Great Lakes Dredge & Dock Co.

National Labor Relations Board - Board Decisions

Feb 5, 1968

169 N.L.R.B. 631 (N.L.R.B. 1968)

GREAT LAKES DREDGE & DOCK CO. 631
Great Lakes Dredge & Dock Company and Gordon
C. Allen
Great Lakes Dredge & Dock Company and Manson
Construction Company. Cases 3-CA-2609,
3-CA-3120, and 3-CA-3147
February 5, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On September 28, 1967, Trial Examiner Paul
Bisgyer issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practies and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that the Respondent
had not engaged in certain unfair labor practices al-
leged in the complaint and recommended that the
complaint be dismissed with respect to these allega-
tions. Thereafter, the Respondent and the General
Counsel filed exceptions to the Trial Examiner's
Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in these cases, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Great Lakes Dredge &
Dock Company, Buffalo, New York, its officers,
agents, successors, and assigns, shall take the ac-
tion set forth in the Trial Examiner's Recom-
mended Order.
IT IS FURTHER ORDERED that those allegations
of the complaint as to which no violation has been
found be, and they hereby are, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Trial Examiner : This proceeding, with
all parties represented , was heard on April 20 and 21,
1967, in Buffalo, New York, on the consolidated com-
plaint of the General Counsel,' and the answer of Great
Lakes Dredge & Dock Company, herein called the
Respondent. In issue is the question whether the Re-
spondent, in violation of Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended, discrimina-
torily withheld employment from Gordon C. Allen and
refused to hire or use the crew of Manson Construction
Company, herein called Manson, because of their non-
membership in Piledrivers, Dock Builders, Trestle, Crib,
and Breakwater Builders Local 1978, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO,
herein called the Union. At the close of the hearing the
Respondent moved to dismiss the complaint for failure
of proof. The motion, on which ruling was reserved, is
now denied in part and granted in part for the reasons
indicated below. In so doing, careful consideration was
given to the briefs submitted by the General Counsel
and the Respondent in support of their respective
pe itions.
Jpon the entire record, and from my observation of the
aneanor of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a New Jersey corporation with its
principal office and place of business in Chicago, Illinois,
is engaged in the business of marine construction, river
and harbor improvement, inspection of underwater facili-
ties, and furnishing related services in the Great Lakes
and other areas in the United States. It conducts its
operations through two divisions - one in Chicago and the
other in Cleveland, Ohio, of which the Buffalo installa-
tion, here involved, is a part. In connection with its opera-
tions, the Respondent annually purchases and delivers to
its worksites in the various States goods and materials
valued in excess of $50,000 which originate outside the
States where the worksites are located. The Respondent
also performs services valued in excess of $50,000 in
States other than Illinois, where its principal place of
business is situated.
The Respondent concedes, and I find, that it is engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act. I further find that effectuation of the policies
of the Act warrants the Board's assertion of jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
It is undisputed that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
' On April 12, 1965, Gordon C Allen filed a charge in Case
3-CA-2609, alleging discrimination against him. A copy of his charge was
served on the Respondent the same day by registered mail. Based thereon
a complaint issued which led to a settlement agreement executed by the
parties and approved by the Regional Director on August 2, 1965 On
December 9, 1966, Allen filed another charge of discrimination in Case
3-CA-3120, a copy of which was served on the Respondent the same day
by registered mail Concluding that the Respondent had failed to comply
with the terms and conditions of the settlement agreement, the Regional
Director on January 31, 1967, reopened Case 3-CA-2609, withdrew his
approval, and vacated the settlement agreement. In the meantime, on
January 26, 1967, Manson Construction Company filed a charge in Case
3-CA-3147, a copy of which was similarly served on the Respondent the
same day. On January 31, 1967, the consolidated complaint based on the
foregoing charges issued herein.
169 NLRB No. 90
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Discrimination Against Gordon C. Allen
1. Allen's history of employment; expulsion from the
Union; the Respondent's withholding of employment
Allen has been a commercial diver for some 10 years in
the Buffalo area, offering his services to marine construc-
tion and industrial enterprises . He first went to work for
the Respondent in 1957 when he was referred to a diving
job by the Union in which he was then a member.
