Bethlehem Steel but was not employed by Respondent It appears that Cumberbatch died at some point prior to the hearing As noted during the hearing , any statements made by Cumberbatch while employed by Bethlehem Steel are not rele- vant to the issues in the case I, therefore , have not considered statements 'allegedly made by Cumberbatch. to his brother John Herbert . It is unclear from Murch's testimony whether these alleged state- ments were made in February 1981 when Fredericson was seeking the shop steward position or in mid-1981 when he sought the position of ex- ecutive secretary 8 Jugovich also was not hired by Respondent 1509 Govic did not deny that he had referred to Frederic- son as a communist, nor did he deny " that he had said that Fredericson could cause trouble. Finley testified that he heard Ditmar and Kullen refer to Fredericson as a communist and heard them refer to him and others on the opposition slate, including John Iwasuita, as trouble- makers. Finley denied that he had referred to Frederic- son as a communist and denied that he had agreed with others that Fredericson was a communist. In August 1982 Fredericson circulated ' a letter in which he criticized management about the safety condi- tions at the yard and in which he implied that the lack of concern by the management of Bethlehem Steel about these conditions had cause the death of an employee. Cangelosi testified that he thought the letter inappropri- ate and annoyance would be a mild term to express his displeasure about the letter . Cangelosi admitted that he was aware that Fredericson had filed grievances and had engaged in some ' activities, which he termed stunts, in- cluding the "posting of this and distribution of this, the campaign literature with everyone's picture on it." Ac- cording to Cangelosi, he was not surprised that Frederic- son's name was not on the list of riggers recommended to be hired by Govic because "he was not one of the ones that I knew we counted on to get things done." The Reasons Stated by Respondent for its Failure to Hire Fredericson and Jefferies A. Fredericson 1. Fredericson only wanted to work nights Govic had repeatedly experienced difficulty when attempting to get Fredericson 'to work the day shift when the need arose. Govic knew - this would be even more troublesome as Hoboken -intended to operate with a leaner work force and would require more flexibility of its crews. 2. Fredericson frequently . refused to work overtime. Govic also realized that having riggers who were willing to work overtime would be essential to meeting the new company's goal of greater efficiency. '3. Fredericson constantly complained that the rigging work assigned to him was too dirty or too heavy. He 'frequently demanded that another employee be assigned to assist with what he considered "heavy" work, al- though other riggers were able to handle the assignment alone. In short, Fredericson was difficult to work with because he would not accept reasonable assignments without .a hassle. 4. Fredericson's abilities did not measure up to the em- ployees selected . Although Fredericson was a first class rigger, Govic did not consider him to be a, top flight rigger because he had difficulty 'doing so many normal rigging duties "without assistance which other riggers did not require. 5. Fredericson often avoided undesirable assignments by feigning illness. On several occasions when Govic as- signed Fredericson a , dirty job in the engine room or some other dirty area of the ship, Fredericson , would work for a short period of time, then go to the dispensa- ry and go home "sick.". 1510 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD 6. Fredericson was absent frequently. Govic found that Fredericson's absences often coincided with occa- sions when Fredericson knew he would be doing dirty or heavy work. Fredericson's calling in "sick" or with "home problems" made Govic's job much more difficult as: he attempted to cover Fredericson's job. 7. Fredericson did not like working at the Bayonne drydock facility. Hoboken (and Bethlehem formerly) also operates out of a drydock in Bayonne.. It is often neces- sary to send employees to Bayonne to work. Fredericson complained about those assignments and about transpor- tation to and from Bayonne. Govic knew that this would be an even greater problem given Hoboken's desire to be more efficient and flexible.-. 8. Fredericson would not produce 8' hours of work for 8 hours of pay. Govic .felt that Fredericson's avoidance tactics of complaining, going to the dispensary, constant- ly requiring assistance, etc., resulted in about one-half day's work being accomplished by Fredericson in a full day. B. Jefferies 1. Jefferies, on several' occasions, reported to work after drinking either before shift or during lunchbreak. At times Govic suspected he was drinking during the shift. When Jefferies was under the influence, he became antagonistic and difficult to supervise. Although Jefferies was never so drunk that he could not work, his drinking was a problem for Govic. Govic knew that while Bethle- hem had "turned its head" to this type of problem, Ho- boken would not do so Jefferies is only one of many rig- gers whose drinking was a factor in their being excluded from the list of top candidates. 2. Jefferies was a foul-mouthed, abusive employee who verbally attacked Govic on many occasions. While use of slang language is not unusual in a shipyard, the manner in which it is used can be particularly offensive. Govic was daily the subject of Jefferies' verbal attacks. For. example, if Govic gave Jefferies an assignment he did not like, a typical Jeffenes' reply would be: "You goddamn mother-fucker. Why do I get all the fucking shitty assignments? You must be fucking crazy." Al- though Govic took the abuse as a Bethlehem supervisor, Jefferies' foul mouth was a prime factor in Govic's rejec- tion of him as a top candidate. Jefferies' latest tirade at Govic occurred in the last few weeks when Jefferies came to the yard and confronted Govic saying, "You goddamn mother-fucker. If I catch, you out here on the street I'm going to kill your mother-fucking ass." Frank- ly whatever Jefferies' chances of employment at Hobo- ken were prior to that vulgar death threat, they' are vir- tually foreclosed From Hoboken management's perspec- tive, a memberof management is not to be threatened in that fashion and certainly will- not be required to hire or supervise anyone who'threatened him in that fashion. 3. Jefferies' general performance as a rigger- was not considered by Govic 'to be as good as the people hired. Jefferies' performance, of course, included' his antagonis- tic manner and the difficulties it caused from a_manage- ment perspective. 4. Jefferies seemed to consider his moonlighting jobs more important than his job with Bethlehem. Govic fre- quently met resistance in getting Jefferies to work over- time or on days because of other jobs Jefferies had. 5. Jefferies did not like to work any shift but the night shift and often refused day-shift work . This was appar- ently the result of his moonlighting. However it caused Govic scheduling problems at Bethlehem which he knew would be even greater at Hoboken. 6. Jefferies did not like to work overtime , apparently because of his moonlighting.: - - - • --. Cl ?