Newport News Shipbuilding

NEWPORT NEWS SHIPUIILDING Newport News Shipbuilding & Dry Dock Company and United Steelworkers of America, AFI- CIO-CLC. Case 5-CA-8953 December 2, 1980 DECISION AND ORDER MEMBE RS JENKINS, PENELIO0, AND TRUESI)AI.E On August 27, 1980, Administrative Law Judge Jennie M. Sarrica issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and Re- spondent filed a brief in opposition to the Charging Party's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard DryWall Prod- ucts Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing her findings. DECISION STATEMENT OF THE CASE JENNIE M. SARRICA, Administrative Law Judge: This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended (29 U.S.C. 151, et seq.), hereinafter referred to as the Act. Based on charges filed on October 20, 1977, a complaint was issued on May 9, 1978, presenting allegations that Newport News Ship- building & Dry Dock Company, hereinafter referred to as Respondent, committed unfair labor practices within the meaning of Section 8(a)(3) and () and Section 2(6) and (7) of the Act. Respondent filed an answer denying that it committed the violations of the Act as alleged. Upon due notice, the case was heard before me at New- All dates are in 1977 unless otherwise indicated port News, Virginia, on October 18 and 19, 1978. Repre- sentatives of all parties entered appearances and had an opportunity to participate in the proceeding. Based on the entire record, including my observation of the witnesses, and after due consideration of briefs and argument. I make the following: FINDINGS ANI) CONCLUSIONS I. JURISDICTION Respondent, a Virginia corporation with principal of- fices in Newport News, Virginia, is engaged in the con- struction and repair of oceangoing vessels at the New- port News shipyard, the facility involved herein. During the year preceding issuance of the complaint, a repre- sentative period, Respondent, in the course and conduct of its business operations, sold and distributed products valued in excess of $500,000 of which it shipped directly to points located outside the Commonwealth of Virginia products valued in excess of $50,000. Respondent admits and I find that it is now, and has been at all times material herein, an employer within the meaning of Section 2(2) of the Act. engaged in com- merce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE AROR ORGANIZATION The Charging Party, the United Steelworkers of America, AFL-CIO-CLC, hereinafter referred to as the Steelworkers, is now, and has been during all times mate- rial herein, a labor organization within the meaning of Section 2(5) of the Act. III. FINDINGS ANt) CONCI.USIONS A. The 1s"ues 1. Whether Respondent's supervisor, William Snow, promised benefits to Kathleen Owen conditioned upon her realigning her union activity and thereby violated Section 8(a)(1) of the Act. 2. Whether Kathleen Owen was assigned to perform onerous work because she engaged in union activity on behalf of the Steelworkers and was thereby constructive- ly discharged in violation of Section 8(a)(3) of the Act. B. Background Newport News Shipbuilding & Dry Dock Company operates a large ship construction and repair facility in Newport News, Virginia. The Company employs ap- proximately 16,000 production and maintenance employ- ees who work on three shifts: 7 a.m.-4 p.m. (first shift or day shift); 4 p.m.-12 midnight (second shift); and 12 mid- night-7 a.m. (third shift or night shift). The riggers de- partment-department X-36-had approximately 800 employees working on the first shift and 60-75 employ- ees on the third shift, those shifts involved in this pro- ceeding. For over 25 years, the Company's production and maintenance employees had been represented by the Peninsula Shipbuilders' Association (PSA), an independ- ent union whose most recent collective-bargaining agree- ment with the Company was signed in February 1975 253 NLRB No. 72 543 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and was to remain in effect until June 20, 1978. In Janu- ary 1977, the Steelworkers was certified as the collec- tive-bargaining agent of the Company's ship design em- ployees. A strike and picketing by the Steelworkers began in April.2 Early in 1977, the Steelworkers launched a campaign to replace the PSA as the production and maintenance employees' bargaining representative. The campaign was intense with the Company publicly supporting the PSA over the Steelworkers and several unfair labor practice violations occurring. 3 An election was held in January 1978, and in October 1978 the Steelworkers were certified by the Board as the bargaining representative of the production and mainte- nance employees. 4 During 1977, the Company had an agreement with the Virginia Employment Commission to hire and train a certain number of unskilled persons who were on wel- fare. This agreement was part of the Federal WIN pro- gram (Work Incentive Program) and consisted of referral of welfare recipients by the Employment Commission to the Company's personnel office. Kathleen Owen was re- ferred to the Company pursuant to this program and was hired on February 23, 1977. Prior to her commencing work for Respondent, Owen was examined by the Com- pany's physician, who approved her for hiring with the note: "obvious limitations on heavy lifting due to small body size." Owen listed hers:lf on the employment appli- cation as 5 foot 4 inches, 118 pounds. At the orientation meeting for new employees on February 23, Owen and other starting employees were told that any employee who was absent five or more consecutive working days and who failed to notify the personnel office that she was unable to work would be dropped from the Compa- ny's employment rolls and discharged. This