Thereafter, he continued to be hired by the Respondent
in that capacity, as were other divers, on an irregular
basis on various jobs lasting from one to a few days and
occasionally longer . It was the Respondent's practice
when it needed Allen's services to call him directly. How-
ever, except for a day or two job in July 1965, the
Respondent has not called him or offered him any em-
ployment since his difficulties began with the Union
which led to his expulsion in the early part of 1965, as re-
lated below. The Respondent does not question Allen's
competency or ability to perform the diving jobs which
were available during the period following his union trou-
bles. It does insist , however, that it hired Edward Cwick
for those jobs in preference to Allen, as it assertedly had
always done , because it regarded Cwick the more com-
petent and experienced of the two and was available to
accept those jobs. Significantly, Allen performed more
work for the Respondent than any diver it employed dur-
ing the 2-year period (1963-1964) immediately preceding
the period of the Respondent's alleged discrimination
against him . Attached hereto as Appendix A is a summa-
ry of the hours worked by and the earnings of Allen,
Cwick, and other divers employed by the Respondent
from 1960 to the date of the hearing, as reflected in the
Respondent's records put in evidence.
On December 2, 1964, William Burke, the Union's
business agent, brought charges against Allen for crossing
and working behind a picket line posted by the Union
against Manson Construction Company with whom it had
a labor dispute. Following a hearing before a union trial
board on January 18, 1965,2 Allen was found guilty on
February 9 as charged and, on recommendation of the
trial board, was fined $100 and expelled from the Union
on March 26.
In the meantime , about January or February, Thomas
Kenny, assistant division manager at the head of the
Respondent's Buffalo installation,3 telephoned Burke and
informed him that the Company expected to have a diving
job available but that it was not definite.4 In the course of
their conversation, Kenny stated that he understood that
Allen was having some trouble with the Union and
inquired whether Allen was still a member. Burke an-
swered that Allen was still a member but added either
that his trial on the charges had not yet been held or that
a decision was forthcoming.
In February, James J. Veverka, the Respondent's
assistant superintendent in charge of Buffalo operations
in the absence of Kenny, directed David Regan, who was
then a dredge captain, to call the Union for a diver for an
Allied Chemical Company job.5 Regan, a conceded su-
pervisor, thereupon telephoned Burke for a diver and
asked who was available. Burke named Cwick and
Powers and Regan chose Cwick. 6 In response to Regan's
inquiry as to what Allen was doing, Burke stated that he
had a little union trouble. Burke purportedly did not
elaborate upon this remark.
on January 18 and 19 and March 1 through 5, Cwick
worked for the Respondent on the General Mills and Al-
lied Chemical jobs, respectively. Upon learning of these
jobs after they were completed, Allen telephoned the
Respondent and spoke to Veverka "to find out what the
story was" and asked why he wasn't called. Veverka
replied that Union Business Agent Burke had informed
Kenny that Allen was no longer in the Union and that, if
Kenny needed a diver, he would have to use Cwick or
Powers. Veverka also advised Allen, in response to his
question, that Kenny was expected to return to his office
the early part of April.
During the first week in April Allen visited the Re-
spondent's office where he spoke to Kenny. Both partici-
pants in the ensuing conversation gave different versions
of what transpired. According to Allen, the following oc-
curred: Kenny remarked that he heard that Allen was
having trouble with the Union. Allen explained that he
had crossed a picket line while working for Manson Con-
struction Company, a nonunion employer, and was ex-
pelled from the Union for that reason. Allen then asked
Kenny what information Burke had given him concerning
this matter and Kenny replied that Burke had stated that
Allen had trouble with the Union. Answering in the nega-
tive Allen's further inquiry whether Burke had told him
that he could not use Allen, Kenny added, however, that
the collective-bargaining agreement between the Union
and the employer association, in which the Respondent
was a member, prohibited the Company from employing
nonunion help7 and that therefore, it could not use him.