-_ . 7. Jefferies did not like to work at the Bayonne facility and resisted assignments there. 8. Jefferies was a constant complainer who was diffi- cult to supervise. In addition to the above reasons for not hiring Jeffer- ies, Repsondent also claimed that when Jefferies filed his application for-employment he had been on layoff status from Bethlehem Steel since June 11 , 1982. After he filed the application he did not pursue it until he updated it in June 1983, while other riggers who filed applications checked repeatedly to see if work was available .- More- over, Jefferies had a felony conviction on his record which would require Respondent to seek security clear- ance for him because the Company planned to work on Navy ships-and such work required clearance. Respond- ent had received applications from other - qualified appli- cants for whom such clearance would be unnecessary. An Examination of Respondent's Reasons for the Failure to Hire Fredericson and Jefferies - A. Fredericson • Fredericson applied for a position with Respondent in December 1982. According to Fredericson, when- he filed his application he spoke to Finley about the possi- bility of being hired and Finley responded that the se- niority gained by employees at Bethlehem Steel would not determine the employees to be hired by Respondent, employees would be hired based on their skills and abili- ties. Finley also told him that he had -no reason to be- lieve that Fredericson would not be hired and that he would be called when there was available work. Freder- icson claimed that he spoke also to Govic about the pos- sibility of employment and Govic stated that he had no problem in hiring him but he would have to' discuss the matter with Finley.9 According to Finley, before hiring commenced, he had explained to the foreman of the de- partments the type of employees to be hired and, thereaf- ter, he had left the decision of the person to be hired to the discretion of the foreman. Thus, when Fredericson inquired about the possibility of employment Finley claimed that he responded that the selection of the spe- cific individual 'to be hired was within the control of the foreman and it depended on the • work available, the number of men needed, and the foreman's judgment as to those individuals best qualified. Govic also denied the statements attributed to him by Fredericson, contending' that his only response was that the work was slow and 9 Fredericson apparently did not explain to Govic that he had dis- cussed the matter with Finley HOBOKEN SHIPYARDS that "he stood the same way as everybody else and they not hire." In January 1983 Fredericson was sent by Respondent for a physical examination, which was necessary before an employee could be considered for permanent employ- ment At that time Fredericson was asked to sign a docu- ment which stated that he would be offered employment if he passed the physical examination. Fredericson did pass the examination but. he was not hired It,appears that at least 10 other riggers, who'•were'former Bethle- hem Steel employees, also passed the physical examina- tion and they were not hired because Govic' considered that their prior work performance while employed at Bethlehem Steel had been unsatisfactory. 10 As noted, Respondent contends that one of the reasons Fredericson was not hired was because he insisted-on working only nights while employed by Bethlehem Steel and such conduct could not be tolerated under the more flexible operation contemplated by Respondent.In support of this contention, both Govic and Finley testi- fied that sometime- in 1981, before Fredericson became night-shop steward for the rigging department, he asked, for personal reasons, to be assigned only to the night shift. Finley testified that other employees made similar requests and the request were granted, if considered le- gitimate. Joseph Jugovich, who had knowledge about the shifts that individuals worked because of his position as timekeeper witli Bethlehem Steel, testified' that there' ' were several employees who worked only the day shift and other employees who worked only the night shift. In 1981 Frdericson, by virtue of his position as shop stew- ard for the night shift, had superseniority on that shift and he worked nights on a regular basis. However,-Re- spondent's representatives claim that in 1982 when there was no work on the night shift, they.offered work on the day shift to Fredericson, which he refused. Fredericson denied this contention. In 1982 there were several riggers who had greater seniority than Fredericson and who would have been entitled, therefore, to be offered avail- able work -before such' work- was offered to Fredericson.; The exhibits in evidence establish that these riggers with greater seniority did-not work the day shift in 1982. It appears that either work was not available or.'that these individuals did receive. offers of work and refused them. Notwithstanding this fact, ; several of these individuals were hired by Respondent. 12 - - Respondent contends that Fredericson frequently re- fused, to perform overtime work. It appears that,prior to 1981, Fredericson worked overtime about as frequently as did the other employees. However, after he became shop steward Fredericson did refuse to work overtime, he claimed, because he attempted to, equalize the over- time work in accordance with the provisions of the col- lective-bargaining agreement. Govic admitted that when Fredericson refused the overtime :work he said, "give, it 10 It appears -that several, former Bethlehem, Steel employees who had been, employed as riggers were not asked, to take the physical examma-, lion because Govic considered them unsatisfactory " The evidence does establish that under Respondent's present oper- ation employees are not assigned to specific shifts 12 The riggers included Arditi, Oquendo,, Ciannamea, Armenio, and Davenport '(G C Exh 3) 1511 to the other people that aren 't working that steady." Govic testified that he frequently received telephone calls from the night foreman in which the foreman com- plained about the refusals of employees to work- over- time. However, it is evident from Govic's testimony that these refusals were made by many employees and not solely by, Fredericson . In fact,. according to Govic, the problem was more difficult when 'two or more employ- ees refused the overtime work . According to Jugovich, several former Bethlehem Steel employees , including Daniels, DePinto, Duke, . Armenio, Cirillo, Lasko, Atilio, and others refused overtime work. These employees were hired by Respondent. Respondent asserts that Fredericson frequently com- plained about work assignments being either too-heavy or too-dirty, and that these complaints were unrelated to his position as shop steward . Further, on one occasion when Fredericson requested assistance , a machinist was assigned to assist him and , thereafter, Fredericson filed a grievance about the machinist working out of his trade. Fredericson claimed that, although others did complain about assignments, he did not do so on his own behalf. Rather, he complained as shop ' steward on behalf of other employees about the Company 's failure to pay the proper pay for "dirty" work and about assigning other crafts to perform rigger's