rule was contained in the collective-bargaining agreement in effect at that time. C. The Operative Effects On her first day of work, Kathleen Owen was assigned to be a painter in department X-33. Her duties consisted of using a grinder to grind off the rust on the hull of ships ("busting rust") and painting ships. Owen worked in this position for just under 5 months, at which time the Company was laying off employees in department X-33. To avoid layoff, Owen, in July, requested a trans- fer to the riggers department, department X-36. In order to transfer, Lyons told her she had to fill out a transfer application, which she completed. On that application she indicated that she did not mind the painting duties but she disliked rust busting. Owen was transferred on July 11, along with roughly 20 other employees, from department X-33 to depart- ment X-36. Owen was designated a "helper" and as- 2 After the Company insisted to the point of impasse on altering the scope of that bargaining unit, the Steelworkers commenced a strike. The strike continued through September, and the Company's insistence was held to violate Sec. 8(a)(5) of the Act. Newport News Shipbuilding and Dry Dock Company, 236 NLRB 1637 (1978), 602 F.2d 73 (4th Cir. 1979). a Newport News Shipbuilding & Dry Dock Company, 236 NLRB 1499 (1978). ' Newport News Shipbuilding & Dry Dock Company. 239 NLRB 82 (1978). signed to cleaning on the first shift. The duties of clean- ers in department X-36 included sweeping piers and decks, pumping water, cleaning tanks and boilers, dust- ing, polishing, and muck racking. "Muck raking" in- volves cleaning the tanks underneath the engine room of a ship by shoveling the accumulated "muck" into buck- ets and passing them out for disposal. The space where muck raking is done is small and requires the employee to stoop while working. When muck raking, cleaners wear wet suits with boots and must stand in the mud as they shovel. The buckets which the cleaners lift up and pass out weigh approximately 25-30 pounds. Muck raking is not performed on the new ships being con- structed at the yard, but only on ships in the shipyard for repair. Employees assigned to cleaning in department X- 36 do not perform muck raking on a daily basis, but only as needed. These employees spend a maximum of 10-15 percent of their total working time performing muck raking. On her first day in department X-36, July II, Owen was given the duty of cleaning and sweeping a pier. After working about 3-1/2 hours, Owen reached down to grab a piece of material that was lodged under a pipe. She lost her balance as she reached, grabbed what turned out to be an unmarked steampipe, and burned her left hand. Owen began crying. John Hudgins, general fore- man of department X-36, saw her, came over, and in- spected the burn, which looked serious to him. It blis- tered, but did not bleed. While Owen was crying she said that she did not know what she was going to do be- cause she did not want to stop work, as she needed the pay. Hudgins told her he would send her to the clinic and would put her on a light job temporarily.5 When an employee of the shipyard is injured on the job, Respondent has a longstanding policy of assigning that worker where possible to either light duty work or restricted duty work. As described by the Company's vice president and head of labor relations, D. T. Savas, light duty work means work that the injured employee can perform with the injury present; restricted duty work means that the injured employee is restricted in performing certain tasks in their normal daily work, since otherwise the employee could further injure him or herself. The Company and the injured employee mutual- ly benefit from this policy, for the employee receives his or her regular pay and thus does not have to rely on the lower paying state wrkmen's compensation program, and the employer gets at least some productivity from the employee, while minimizing its payments to work- men's compensation. An employee can be put on light duty work in two ways. Under the most commonly used method, the Company's medical department recommends the injured employee for light duty work after the in- s In her testimony, Owen denied that Hudgins had ever told her that the light job in the toolroom was to be temporary. She did not state whether she had told Hudgins that she did not want to stop work be- cause she needed the pay. Based on my observation of the witness' de- meanor I credit Hudgins' testimony. This credibility finding is further supported by the fact that Lawrence lamerson, another injured employ- ee. testified that when he replaced Owen in the toolroom job in Septem- ber 1977, he was told by management that the placement was only tem- porary 544 NEWPORT NEWS SHIPBUILDING jured employee is treated at the Company's medical clinic. That department sends a medical certificate to the personnel supervisor, stating that the employee should be put on light duty. The personnel supervisor then con- tacts the employee's head supervisor or foreman, and they place the injured employee on light duty. Under the second method, one of the employee's supervisors, utiliz- ing his discretion, assigns an employee to light duty, even where there is no medical certificate. Under both methods of assigning an injured employee to light duty work, the employee normally stays in the new position until another employee is injured and placed in that same light duty job. The shipyard has roughly 1,500 injuries per year which result in the employee being placed on light duty. An ambulance took Owen on July II to the medical center and she spent about 2-1/2 hours there, where a nurse applied some medicine, bandaged her hand, and re- leased her. Owen then returned to