This prompted Allen to raise the subject of the "right-to-
work-laws," with which Kenny asserted a lack of
familiarity. Kenny then repeated his inability to hire Allen
until he got back in the Union. After some discussion
concerning the Respondent's Buffalo River Improvement
Project and Cwick's employment on various jobs, Allen
expressed a desire to resume working for the Respond-
ent. Kenny responded that "most likely [Allen] .
would be able to straighten things out with the Union"
and that they "would be able to work together again."
Kenny's testimony is best set forth in his own words:
. I asked [Allen] ... what was going on. He said
he was in a little legal trouble. He didn't elaborate. I
didn't know what the trouble was. I had heard before
there was a picket line on a job he was working on. I
2 Unless otherwise indicated , all dates refer to 1965.
S By reason of its membership in Construction Industry Employers' As-
sociation , the Respondent was party to a union-security agreement
between the association and the Union, which was executed on June 8,
1963, for a term expiring on May 31, 1966. There is some testimony that
the Respondent withdrew from the association during the term of this
agreement.
" The evidence shows that the Respondent assigned Cwick to a diving
job for General Mills on January 18 and 19, 1965, and to another job for
Allied Chemical from March 1 to 5, 1965.
5 Although several witnesses referred to this job as General Chemical,
the Respondent's records show that the customer was Allied Chemical
Company.
8 Regan testified that he would have chosen Cwick over Allen on the
basis of ability had Burke also mentioned Allen's availability, although
Regan conceded that Allen was a satisfactory diver.
' However, there is nothing in the collective-bargaining agreement
between the parties imposing such a job restriction, which would be
patently illegal.
GREAT LAKES DREDGE & DOCK CO. 633
didn't know what the picket line was for. I didn't
know what the trouble was at all. He said he was in
it and had not come to a solution yet. And I was feel-
ing sorry. I don't like to see anybody with trouble
like that. I told him so. I told him I hoped he would
get things straightened out without too much trouble.
As far as not employing him because he did not be-
long to the Union, I have never asked a man if he be-
longed to the Union. I didn't know until recently that
he [Allen] belonged.
After specifically denying that he told Allen on this occa-
sion that he could not hire him until he straightened out
his trouble with the Union, Kenny continued:
. I told him I was sorry he was in trouble and I told
him that I hoped that he would get it straightened
out. I didn't feel I should get involved in that busi-
ness. It's happened on another job, another contract.
I didn't have an axe to grind with either side. I didn't
want that carried over to our work. [Emphasis
supplied. ]
Also edifying is Kenny's testimony given under cross-
examination:
Q. Now, you did tell Allen that you had a good
relationship with the Union and hoped he could get
things straightened out?
A. Hoped he could get things straightened out.
Q. You told him you had a good relationship?
A. I told him I had no axe to grind with the
Union. We had a good relationship and I wanted to
keep them that way. [Emphasis Supplied]
In addition, Kenny categorically denied under cross-ex-
amination that he was aware of Allen's former union
membership until several months after the foregoing con-
versation, when Case 3-CA-2609 was originally settled
on August 2.
I find Allen's account more plausible than Kenny's and
consonant with the pattern of events disclosed by the
evidence. Indeed, although Kenny categorically denied
telling Allen that he could not hire him until he
straightened out his difficulties with the Union, Kenny's
other testimony, recited above, quite clearly suggests a
determination not to employ Allen until he regained his
good standing with the Union and thus avoid compromis-
ing the Company's good relations with the Union and in-
jecting Allen's union problems into the Company's jobs.
Moreover, Kenny was less than candid in denying
knowledge of Allen's former union membership which he
claimed to have first learned on August 2. Such professed
ignorance needs no other refutation than the undisputed
testimony of Union Business Agent Burke that several
months earlier, in January or February, Kenny asked him
whether Allen was still a member. I, accordingly, credit
Allen's version of his conversation with Kenny and so
much of the latter's testimony not inconsistent with it.
ly refused to employ him because he did not hold mem-
bership in the Union. Based thereon a complaint issued
on May 28. During the pendency of those proceedings,
the Respondent hired Allen for a job at Avon Lake,
where he worked 20 hours during the week ending July
18. This job was in an area outside the Union's jurisdic-
tion.