work . John' Hubert , a former employee of Bethlehem Steel, testified that all the men complained about performing "dirty" work and Freder- icson, on their behalf, attempted to secure the proper pay for such work. The records reveal that Fredericson did file grievances about supervisors performing unit work and about the failure by Respondent to pay employees the proper pay for performing "dirty" work- and many of these grievances were resolved in favor of Fredericson's position. Govic testified that he did not consider Fredericson as well qualified as other riggers selected for hire because he had difficulty performing normal rigging duties with- out assistance from other riggers . Govic claimed that due to his size, Fredericson frequently requested assistance to perform tasks which other riggers were capable of per- forming without assistance.,' 3 -Fredericson admitted that on occasion he asked for assistance to, perform a task but he claimed that he frequently assisted other riggers when asked to do so. Govic agreed that other riggers also re- quested assistance at times but that Fredericson required such assistance more frequently than did the other rig- gers. Govic also admitted that there were tasks which could be performed more competently by employees with smaller physiques , while other tasks could be ac- complished more - effectively by_ employees with larger physiques. Fredericson was termed a first class rigger Although a first , class rigger was considered more knowl- edgeable about the duties of a rigger , it appears that the status was, based on' the number of years an individual was employed, rather than on their 'actual abilities. Re- spondent did hire, several former Bethlehem Steel em- ployees who were classified as second and third- class 13 Fredericson was about 5 foot 4-3/4 inches and of a slight build However, it appears that there were other riggers also of a slight build and at least one rigger was a woman 1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD riggers and several other individuals who did not possess rigging experience.14 Govic was the foreman on the day' shift and, therefore, he did not supervise Fredericson on a regular basis, but relied on the observations and com-' ments made by Mel -Cumberbatch about Fredericson. Benjamin Mahone,15 who was Fredericson's "snap- per" 16 and who worked with him, testified that Freder- icson was-a good worker with average production who did not refuse assignments. In January 1983, Bethlehem Steel gave Fredericson a letter of recommendation which stated that he was a satisfactory employee Govic claimed that Fredericson avoided undesirable assignments by feigning illness or by being absent ' when he knew that such work was to be assigned to him: Fre-- dericsoii claimed he never left work to avoid a -difficult assignment but there were occasions when his wife was ill, or giving birth, or when a robbery occurred or a pipe' broke in his home and on these occasions it was neces- sary for him to leave work. The records indicate that Fredericson was absent for-illness for -approximately 16 hours in 19,82. The records also,establish that Frederic- son was not absent in 1982 more frequently than some- other employees and was absent less frequently than others. ' Govic testified that he did hire some former Bethlehem employees who had attendance problems. Respondent claims that Fredericson refused or at- tempted to avoid assignments to the Bayonne facility. Fredericson testified that after he became shop steward he was assigned from February to June 1981, exclusive- ly, to the Bayonne facility In June he had car trouble and he asked to be assigned to the Hoboken facility and this request, apparently, was refused. Subsequently, he again had car trouble and he reported to the Hoboken facility, rather than to the Bayonne facility. He requested transportation, by a company van, to the Bayonne facili- ty and this request was refused. Fredericson filed a grievance contending that he had been discriminated against by being forced to work at the Bayonne facility, constantly, while other employees could, pick the. loca- tion where they wanted to work. He requested that his future assignments be "made on the basis of a fair and equitable system of rotation " He also requested payment for the pay he lost.when the Company refused his re-. quest for transportation to Bayonne The decision ren- dered with respect to the grievance did not find that Fredericson had been discriminated against by his assign- ment to Bayonne. According to the decision, the majori- ty of the Bethlehem Steel work in 1981' was at the Ba- yonne facility, in 1981 Fredericson had worked-approxi- mately the same amount of time at both facilities 17 and. 14 At one point Fredericson was selected to attend an apprentice pro- gram which was designed to train those employees who had potential for advancement with the Company Murch testified that the individual di- recting the program complained to him that Fredencson and others in the program refused to follow his directions is Mahone was hired by Respondent but discharged when he failed to pass the physical examination - ' 16 A "snapper" is similar to a lead foreman , it is not a supervisory po- sition - 17 Fredericson contended that he was being isolated from the majority of the riggers by being assigned to Bayonne The decision does not sup- port that assertion - other employees had worked at the Bayonne facility more frequently than had Fredericson. Fredericson's claim that he was entitled to transportation also was denied on the ground that such transportation was not provided for according to the practices and procedures existing at the shipyard Govic testified that because Fredericson avoided work, required assistance with his work more frequently than others, and constantly complained about the work, he did not work a full 8 hours for his pay and therefore he refused to hire him: B. Jefferies Jefferies, initially, testified that he had been employed by Bethlehem Steel for 18 years as a rigger. However, his employment was not a continuous one and he had several-breaks in his employment with Bethlehem Steel, at least two of which were-due to the fact that he was in prison. Jefferies applied for employment with Respond- ent and was not hired.1' At the time he applied, Jefferies' claimed that he spoke to Govic and asked him why he had not been hired. Govic responded that he did not know and told him to speak to Finley, and Govic then said, "the guys in the office don't like you." At another point, Jefferies testified that he asked Govic whether an individual had to be -Italian to work at Respondent and Govic pointed to a black man who had been hired Jef- feries claimed that in October 1983, he was called to take a physical examination and on that day he spoke with Govic. Govic asked him, "What are you doing to me? This girl got me up to here. Why did you go to the Labor Board?" The charge in the instant case had been filed at the time.19 Govic denied that he mentioned any- thing to Jefferies about the Labor Board and he claimed that his only statement to Jefferies was that conditions would be different at Respondent, there were many more rules and regulations. Respondent contends that one of the reasons it failed to