department X-36, re- porting to her supervisor, W. E. Smith, who told her to see Hudgins. After asking Owen, who is right-handed, whether she knew how to write and had good penman- ship, Hudgins told her she would be making up some charts for him and keeping the blackboard in toolroom one up to date.6 For the rest of the day, she made per- sonnel charts, updated the blackboard, and answered the telephone. On the first shift in department X-36 there were about 800 employees and enough office work in toolroom one for several employees. On the third shift there were only about 75 employees and only enough office work in toolroom one for I employee. During Owen's period of work there, there were two other em- ployees-George Clark, and Jimmie Roe-working in that toolroom during the first shift. On July 12, the day following her injury, Owen re- ported to Smith, who told her to see Hudgins. Hudgins told her that she would again be working in the tool- room. After that day, Owen reported each morning di- rectly to Hudgins. Her duties in the toolroom were two- fold, picking up and delivering mail and running errands. In a typical day Owen would first go to the main office to pick up mail and the employee check-in sheet. Next she would go to the North Yard, where she would record on the check-in sheet the attendance of employ- ees from their timecards and then deliver and pick up mail. Thereafter she would answer phones and perform any errands that the supervisors needed done. After lunch Owen would again run errands, pick up and deliv- er the afternoon mail, and answer the phone. Owen had the bandage on her hand for 2 or 3 days; within about I week the burn had healed. The treating nurse had not told her to return to the medical clinic or to see a doctor for a followup visit, and she received no further medical treatment for her hand. There was no form filed by the clinic recommending that Owen be placed on a light duty job. I The Company has many toolrooms, which are used for storing and checking out certain tools used by the workers. Some toolrooms are per- manent (used all year around), others are temporary (only used when needed due to the specific ship under construction or repair) Toolroom one is one of the three permanent toolrooms of department X 36. Owen continued in the toolroom job until she was transferred in mid-September. When Owen started work- ing for Respondent as a production and maintenance em- ployee in February, she was paid $3.99 per hour; by July 11, when she was transferred to department X-36, she was making $4.19 per hour. While she was working in toolroom one from the afternoon of July 11 through September 20, Owen was paid the production and main- tenance employee wage of $4.19 per hour. During August and September when Owen was in the toolroom job four other employees of department X-36 suffered on-the-job injuries for which Respondent's medi- cal department recommended restricted duty work. Jones wrote on each recommendation "No restricted em- ployment available." In the same period, an employee at department X-36 who suffered an on-the-job injury- Simmons-was recommended by the medical department for light duty. He was assigned to light duty effective August 22. While working in the toolroom, Owen often stated to her fellow employees that she liked the toolroom job and preferred it to the job of cleaner.7 She told Hudgins she liked the job and would like to keep it, and one time asked him if she was doing a good job. He told her to keep up the good work. On approximately September 13, Owen had her first contact with the United Steelworkers of America, when she had lunch with a Steelworkers organizer. Owen in- formed the organizer that she was interested in joining the Steelworkers in-plant organizing committee, and she was allowed to join that committee. Between September 13 and 15, Owen obtained the signature of a neighbor on a Steelworkers card. On Sunday, September 18, Owen attended her first Steelworkers meeting, at which the Union stressed the need for the organizing committee to "come out of the woodwork" and let the people know they were organizers, because they wanted other em- ployees to sign authorization cards. The following day, September 19, Owen arrived at work around 6 a.m., about an hour prior to the 7 a.m. starting time for her shift. The design employees' strike against the Company was in progress, and those employees were picketing the Company. Owen joined the picket line at the 42d Street gate where she solicited employees to sign Steelworkers authorization cards. Owen wore a button that said "Steelworkers Union" and she signed up one employee. As this employee was signing the Steelworkers authori- zation card, three supporters of the rival PSA union made anti-Steelworkers comments and attempted to see the signing employee's name and department number. Owen reported to work around 6:30 a.m. As she went through the gate, a PSA supporter followed her and stood outside the tool room for about 10 minutes. 