Thereafter, on August 2, the parties entered into a set-
tlement agreement with the approval of the Regional
Director for Region 3. Under this agreement the Re-
spondent, without admitting that it had violated the Act,
agreed, inter alia , to "offer employment, when available,
to Gordon C. Allen without regard to his membership or
non-membership in the Union."
At an unidentified time after the settlement agreement
was entered into , Allen sought employment from Kenny
who referred him to John Wohlgemuth, superintendent of
the Cleveland Division . Thereupon, Allen spoke to
Wohlgemuth, who was supervising the Buffalo River Im-
provement Project, about a diving job. Wohlgemuth in-
formed him that he had already hired Edward Cwick and
Robert Baldry8 but would keep Allen in mind should a
need arise for another diver.
Although after the settlement agreement the Respond-
ent had available diving jobs which Allen was fully capa-
ble of performing, the Respondent did not call Allen or
otherwise offer him such employment, except the July job
mentioned above. Instead, it hired Cwick for those jobs
for the asserted reason that he was more experienced and
qualified.9 It is also noted that for 17 hours during the
week ending December 11, 1966, the Respondent em-
ployed Robert Smith of Erie, Pennsylvania, to assist
Cwick on a job. According to the testimony of Kenny and
Cwick, Smith was hired at the latter's request, even
though this entailed additional travel expenses which the
Respondent was obliged to pay Smith. Significantly,
Cwick had previously worked with Allen on a number of
jobs and found no fault with his performance.
In November 1966, Kenny discussed with Norman
Manson, president of Manson Construction Company,
the possibility of leasing some marine equipment. During
the course of their conversation Manson asked about Al-
len's unfair labor practice case . Kenny replied that it was
settled. In answer to Manson's further inquiry whether
Allen would ever work for the Respondent, Kenny
stated, "No, because it wasn't good idea to mix union
men with non-union men."
On December 9, 1966, Allen filed new unfair labor
practice charges of discrimination in Case 3-CA-3120.
Concluding that the Respondent had not complied with
the terms and conditions of the above-mentioned settle-
ment agreement , the Regional Director on January 31,
1967, reopened Case 3-CA-2609, withdrew his approval
of that agreement, and issued the consolidated complaint
in the instant proceedings.10
2. Subsequent events
As previously shown , following his above conversation
with Kenny , Allen filed, on April 12 , a charge in Case
3-CA-2609, alleging that the Respondent discriminatori-
8 Robert Baldry and his brother, William, are divers permanently at-
tached to the Cleveland Division It has been the Respondent's practice
to assign them to Buffalo jobs when not otherwise engaged on Cleveland
Division projects.
9 Although the Baldry brothers were used on Buffalo jobs after the set-
tlement agreement , the General Counsel apparently does not contend that
3. Concluding findings respecting alleged discrimination
against Allen
From a careful evaluation of all the evidence and the
contentions of the parties, I find that the Respondent has
they were given discriminatory preference over Allen, as the General
Counsel claims with respect to Cwick.
10 As indicated above, the complaint also incorporated the unfair labor
practice charges filed by Manson Construction Company in Case
3-CA-3147.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminated against Allen in the assignment of available
diving jobs since about January 18, 1965,11 because of his
difficulties with the Union and his subsequent expulsion
from that organization. It is more than a strange coin-
cidence that Allen was not called by the Respondent for
any diving job, except one, since the time he fell into
union disfavor. It is even more incomprehensible that the
Respondent should withhold employment from him after
utilizing his services during the 2 preceding years to a
greater extent than any other diver, including Cwick,
whom the Respondent subsequently assigned to availa-
ble work in preference to Allen. I am not persuaded by
the Respondent's attempted explanation for this change
in Allen's treatment. It strongly urges that it has always
regarded Cwick a more desirable employee than Allen
because of his greater diving experience and ability and
that the only reason it used Allen more frequently during
the 2 previous years was the fact Cwick was not available
for employment or was engaged elsewhere when his ser-
vices were required. However, other than vague generali-
ties and self-serving declarations, the Respondent has
produced no convincing evidence that before hiring Allen
for a specific job, it invariably first offered or attempted
to offer Cwick such employment or otherwise ascertained
Cwick's unavailability. Moreover, it is quite revealing
that the only job for which the Respondent hired Allen
after he incurred the Union's displeasure was in July
1965, while the proceedings in Case 3-CA-2609 were
pending, and that job was located in an area outside the
Union's jurisdiction.