hire Jefferies was his alleged use of alcohol or drugs. Govic- testified that he observed Jefferies under the "in- fluence of alcohol or drugs or whatever it is, but he was an influence of something, alright "20 Jefferies claimed that he had stopped drinking several years before the in- cidents in the instant case on the advice of his doctor. Several witnesses testified that Jefferies, as a general rule, did not drink, although he might on occasion take a drink. It appears that drinking was a common problem in the rigging department and that several employees had been disciplined for drinking or. being under the influ- ence of alcohol during working time. Several former em- ployees of Bethlehem Steel were rejected by Respondent because of their drinking habits, including Benequez, McLaughlin, Wilson, Super, Lewis, Wilson, Murch, 18 At least two other individuals who had been involved in the EEOC suits against Bethlehem Steel also applied and were hired by Respondent 19 A Board agent did speak with Govic during the investigation of the charge 20 The Gene'ral Counsel filed a motion to strike the portion of Re- spondent's brief which states that one of the reasons that Jeffenes was not hired was because of the belief by Respondent that Jefferies was under the influence of drugs This issue will be considered below HOBOKEN SHIPYARDS Stokes, Rossis, Alston, and Knight. On the other hand, Respondent did hire several employees who-had drinking problems because, according to Govic, of their skills, abilities, and availability for. different shifts It is undisputed that the use of vulgar and abusive lan- guage was common in the shipyard It appears that em- ployees used it, at times, in greeting one another and in general conversation with one another . It was also used when superiors gave assignments which were considered undesirable by employees . However, as James Emman- uel, an employee witness, testified , it generally was not used directly to a supervisor but was said as the employ- ee walked away from the supervisor. Govic testified that Jefferies constantly used vulgar and abusive language to him in a belligerent manner. Jefferies admits that he might have spoken to Govic in such a manner, and other witnesses testified that Jefferies did curse- Govic at times.21 In the summer of 1983 outside the shipyard, Jef- feries in .a loud and angry voice and in the presence of many employees, yelled at Govic and threatened to give him a "blow job" in order to get a job. Although Jeffer- ies denied that he threatened to kill Govic, as Govic claimed, Jefferies admitted that he made the above state- ment. The testimony of witnesses called by the General Counsel establishes that Jefferies was screaming and yell- ing at Govic at the time. Emmanuel testified that he told Jefferies "it wasn't right, what he said" to Govic. Em- manuel denied that he heard Jefferies threaten to kill Govic, however, he admitted that he did not hear every- thing that was said at the time. Govic testified that he did not consider Jefferies' over- all work performance to be as good as the work per- formance of the individuals he hired. Govic claimed that this conclusion was based on several factors, including the refusal by Jefferies to work overtime, his limited availability for work on other than the night shift, his re- sistance to assignments in Bayonne, and his constant complaints about work assignments. The General Coun- sel contends that the fact that Jefferies worked for many years for Bethlehem Steel and was reemployed by that company on several occasions refutes Govic's statement that Jefferies was not a good worker. Moreover, the General Counsel contends that Jefferies was seldom of- fered overtime. work or work on the day shift because of his low seniority and the fact that he worked other jobs did not mean that he did not consider his employment with Bethlehem Steel to be his primary employment. The General Counsel further contends that Jefferies did not refuse assignments to the Bayonne facility and that, generally, the complaints voiced by Jefferies concerned alleged racial discrimination in job assignments and that his other complaints about undesirable assignments were similar to complaints made by other employees.22 Jefferies testified that while employed' by Bethlehem Steel he worked for other companies during the 1970s and that he performed this work during day time. Ac- cording to Jefferies, the amount of time he worked other 21 Jugovich testified that he did not know what Jefferies said to Govic but, "All I know is, he carries on " 22 Mahone, who was Jefferies ' snapper, testified that Jefferies did not complain about assignments 1513 jobs varied from 50 to 20 hours per week. Jefferies also testified that at the- time that he filed his application with Bethlehem Steel,' employees had the option of working the day or night shift and he. requested only night-shift work. Jefferies claimed that because of -his low seniority he rarely was offered either overtime work or work on the day shift but he admitted that on occasion he 'did refuse such offers of work. Initially, Jefferies testified that he worked- at the Ba- yonne facility on the ship, OE II, in 1981 and 1982. Sub- sequently, he testified that he did not work much for Bethlehem Steel in 1981 and 1982 . 23 Jefferies denied that he refused assignments to the Bayonne facility, and Mahone, who was his snapper, testified that Jefferies did not complain about assignments to the Bayonne facility. It was Jefferies' testimony that he thought that he re- ceived the dirtiest and least agreeable assignments . Jeffer- ies, initially, testified that he did not complain about such assignments but he -then stated that it- was possible that he told Govic, "Yugo, you're fucking me, you give me all the dirty assignments."24 Respondent also claimed that it did not hire Jefferies because, unlike other applicants, he did not pursue his employment application between December 8, 1982, and June 25, 1983. The General Counsel contends that Jeffer- ies spoke to Finley or' Govic on several occasions re- garding his application. Jefferies testified that he spoke to Finley about his application 6 months after he filed his application, which would be about June 1983, and that he spoke to Govic after he spoke to Finley. At another point, Jefferies testified that he spoke to Govic about two or three times before he spoke to Finley, but he did not specify the time when he spoke to Govic. It appears that applications for employment were maintained for more than 6 months. - Finally, it is Respondent's position that it planned to do work for the United States Navy and that such work required security clearance. Respondent contends that it would require additional paper work to secure clearance for Jefferies, who had a felony conviction, and such effort was unwarranted when there were other qualified applicants who would not pose such problems. However, Finley also testified that Respondent did hire employees Miller, Nunez, Olivieri, Abreyo, Robertson, and Marti- nez, all of whom had similar convictions and who would require - specific clearance . The record fails to reveal whether the work records of these employees was other- wise satisfactory. Discussion The existing legal principles establish that