8 7 Owen also told Gloria Boswell, an employee in another toolroom of department X-36, that she was going to get married and after that she was thinking about quitting. r Owen testified that during that morning she was in the main person- nel office of department X-36 when Anita Armstrong, head clerk of the office asked Owen if she had gotten involved with the Steelworkers. Owen allegedly replied, "I told her you're darn right It's my business as long as I do it on my time and not Company time. there's nothing they Continued 545 DECISIONS ()F NATIONAL LABOR RELATIONS BOARD During lunch that day, Owen returned to the 42d Street gate and again walked with the picketers and handed out Steelworkers authorization cards. A PSA supporter named Donna made anti-Steelworkers comments and "shadowed" Owen by following two steps behind her. The PSA supporter also "yelled" that Owen would not have her job the next day. Owen reported back to work after lunch, and did not hand out cards after work that day. The next day, Tuesday, September 20, Owen reported to work about an hour early and picketed and solicited at the gate. Donna again shadowed Owen, and "yelled" that Owen definitely would not have her job that day. Owen saw three management personnel-Wilson, head of the department; Temple, a foreman; and Carrareo, a supervisor foreman-go through the gate while she was picketing and soliciting. None of those three ever said anything to Owen about her union organizing or union activities. Owen reported to work, and Hudgins about 10:30 a.m. informed her that she was being sent back to her original assignment of cleaner, and that she should train Lawrence Jamerson who was going to replace her in the toolroom. Jamerson was an employee in department X-36 who had sprained his ankle on the night of August 30. The emergency room physician had told him at that time to stay off it for 48 hours and the medical department sur- geon on August 31 signed a form stating that Jamerson was not able to resume work at that time. Jamerson re- turned to the medical clinic on September 8 to check on the condition of his ankle, and was told to avoid repeat- ed climbing or prolonged walking for I week. Jamerson was assigned, apparently on September 8, to the third shift in toolroom one to fill in for George Young, the regular office clerk, who was on vacation. Jamerson worked in the toolroom for about I week, at which time Glenn Jones, supervisor of employee relations,learned that both Jamerson and Young, who had returned from vacation, were working the third shift. Since there was only enough work during the night shift for one office clerk, Jones and the third-shift foreman decided to keep Young, the regular office clerk, on the third shift and assign Jamerson to the day-shift work in the toolroom. Jamerson worked a full day Friday, September 16, on the third shift; he did not work Saturday, September 17, or Sunday, September 18. Some time prior to the morn- ing of Monday, September 19, Jamerson was notified that he was being transferred from the third shift to the first shift work in toolroom one.9 He reported for the day shift on Monday, September 19. could do." Owen testified that Armstrong said. "Well, just be careful." Owen later recounted the conversation as follows: " replied to Arm- strong, 'You're darn right I was I said it's my business, nobody else's.' She told me to be careful. and not to do it on Company time." Arm- strong testified that she never had such a conversation with Owen and that she never discussed Owen's union activities. As this incident was not alleged as an 8(a)(1) violation, and the General Counsel has not estab- lished Armstrong's supervisory status, I find it unnecessary to resolve this conflict in testimony 9 Jamerson testified that to the best of his recollection he was notified on Friday, September 16, that he would be working on the first shift Monday, September 19. He did state at one point that the Company gives I-day day notice if they are going to transfer the employee and 3 days' notice if they are going to assign an employee another shift. He later Apparently in mid-morning on Monday September 19, Hudgins received word from Jones that Jamerson had been transferred to the day shift and that room had to be made for him. At that time, Owen was no longer on the injured list and, unlike Jamerson, did not require a limit- ed work assignment. By Tuesday, September 20, Hud- gins had decided that Owen must be taken out of the toolroom to make space for Jamerson, and Hudgins so informed her around 10:30 a.m. that morning. Owen became quite upset ° and cried. After crying, she showed Jamerson what his duties would be on this shift.' She then told Hudgins she was sick and went home for the rest of the day. The following day, September 21, Owen reported to Hudgins, who assigned her to a crew of cleaners under Foreman Temple. Temple assigned her to work with em- ployee Knight, also a cleaner, pumping and drying water out of a drain in the hold of a ship. The drain of the ship had cracked and leaked, so Owen and Knight used a pump to suck most of the water out of the drain, and then used paper towels to dry up the remaining water and plug the leaks. The welders who were supposed to seal the leaks did not arrive on time, so Owen and Knight had to repeat the job. On September 22 and 23, Owen was absent from work. On the next workday- Monday, September 26-Owen reported to work early and passed out Steelworkers cards at the gate. Donna, a PSA steward, who had previously "shadowed" Owen, was present. Owen testified that Donna told Owen, "See, PSA did get your job. The Steelworkers aren't going to help you now." Owen reported to work, and Temple as- signed her to work with Knight again, pumping and drying water out of the ship. While in the hold that day, according to Owen, Knight told her that it was unusual for a girl to be down in the hold like that. Owen further testified that in the afternoon of the Sep- tember 26 William Snow, a supervisor in the ship repairs department, came down into the hold of the ship where she was pumping water, talked with her a while, and then asked her to go out to dinner. Owen testified that Snow then made a statement to her which she described as follows at various times in her testimony: He told me, if I dropped the Steelworkers union that, if I represented PSA, that he could get my job back in the tool room; he told me, well, in other stated that the Company only gives 24 hours' notice prior