Respondent was not obligated to hire the employees of Bethlehem Steel merely because it purchased the assets of that com- pany.25 Moreover, the record establishes that Respond- 23 Govic testified that the OE II, was in the Bayonne facility in 1979 and not in 1981 or 1982 24 The record establishes that other employees left work rather than perform what was considered a dirty assignment It also appears that some of the employees cursed when they received such assignments but the record fails to disclose that other employees spoke directly to Govic in the same manner as did Jefferies 25 Howard Johnson Co v Hotel Employees, 417 U S 249 (1974) 1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent reserved the right to hire its.own work force. in the Purchase and Sales Agreement it signed with Bethlehem Steel. The General Counsel does not deny that Respond- ent had the right to select its own work force, to hire or to refuse to hire any Bethlehem Steel employee. Howev- er, the General Counsel contends that that right is not. absolute because -Respondent could not refuse to hire an individual for reasons proscribed by the Act. In the in- stant case, the General Counsel asserts that Respondent refused -to hire Fredericson and Jefferies because they engaged-in union activities while employed by Bethle- hem Steel and/or because they were involved in the charges filed with the Employment Opportunity Com- mission .(EEOC). The refusal to hire these individuals, therefore, was for reasons proscribed by the Act. - It is Respondent's position -that it was incumbent on the General Counsel to establish that a prima facie case exists and this she has failed to do. Respondent also as- serts that assuming that a prima facie case was estab- lished "it was adequately rebutted by the legitimate, non- discriminatory reasons articulated by the employer in support of. its hiring decisions and the General Counsel failed to show those reasons to be pretextual." It is well recognized that it is the burden, of the Gener- al, Counsel to establish the elements of a prima facie case Thus, in Wright Line, 251 NLRB 1083, 1089 (1980), the- Board stated: - First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this_is es- tablished, the burden shifts to the employer to dem- onstrate that the same action would have taken place even in the absence of the protected conduct. The elements of the prima facie case in a' refusalto- hire situation were stated in Big E's Foodland, Inc., 242 NLRB 963, 968 (1979), as' follows: " - ` Essentially, .the elements, of a.discriminatory refusal- to-hire case are the' employment application by each discriminatee, the refusal to hire each, a showing that each was or might be expected-to be a union supporter or sympathizer, ad further showings that the employer knew or suspected such sympathy or support, maintained - an aniums against it, and re- fused to hire the applicant because of such animus. The_ record reveals that the General-Counsel has estab- lished the elements articulated in the, decision in Big E's Foodland with respect to Fredericson and some of the elements with respect to.Jefferies. Both applied for posi-, tions_ with Respondent in December 1982 and Respond- ent,refused.to hire either. individual. Although, the Gen- eral ,Counsel attempted to establish that both were disci-, dent union members.and,,,thus, presumptively they were not union sympathizers' or supporters, there is sufficient' evidence in this record to establish that Fredericson was an active shop- steward who filed several grievances while employed at Bethlehem Steel and that. Jefferies was involved in the EEOC suit filed against that compa- ny. Cangelosi, Finley, and Govic had full knowledge of these activities in their supervisory capacity at Bethle- hem Steel and also had this knowledge when the deci- sion was made not, to hire -Fredericson and Jefferies The General Counsel does not contend that at the time that Fredericson and Jefferies applied for employment with Respondent in December 1982 Respondent's repre- sentative expressed hostility toward them because of their prior ativities at Bethlehem Steel Rather, the Gen- eral Counsel claims that Finley and Govic expressed their hostility toward Fredericson while all three were- employed at Bethlehem Steel. There is no similar allega- tion concerning Jefferies. In support of her contention about the expression of hostility toward Fredericson, counsel relied on the testimony of George Murch and Joseph Jugovich.26 Murch did testify that at around the time of•a union election he heard Finley and Govic state that Fredericson was a communist and trouble Although Murch's testimony on this point was vague with respect to the precise time these statements were made, it does appear that they were made either in early 1981 or mid- 1981. Jugovich also recalled that Govic and others re- ferred to Fredericson as a communist but also was vague with respect to the time when these statements were made. Govic did not refute this -testimony but he did state that Fredericson was a "bright" person who was fa- miliar with the union contract. Also, as evidence of Respondent's animus toward Fre- dericson, the General Counsel referred to Cangelosi's testimony that he was annoyed with Fredericson because he distributed a leaflet critical of the safety conditions at the shipyard while under the Bethlehem Steel manage- ment. Respondent argues that the' factors outlined above cannot be considered in isolation, the entire course of its conduct must be evaluated to determine whether the de- cision not-to hire Fredericson and Jefferies was made for discriminatory reasons. Respondent asserts that the Board and the courts have considered several facts in as- sessing whether the refusal to hire was discriminatory; including "the presence or lack of anti-union animus, the employer's record of hiring other union employees, the employer's reliance on former management officials with first hand knowledge of the applicant 's abilities, and the existence of a valid independent reason for not hiring an applicant." In the instant case, it is undisputed that Respondent hired many, of the former Bethlehem Steel, employees and, thereafter, entered into a collective-bargaining agreement with,the,Union. Thus,,it does not appear that Respondent, had a general animosity toward the concept of its employees being represented by the Union. Re- spondent also hired former, Bethlehem Steel employees' who as shop stewards at Bethlehem -had filed, several grievances and it refused.to hire other former shop stew- ards who had filed fewei grievances. Govic testified that the decision to hire or not,_hire.these shop stewards was based , on an evaluation of their work performance and 26 The General Counsel also referred to alleged statements made by Cumberbatch For reasons stated above, I have not considered these al- leged statements ' HOBOKEN SHIPYARDS the record fails to reveal evidence to refute that conten- tion Mahone and Murch, credibly, testified that Frederic- son and Jefferies satisfactorily performed the work as- signed to them . However, Govic, who did not work on a regular basis with either individual , claimed that he had knowledge of their work performance and he did not consider their performance to be as competent as that of other employees As Respondent has noted, it is not the responsibility of the Board to substitute its judg- ment for that of the employer and, absent other consider- ations, Govic's judgment as to the comparative abilities of the applicants should be accepted . 27 However, the record reveals that there are other ,factors which must be considered. Respondent has cited several cases in support of its po- sition that its refusal to hire Fredericson was not viola- tive of the Act. In each of the cited cases, there is an element which was not in dispute, i.e., the Respondent advanced a valid business justification for its failure to hire applicants for employment . In General Processing Corp., 267 NLRB 1281 ( 1983), the evidence , established that an employee of the former employer made the deci- sion, on behalf of the new employer , not to hire some of the employees of the former employer . The reason ad- vanced, which the administrative law judge credited- and which the Board accepted , was.that the former employ- ees refused to file applications for positions with the new employer In R & S Transport, 255 NLRB 346 (1981), when the applicants were not hired the administrative law judge in failing to find a violation stated: nor have the Respondent 's reasons for not hiring the alleged discriminatees been shown to be pretex- tual. To the contrary, I am persuaded that the Re- spondent exercised reasonable business judgment in selecting and rejecting applicants on the basis of the information it received on their relative suitability for employment. In Big E's Foodland, the administrative law judge recom- mended the dismissal of the complaint because he also found that valid reasons existed for the failure to hire the applicants. And again in Border Steel Rolling Mills, 204 NLRB 814 (1973), 'and in Bosk Paint and Sandblast Co., 266 NLRB 1033 ( 1983), the adminstrative law judge rec- ommended that the complaint be dismissed based on his finding that the company ' had advanced a valid reason for the failure to hire the applicant. At issue in this case is whether the reasons advanced by Respondent for its failure to hire Fredericson are valid. Respondent claims that Fredericson refused work on the day shift, insisted on working only on the night shift and, thus, demonstrated his lack of flexibility, a element considered essential by Respondent for its operation of the plant. However, the record establishes that many em- ployees while employed at Bethlehem Steel worked spe- cific shifts and were permitted to do so, if, according to 27 NLRB v Ogle Protection Service, 375 F 2d 497 (6th Cir 1967), cert denied 389 U S 843 (1967) 1515 Finley, their reason for asking to work a particular shift was considered legitimate . Initially, Fredericson had sought work on the night shift because he had children and his wife worked or went to school during the day. After 1981 , Fredericson, by virtue of his status as shop steward, had superseniority on the night shift and worked only on that shift. Fredericson denied that he was offered day work in- 1982, when work on the night shift was eliminated He claimed that several other em- ployees had greater seniority than he had and these indi- viduals would have been entitled to work on the day shift before he was entitled to such work . The record does reveal that other individuals had more seniority than Fredericson and, thus, would have been entitled to work the day shift in 1982 . This does not preclude to possibility that ;Fredericson could have been offered work on the day shift , which he refused . It does establish that other employees with greater seniority also refused work on the day shift. Govic, repeatedly, stated that he considered "employee flexibility" to be an important factor in his determination to hire or not to hire an em- ployee. Notwithstanding the importance he attached to this flexibility factor, Govic did hire several employees who had refused to work the day shift while employed at Bethlehem Steel . Assuming that Fredericson refused day-shift work in 1982, Respondent has failed to explain why other employees who refused day-shift work while employed at Bethlehem Steel were hired but Fredericson was not. Respondent contends that Fredericson refused to work overtime. - Govic admitted that Fredericson stated that his refusal to perform the overtime work arose because of his efforts to equalize the overtime work . Respondent argues that Ferdericson should , have , engaged in these work stoppages but, rather , should have performed the work and then filed a grievance . However, as noted, em- ployees frequently refused overtime work but, neverthe- less, they were hired by Respondent. Respondent failed to explain why it selected these individuals who, appar- ently, gave no reason for their refusal to perform the overtime work but refused to hire Fredericson who ex- plained that his refusal was due to his efforts to equalize the overtime work, Fredericson testified that his complaints about "dirty work" were not made on his own behalf but were made in his capacity as shop steward . The record supports that assertion Thus, John Hubert credibly testified that the former Bethlehem Steel' - employees frequently com- plained about per work which they considered dirty and that Fredericson 'sought to have them compen- sated for the work, in accordance with the provisions of the contract. The record also discloses that Fredericson filed several grievances about the failure by-Respondent to pay the employees for this work and these grievances were resolved in favor of the employees. Although Govic claimed that Fredericson ' frequently sought assistance with his work, he admitted that other employees also needed assistance, at times. Govic also admitted that certain jobs could be performed more com- petently by smaller men . Govic testified that he did not consider Fredericson as well qualified as other riggers 1516 DECISIONS OF NATIONAL_LABOR RELATIONS BOARD who were hired However, Govic failed -to explain why he hired some individuals who had,no experience as rig- gers but refused to hire Fredericson who had several years of experience with Bethlehem Steel. The record does reveal that Govic refused to hire other former Bethlehem Steel employees who had experience as rig- gers but those refusals were due to the fact that the em- ployees had drinking, attendance, or medical, problems. - Respondent failed to establish that Fredericson had these types of problems . As -noted, the payroll records do not support Respond- ent's assertion that Fredericson was absent or left work frequently to avoid difficult assignments . Further, Mahone ' who was Fredericson's snapper and who worked -with him on a regular basis, credibly testified that Fredericson was a good worker who did not com= plain, on his own behalf about the work assigned to him It does appear that Fredericson objected to his assign- ment to the Bayonne facility and requested transporta- tion to that facility. Fredencson's claim that he was as- signed more frequently to that facility for discriminatory reasons was rejected in the grievance process as was his claim for'transportation to this facility. Govic constantly referred to Fredericson as a com- plainer. Fredericson did complain about the failure to equalize the overtime work, the failure to pay employees extra compensation for performing dirty work, as re- quired by the contract, and about supervisors and others performing unit work. These complaints were made, however, about these matters. - The' complaint appeared to have been' justified because many were resolved in favor of the employees. Respondent -was not obligated to hire Fredericson. However, as set forth above, the reasons advanced by Respondent for its refusal to hire Fredericson were either untrue or demonstrate that Fredencson was treat- ed in a disparate manner The Board has considered situ- ations where the reasons advanced by a respondent for its actions were untrue. and 'has concluded that the true motive for the respondent's actions must be other than what the respondent, alleged. 