to changing an employee's shift In any case. Jamerson reported to work on Monday, September 19, for the day shift and thus must have been notified of the change in shifts prior to Monday morning. On his first day on the first shift, Jamerson wore a PSA insignia on his hat. "' Owen testified that at this point she "yelled at [Hudgins] I thought you was a decent man. That, why would you let PSA buy somebody's job. He refused to answer any of my questions." In his testimony, Hud- gins denied that she had made these statements As Owen's accusations would not establish Respondent's motive. I find it unnecessary to resolve this conflict I HBecause of this injury. Jamerson was unable to undertake the mail delivery and, at first, the errand-running duties which Owen had per- formed while in the toolroom. Jane Van Skoya, who delivered mail and ran errands in another part of the shipyard, was assigned to the mail de- livery and errand-running duties of toolroom one after Owen was trans- ferred. These duties took up roughly 50 percent (4 hours) of Van Skoya's normal working day 54h NEWPORT NEWS SHIPBUILDING words that if I, that he could get my job back if I went with PSA; and he told me more or less if I dump the Steelworkers and join the PSA he could pull some strings and get my job back. Owen testified that she merely replied that she was not interested in going with the PSA and that this was the only conversation that she had with Snow that related to her Steelworkers activities. On September 28, according to Owen, Snow again came down in the hold, this time with some coffee, and again asked her out. Owen further said that, both times Snow came down into the hold, Knight was not present. In contradiction, Snow testified that he never made any statement to Owen about getting her toolroom job back or about her union activities. Indeed, he testified that he had been married for over 15 years, had not met Owen, and did not remember seeing her prior to the 1978 unfair labor practice hearing. Owen was absent from work on September 27. On September 28 she again worked with Knight pumping and drying out water. Owen testified that Snow again came down into the hold of the ship where she was working and asked her to go out socially. She again de- clined. Owen was absent on September 29. On Septem- ber 30, Temple's cleaning crew was assigned to "muck raking" a ship. Owen, along with the rest of the crew of seven to eight employees, shoveled mud and lifted it out of the hold of the ship. While muck raking that morning, Owen told the person working next to her-Cheryl Lynn McCray-that she did not like the job, she did not like the mud, and was not going to do it. 2 After a total of approximately 3 hours of muck raking Owen reported herself as sick and left work. Owen never returned to work. Owen had no further contact with the Company until roughly October 10, when she telephoned Jones and told him that she was quitting. She gave as her reasons the working conditions and harassment. Jones responded that her quitting was fine with him. Sometime after her last day of work at the Company, Owen went to Hudgins' house to pick up some clothing of his deceased wife, which Hudgins had told her would fit her and that she could have. 3 By letter of October 26 the Company officially noti- fied Owen that it had terminated her employment on Oc- tober 14 for "unsatisfactory attendance." 12 Between September 20 and that morning, Owen also made the other statements regarding her work assignments. In one, she told Herbert Holt, who worked in a toolroom, that she did not really like the cleaning work and wanted her job back in toolroom one. The other statement was made while talking with Jamerson, to whom she said she did not like the cleaning job and was thinking about quitting. Owen testified that while muck raking she never told any employee that she was going to quit. But she did concede that she probably said something close to it such as "I'm not going to do this work or I don't like it," which is exactly what McCray testified that Owen said. 13 Owen testified that when she was at Hudgins' house "I used the op- portunity to voice my opinion of how raunchy I thought the shipyard was to let the PSA buy a job like that And he didn't say anything about it." In his testimony, Hudgins denied that she made the statement. For the reason slated in fn 0. upra, I find it unnecessary to resolve this con- lict D. Analysis 1. The 8(a)(1) allegation The General Counsel contends that Respondent violat- ed Section 8(a)(l) of the Act when Supervisor Snow on the afternoon of September 26 came down into the hold of the ship where Knight and Owen had been assigned to pump and dry out and told Owen, inter alia, that she could be reassigned the toolroom job from her cleaning job if she would support the PSA. The General Counsel alleges that Respondent thereby interfered with, re- strained, or coerced Owen in the exercise of her Section 7 rights by promising benefits conditioned upon realign- ing her union preference. I resolve the specific contradiction in the testimony of Owen and Snow with respect to her job assignment and her union activity by crediting Snow's denials. There was no indication in the record that Snow supported the PSA over the Steelworkers, or that Snow was engaged in an attempt to persuade Steelworkers supporters to switch their allegiance to the PSA. Significantly, accord- ing to Owen, both times that Snow assertedly talked with Owen, Knight, who was assigned to the exact same task working with her, was not present, even though it was during working hours. Such an absence of a likely witness, without explanation, raises serious credibility questions. Based on all these circumstances, and my ob- servation of the witnesses' demeanor, I find that the al- leged 8(a)(1) violation has not been proven. 2. The 8(a)(3) allegation The thrust of the General Counsel's contention in this case is that Respondent violated Section 8(a)(3) in that it constructively discharged Owen by reassigning her from the toolroom to the cleaning duties, especially muck raking, and conditioning her return to the toolroom on her supporting the PSA. As indicated. infra, the evidence offered in support of the latter has been found unreliable. However, this credibility determination is not dispositive of the contention. To establish a constructive discharge, the General Counsel must prove two elements. "First, the burdens imposed upon the employee must cause, and be intended to cause, a change in his working conditions so difficult or unpleasant as to force him to resign. Second, it must be shown that those burdens were imposed because of the employee's union activities." 4 The question is whether the totality of the evidence shows that the em- ployee was assigned, for a discriminatory reason, to work which was so intolerable or undesirable that the employee had no choice but to quit.' 5 For a finding of discriminatory motivation, the Gener- al Counsel relies heavily on the timing of the events. He argues that, although Owen was initially temporarily as- signed to toolroom light duty when she burned her hand performing cleaning work, her hand had healed soon after the July 11 injury, and she had remained in the I' Crstal Princeton Refining Co.. 222 NLRH 10(8. 1(t)6 ( 7hl 't Pancuape Corp.. 231 NIRB 693 (1977): .6I93lgtimr 4lrd and Cu , (o. 160 NLRB 1729. 1742 (19661. enfd in part 385 2 7i (h (Clr 16h71 547 DIECISIONS OF NATIONAL LABOR RELATIONS BOARD toolroom job until the middle of September, thereby in- dicaling that her assignment was no longer related to her injury. liHe points out that it was only after openly sup- porting the Steelworkers by soliciting for them on Sep- tember 19 and 20 that Owen was suddenly pulled out of the toolroom job and sent back to work as a cleaner. However, suspicious circumstances are not sufficient to establish an 8(a)(3) constructive discharge violation.' 6 While it is true that Respondent took an open position favoring PSA over the Steelworkers and that Owen did not assume a low profile in her activities for the latter union, the record as a whole does not warrant a conclu- sion that Respondent acted in retaliation for that activity. Initially, I find, contrary to the General Counsel's con- tention, that Owen's assignment to the toolroom job was temporary and not permanent. Had the assignment of Owen to the clerical duties of toolroom one been on a permanent basis she would have been paid under the clerical employees' wage scale contained in the collec- tive-bargaining agreement which provided for a lower hourly wage for clerical workers than that of production and maintenance employees. Moreover, the uncontradict- ed testimony establishes that the Company, as a major recipient of Federal contract funds, was required by De- partment of Defense regulations to post openings for per- manent jobs, and to follow competitive job selection pro- cedures, in determining who would get the posted posi- tion. Thus compliance with the Defense Department's regulations would have necessitated the posting of all the Company's hundreds of light duty job openings if such placements were on a permanent basis. Instead, light duty work assignments, including Owen's, are not posted. We will not assume there was a violation of De- partment of Defense regulations but rather conclude that the assignments are temporary, as testified to by Savas. Further, if injured employees were assigned to these light duty positions on a permanent basis, the very pur- pose of the Company's policy would be defeated and the opportunity for light duty employment would quickly be destroyed. Finally, the fact that Hudgins initially told Owen that the job would be temporary and never changed this advice, together with Hudgins' statement to Jamerson, upon the latter's assignment to the first shift, that he would only be in the toolroom on a temporary basis, lends further support to the finding that Owen's as- signment was not permanent. However, the General Counsel contends that Re- spondent's reassignment of Owen was not made pursuant to the Company's normal procedure. He points out that prior to her union activity, Owen was not assigned back to her cleaning duties even though her injury had long since healed and several other employees had been in- jured on the job who could have replaced her in the toolroom. Specifically, between the time Owen's hand had healed (roughly July 18) and Jamerson's assignment to her position on the first shift, September 19, four other employees of department X-36 who had sustained on the job injuries and whom Respondent's medical de- partment recommended for "restricted" employment were denied such employment because, as Jones wrote i Cddll-Burns .1g. o,.. Itn., 222 NLRI 488 (1976) on their medical slips, "No restricted employment [was] available." The uncontroverted testimony of Savas re- veals that "light duty" work and "restricted duty" work are different types of injury-related employment. The evidence reveals that the one employee of department X-36 who, during this period, was recommended for "light duty" work-an employee named Simmons-was assigned to light duty work on August 19. The General Counsel has not established that any of the four employ- ees denied "restricted duty" assignment could have per- formed the "light duty" work assigned to Owen; i.e., that they knew how to write and had good penmanship, two qualifications which Owen was required to meet prior to her being assigned