28 The Board also has held that if the stated motive for respondent's conduct is false; then the trier of the facts can infer that the true motive for the respondent's actions is an unlawful one which re- spondent seeks to disguise.29 Further, the Board has'con- cluded that if a respondent acts in a disparate manner, it is evidence that the respondent's alleged reasons for its action are pretexts advanced to hide its true motive ' 30 In the instant case, assuming that I had found that Frederic- son refused to work the day shift, refused to perform overtime work, and complained about dirty work, as al- leged, the record establishes that Respondent hired other individuals who had engaged in similar conduct but re- fused to hire Fredericson. This action by Respondent demonstrates that the alleged valid business reasons for not hiring Fredericson were pretexts. 28 Daniel Construction Co, 229 NLRB 93, 95 (1977) 29 Webb's Industrial Plant Service, 260 NLRB 933, 939 (1982), Shattuck Denn Mining Corp v NLRB, 362 F 2d 466, 470 (9th Cir 1966) 30 John P Bell & Sons, 266 NLRB 607, 610 (1983) Assuming that the facts, in this case had presented a dual-motive situation within the rationale of Wright Line, I find that the General Counsel established a prima facie case with respect to Fredericson and the burden then shifted to Respondent to establish "that the same action would have taken place in the absence of protected con- duct." It is my opinion that Respondent did not meet its burden and its defenses have ;created suspicions about its actions. However, I do not consider that this case pre- sents a true dual-motive situation. Rather, I find that Re- spondent refused to hire Fredericson solely for unlawful considerations and, therefore, has violated Section 8(a)(3) and (1) of the Act.31 The record reveals that Jefferies and-other miniorities participated in the EEOC charge and the class action suit filed against Bethlehem Steel. Thus, it appears that the criteria • stated in Meyers Industries, 268 NLRB 493 (1984), to establish concerted activity has been met. However, the record does not support the General Counsel's contention that, Respondent refused to hire Jef- feries for discriminatory reasons. This record fails to reveal evidence that Cangelosi, Finley, or GOvic ex- pressed animus towards Jefferies for his activities. The General Counsel claims that the fact that Fredericson, Jefferies, Stokes, and Alvarado,-all of whom ran against incumbent union representatives, were not hired estab- lishes Respondent's animus. As noted, the decision not to hire Jefferies was not made by the incumbent union rep- resentatives who might have had animus toward the four individuals who attempted to unseat them It was Re- spondent's representatives who made the decision not to hire the four individuals and the record fails to reveal that these representatives had any interest in the internal affairs of the Union. Respondent's representatives testi- fied that the decision not to hire the four` individuals was based on valid business considerations. I have found, as noted above, that Fredericson was not hired for discrimi- natory reasons; although I do not find that the reasons were related to his internal union activities. Govic's testi- mony that Stokes and Alvarado were. not hired for busi- ness reasons was not refuted..The record supports Re- spondent's contention that its refusal to hire Jefferies also was based on business considerations. Initially, it should be noted that Respondent did hire other individuals _who participated in the EEOC suit filed against Bethlehem Steel. Govic testified, however, that he refused to hire Jefferies because he had a drink- ing problem and/or was under the influence of drugs while employed at Bethlehem Steel. The General Coun- sel contends that Respondent did not raise the alleged use of drugs by Jefferies as a defense in its position paper or at any point during the investigation of. the case and, therefore, an adverse inference should be drawn against Respondent based, on its shifting defenses It does appear that the reference to the alleged use of drugs by Jefferies was raised, for the first time,,during the hearing. Howev- er, Jefferies was aware at the time of the hearing that it was. Respondent's contention that he used drugs but, nevertheless, he did not refute this allegation Moreover, 31 Brown & Lambrecht Earth Movers, 267 NLRB 186, 189 (1983) HOBOKEN SHIPYARDS counsel's claim that Respondent has presented shifting defenses is not quite accurate Respondent contended that Govic suspected that Jefferies was drinking and that when he was under the influence he was hostile and dif= ficult to supervise. The gist, of Respondent's complaint, even in its position paper, was that Jefferies- was a diffi- cult employee. The record.supports the claim that Jeffer- ies was a difficult employee to supervise and it is. imma- terial whether this difficulty arose from the use of alco- hol, drugs, or any other reason. Thus, Govic testified that, while employed at Bethlehem Steel, Jefferies _fre- quently berated him and used vulgar language to him in the presence of other employees. Jefferies admitted that he did speak to Govic in a belligerent manner and did, at times, use vulgar language. Jugovich testified that Jeffer- ies "carried on" when he spoke to Govic. Although-the record does establish that use of vulgar language was common in the Bethlehem Steel shipyard, it does' not appear that employees routinely used vulgar language in a belligerent manner when speaking to supervision. In Atlantic Steel, 245 NLRB 814, 816- (1979), the Board stated that it knew of no case which held "that an em- ployee's use of an obscenity to a supervisor on the pro-' duction floor following a question concerning working conditions is protected as would be a spontaneous out- burst during the hearing of a formal proceeding or in contract negotiations." In Atlantic Steel an employee made a vulgar comment on one occasion to a supervisor, and the supervisor as he walked away heard the com- ment. An .arbitrator found that' such conduct warranted the discharge of the employee. The Board accepted the arbitrator's decision and upheld the discharge of the em- ployee based on the employee's entire record, including his work performance and his attendance record In the instant case, the record reveals that Jefferies used vulgar language to Govic on several occasions. It further estab- lishes that, although Jefferies