to the toolroom light duty job. I perceive in these circumstances no particular de- parture from company policy and no support for a find- ing of unlawful motivation. Nor does the evidence establish that Respondent had knowledge of Owen's pro-Steelworkers preference or ac- tivity when it made the decision to assign Jamerson from "light duty" work in toolroom one on the third shift to the same class of work on the first shift, and thereby set in motion the reassignment sequence which affected Owen's tenure in her temporary light duty assignment.' ? That decision was made and communicated to Jamerson, who worked the night shift on Friday, September 16, sometime prior to Monday, September 19, the morning he reported to toolroom one on the day shift.'8 Owen did not engage in any pro-Steelworkers activities of which Respondent could reasonably be held to have knowledge prior to September 19. As noted above, it was not until the morning of September 19 that Owen first mingled with those on the picket line soliciting sig- natures for the Steelworkers. I find that the natural se- quence in the application of Respondent's light duty as- signment policy rather than any union activity of Owen was the catalyst for Owen's reassignment and return to her normal job duties on the cleaning crew. According- ly, I find that the General Counsel has failed to prove by a preponderance of the evidence that Respondent's as- signment of Owen from her toolroom job back to her regular cleaning duties was motivated by Owen's pro- Steelworkers activities. The General Counsel has also failed to prove the second element required for a finding of constructive dis- charge; namely, that Owen's assignment to the cleaning duties was so difficult or unpleasant as to force her to quit. Owen had requested transfer in July into depart- ment X-36 when she was faced with possible layoff from her original painting job in department X-33. That re- quest was granted by Respondent, and Owen was trans- ferred on July 11 to her permanent position as a helper in department X-36, where she was assigned to cleaning. All the tasks which Owen was assigned to as a cleaner in 17 Jamerson's addition to the staff in toolroom one for the day shift resulted in an extra worker on that shift. Since Owen, who worked hat shift, was no longer injured and her services there were no longer needed. udgins assigned her back to her regular cleaning duties in de- partment X- 36. I' See fn 9, upra. 548 NEWPORT NEWS SIPBUII I.)INfG department X-36 were normal job assignments which all cleaners were expected to, and did, perform. Owen was assigned to two jobs between her last day in the toolroom job-September 20-and her last day of work-September 30. On September 21, Owen was given her first assignment; pumping and drying water from the hold of a ship. This activity was an ordinary one, which cleaners in department X-36 often per- formed. Moreover, Owen was not forced to perform this duty alone; another cleaner in the department, Knight, was assigned to work with her on the job. Owen was as- signed this same type of duty on September 21, 26, and 28. She was absent from work on September 22, 23, 27, and 29, September 24 and 25 being the weekend. On September 30, Owen was given her second assign- ment: muck raking a ship. Muck raking is admittedly a dirty, unappealing task.'9 However, two factors militate against finding that the assignment was such as to consti- tute a constructive discharge when Owen quit after per- forming the task for a total of only 3 hours. First, muck raking is a routine activity for cleaners in department X- 36. It is one which cleaners know they are expected to perform, one which most every cleaner is assigned to at one time or another, and one which, when assigned, the cleaners-other than Owen-performed without quitting. Second, Owen was not assigned to this work alone. On the contrary, an entire cleaning crew of seven or eight employees was down in that ship with her on that day, performing the exact same task of shoveling mud into buckets and lifting the buckets out of the hold of the ship. Nor was it unique or unusual that a female was as- signed to muck raking. The uncontroverted testimony of Cheryl Lynn McCray, a cleaner in department X-36 who worked directly next to Owen while muck raking on September 30, establishes that four of the seven or eight cleaners assigned to muck raking on that ship on that day were female. Besides Owen, female employees Scott, Arrington, and McCray were all on the crew muck raking on that ship on September 30. Owen was thus not singled out to perform work under conditions any different from that of the other cleaners.2 0 And "the mere fact that the work was unpleasant and undesirable lo There is no specific claim that Owen was physically incapable of performing the muck raking. Respondent's physician's note on Owen's employment application that she had an obvious limitation on lifting heavy objects did not specify any particular weight which would exceed Owen's physical capabilities When faced with lifting the 25--30 pound buckets of mud on September 30, Owen never indicated to her supervi- sors-either by refusal, objection. or even a statement-that such lifting might be too much for her Under these circumstances, I cannot, and do not, find that the lifting of 25-30 pound buckets by a healthy 19-year-old female of 118 pounds constituted an activity beyond her physical abilities 10 In Caddell-Burns Mfg. Co., Inc.. 222 NLRB 488 (19761, enfd 551 F.2d 299 (2d Cir 1976), the Board, in upholding the Administrative Law Judge's determination that the employer had not constrtuctively dis- charged employee Davis, stated: While it is true that Davis was, fron time to time. assigned unde- sirable