was not offered work on the day shift or overtime work on a frequent basis, he did refuse such offers when they were made. The General Counsel cites Hagerty Catering Co., 236; NLRB 1553 (1978), and Model A & Model T Reproduc- tion Corp., 259 NLRB 555 ( 1981), in support of her posi- tion that the use of-vulgar language is not grounds for an employer to discharge an employee when it was some action of the employer which provoked the employee to use the vulgar language It should be noted that in both of those cases the use of the vulgar language occurred only on one occasion and that in each case the employer had engaged is-some conduct which provoked the em- ployee to 'the use of vulgar "language The General Coun- sel argues that if Jefferies used vulgar language he was provoked to the use, of such language because he be- lieved that Govic assigned all the undesirable work to minority employees Although the record does establish that Bethlehem Steel did not give Jefferies and other mi- nority employees their correct seniority "status, the record'fails to establish that Govic assigned all the unde- sirable work to minority employees. In fact, the testimo- ny in the record establishes that all employees received such assignments at times. The General Counsel also cited Longshoremen ILA Local 333 (ITO Corp.), 267 NLRB 1320 (1983), for the proposition that the use of 1517 profanity in an employment setting where profanity is generally accepted and/or tolerated by management does not justify the employer's refusal to hire Jefferies on "op- probrious" conduct grounds. There are 'several differ- ences between that 'case and the instant one. The first difference is that' this-record does not establish that this Respondent accepted or 'tolerated the use of such Ian- guage If there was- an' acceptance of such language in the shipyard it occurred when the yard was under the operation of the Bethlehem Steel and not under Re- spondent's operation. Moreover, the record establishes that Respondent was determined to run a successful op- eration and it is unlikely that it would have tolerated such conduct by an employee to a supervisor, and Govic was aware of this fact when he decided not to hire Jef- feries. There are other facts in this case which differ from those in the ITO Corp case. This case involves the use of vulgar statements by an' employee to a supervisor on the work floor whereas the ITO Corp. case involved the issue of whether 'a union official could cause the loss of an'employee's job because the employee used vulgar language to the union official As the Board stated, "It is well established that an employee has a statutory right to voice dissatisfaction with' a union's conduct and its poli- cies, regardless of their propriety, without suffering re- prisal by being deprived of work for doing so " Although I do not find that Respondent's refusal to hire Jefferies in January 1983 was because of the incident in the summer of 1983, I do find that the incident sup- ports Respondent's 'position that Jefferies was a difficult employee. The testimony of the witnesses establish that Jefferies screamed vulgar statements at Govic and threat- ened him with a "blow job." This conduct can best be described -by the words of Emmanuel, who was a wit- ness for Jefferies. Emmanuel testified that he told Jeffer- ies that, "it wasn't right what he said" to Govic. The General Counsel contends that these comments 'were made outside of work and were caused by Govic's refus- al to hire Jefferies Although the incident did occur out- side of the shipyard, it took place in the vicinity of the shipyard and in the presence of many employees. More- over, one of the reasons why Govic refused to hire Jef- feries was'because he used abusive language to him, as he did on this occasion. In sum, this record fails 'to establish that Respondent had animus towards Jefferies because of his protected ac- tivities. Furthermore, assuming that the General Counsel had established a prima facie case it is clear that Re- spondent's refusal to hire Jefferies was motivated by le- gitimate business considerations and not for any reason prescribed by the Act.32 Accordingly, I shall recom- mend"that this allegation be dismissed CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 32 Although Respondent advanced other reasons for its refusal to hire Jefferies, I am convinced from my observation of Govic that it was Jef- feries' conduct towards him that caused Govic to refuse to hire him 1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Union is a labor organization with the meaning of Section 2(5) of the Act. 3. In refusing to hire Joel R. Fredericson, Respondent was motivated by discriminatory considerations 'and, therefore, by this act Respondent has engaged in, and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. . 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act.. 5 Respondent did not otherwise engage in the unfair labor practices alleged in the complaint. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent unlawfully refused to hire Joel R. Fredericson, I shall recommend that Respondent be ordered to offer Joel R. Fredericson immediate em- ployment in the rigger classification or in a substantially equivalent classification. I further recommend that Re- spondent be ordered to make whole Joel R. Fredericson for any loss of earnings he- may have suffered as a result of the discrimination against him. Backpay may be com- puted with interest as described in F W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 650 (1977). . - On these findings of fact and conclusions of law and on . the entire record, I issue the following recommend- ed33 • (a) Offer- immediate employment to Joel R. Frederic- son in the rigger classification or a substantially equiva- lent classification and reimburse him for moneys lost by reason of its discrimination in accordance with the for- mula set forth in the section of this decision entitled "The Remedy." - (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Hoboken, and Bayonne, New Jersey fa- cilities copies of the attached notice marked "Appen- dix."34 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. 34 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 "I31(d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply ' ' . APPENDIX ORDER The Respondent, Hoboken Shipyards, Inc., Hoboken, New Jersey, its officers, agents, successors, and assigns shall 1.' Cease and desist from (a) Refusing to hire applicants for employment because of their union and protected activities. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effecuate the policies of the Act. 33 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings,, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. NOTICE To EMPLOYEES _ POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to hire applicants for employ- ment because of their union or protected 'activities ' WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the National Labor Relations Act WE WILL offer immediate employment to Joel R. Fre- dericson in the rigger classification or in a substantially equivalent classification and make him whole for any loss of earnings he may have suffered by reason of our dis- crimination against him. - HOBOKEN SHIPYARDS, INC.