jobs, the record hows that such assignments were made to all employees on a rotating basis Thus. Respondent's other cmplo- ees had at one time or another performed these tasks There is noth- ing in the record which would show that Davis was unlasfulls sit- gled out is not sufficient to render this assignment of duties a conl- structive discharge. "2 t The real reason for the termination of Owen's employ- ment with Respondent was not any singling out of Owen for intolerable work conditions, but Owen's disappoint- ment and resentment at being reassigned from the tempo- rary clerical work, which she liked, back to her regular cleaning job. As both Owen and other workers testified. Owen did not like the cleaning job and preferred the clerical duties in the toolroom. Owen was absent for four of the first seven working days after she was transferred back to her cleaning position. Owen particularly disliked the muck raking. Shortly after they began to muck rake, O)wen told McCray, who was muck raking next to her. that she did not like the job, did not like the mud, and was not going to do it. After only 3 hours of muck raking, Owen acted on that statement. She left the ship, walked off the job, and quit. 22 None of the other em- ployees on the crew, including the other females, quit. The General Counsel maintains a constructive dis- charge can be found irrespective of whether the duties of the job which the employee was assigned to were also performed by others. The one case which the Genecral Counsel cites in support of that claim does not fulli en- dorse that proposition and is quite distinguishable front the case at hand. 23 And the cases which the Charging Party cites do not persuade me that Owen was construc- tively discharged.24 21 R R J W:l Morrtil/ (Ipant. 440) 1 2di 455 45 ' (7thl ( 1971) 22 t has nil sIglilance other han perhaps for Repi. ntlnt's fulure reference hat the offiilal itrnmlitio nolti ce o ()% e I gie xeis Ie hib- sence as Ihe reaison 2. The ieneral Colunsel cites '.St , i tlltr/ln ( rmpani / Brtd it,i. Neit Jerwy . Inc. 235 NLRIt 745, 750 ( 178}, for tis conlellhitii In ro- E[. the empl. ee als Iransferr,'d hs the colrnpani \ icc prsildelrn tronl his Iob as a cleanup man i a iarehaus toi a job :itlnlg aind tranlplant- ing roses orl a farm, alnd a conlstruclvc itsciharge sas fulnd I he fact that tither employees hadi from ime tio im ue rkl a the farm isas held to be nt determinative, in that this instanc ;as the first 1111e tail nl an agement sent an employee to vuork i the farm usit out trh flarn manag- er's requeslt the work which this cmplosee perfrilted at the faril cul- ting and transplanting of rses- was nit needed at the itie;r and lthe transfer occurred in February at a timne uhher the lemperallulre aI be- tween 15 and 35 degrees Fahrenheit, with the grounid frocn aid Ithus transplanting of roses an impossibility Nne of those factors is presentl Ili Owen's case This is not the first time an emplosee ias transferredl t the job in question; the work which Owen as assigned to performl u as needed at the time: and the transferred-to work was not Icapable f being performed due to tempe-ature or ay olther acitr. 24 The Charging Party cites fiour cases One, ,onr(e Auto Equipment Company. 159 NLRB 613 (1966). enfd 392 F2d 559 (5tl Cir 1tih). states that discriminatory transfer of a employee to work vhsich lie or she is physically incapable of performing cal cnstitute a otillrlrlit. discharge As discussed above, Owen was nt pbhsscally illcapable of performing the duties f a cleaner The second cse. a pial I/l,r( Poer A.sociation, 171 NL RH 262 1968), iled assginenits of Ihrec tree surgeon crew employees One assignmenl u vl a of a ground Irilnliiter who had never climbed and who the emplioer kew couldI I tI hilh. to tree climbing one was of a tree climber to 2 straight weeks of tree cliih- ing, though the employer knew none culd cinih fr 2 sralghlt week il the hot weather present at the tinei anld ni 1 e as of a true clirllhber t grotund trimming, a job he had never perfirnrme ad ad hich lie did it know huw to do O()uwen as not assigned ti u rk l. tich sIhe dI notll know hw tIo. or could noit, perfirm The third case cilted .5.t I -.ISor. inc. 225 N RB 7 (1 76). ivol:ed a Ienitwliin of ,lan clplice fron a cashier t ne stire io ai shelf siicker at another slore ()I s crl's ssigllenlt Cwamluclrlld 54'~ DECISIONS OF NATIONAL LABOR RELATIONS BOARD I conclude and find that the preponderance of the credible evidence fails to support the allegation that Re- spondent constructively discharged Owen by assigning her to the duties of cleaning, and in particular muck was not a dellotion The fourth and final case cited, Packerland Packing (ompanv, Inc, 203 NLRB 198 (1973), arose when the employer trans- ferred three employees from city truckdriving jobs to work in the boning room and loading dock T'wo of the employees aggravated previous inju- ries by working in those positions None of the employees had been as- signed to boning or loading previously Owen had been assigned to the cleaner job prior to her injury, and she did not aggravate any injury by her work in September as a cleaner. None of the cases relied on by the Charging ';arty stand for the broad proposition for which they are cited And all (if them involve situations significantly different from the case at hand raking, in violation of Section 8(a)(3) and (1) of the Act. On the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Sec- tion 10(c) of the Act, I issue the following recommend- ed: ORDER 2 5 It is hereby ordered that the complaint herein be, and the same hereby is, dismissed in its entirety. 25 In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections hereto shall be deemed waived for all purposes. 55()