Apart from the fact that the Respondent's professed
reason for its sudden withholding of employment from
Allen is unquestionably suspect, the record discloses
quite clearly that it was Allen's bad standing in the Union
which prompted the treatment the Respondent accorded
him. Thus, as found above, in January or February 1965,
when Assistant Division Manager Kenny discussed with
Union Business Agent Burke the Company's anticipated
need for a diver, Kenny raised the subject of Allen's
union difficulties and inquired about his membership
status. On another occasion in February, when Regan,
the Respondent's then dredge captain, telephoned Burke
regarding the employment of a diver, he too, asked about
Allen's union troubles. And when Allen thereafter asked
Assistant Division Superintendent Veverka why he was
not called to work on the two earlier jobs which Cwick
had performed, Veverka told Allen that Burke had ad-
vised Kenny that he (Allen) was no longer in the Union
and that, if Kenny needed a diver, he would have to use
Cwick or another diver named Powers. On still another
occasion in April 1965, Kenny himself, although obvi-
ously mistaken, told Allen that the Company's contract
with the Union prohibited him from employing nonunion
help and that therefore he could not use Allen until he
straightened things out with the Union. Indeed, by his
own admission at the hearing, Kenny "didn't feel [that
1I Because of the day-to-day nature of diver employment and the availa-
bility of other divers for this work, it is well-nigh impossible to determine
with precision the date when the discrimination against Allen first began.
The above date reflects the end of the payroll week during which a diving
job first became available following the inception of Allen's union difficul-
ties.
12 In support of its denial of discrimination against Allen, the Respond-
ent also refers to Allen's holding a regular full-time position with another
employer in addition to his other diving activities . However, this , too, is
an afterthought and does not militate against a finding of unlawful dis-
crimination which I make herein. It is undisputed that Allen was never
he] should get involved" in Allen's union difficulties lest
he jeoparidze the Respondent's good relations with the
Union. Finally, Kenny's unregarded remarks to Manson,
president of Manson Construction Company, that Allen
would never work for the Respondent because "it wasn't
a good idea to mix union men with non-union men,"
leaves no doubt that it was Allen's bad standing in the
Union that dictated the Respondent's decision not to em-
ploy him.
In defense of its conduct, the Respondent also urges
that it was under no obligation to employ Allen because
he was in competition with the Company for diving and
underwater repair work in and around the Buffalo area.
Manifestly, this is a transparent afterthought and was
never considered by the Respondent as a reason for deny-
ing Allen employment. 12 In fact, Cwick, whom the
Respondent admittedly now employs in preference to Al-
len, is engaged in the same independent business activi-
ties as Allen. Whether Allen's private activities are a
justification for denying him affirmative relief will be later
discussed in the remedy section of his Decision.
Accordingly, I conclude that the Respondent has sub-
jected Allen to discriminatory treatment in the assign-
ment of diving jobs because of his union difficulties and
expulsion and has thereby violated Section 8(a)(3) and (1)
of the Act.
B. Alleged Discrimination Against the Crew of Manson
Construction Company
1. The facts
The gist of this phase of the General Counsel's case is
that the Respondent refused to lease a barge and crane
from Manson Construction Company together with its
crew13 because the crewmen were not members of the
Union and that this constituted discrimination against the
crew violative of Section 8(a)(3) and (1) of the Act.
The pertinent facts established by the evidence are as
follows.14 In connection with one of its marine jobs, the
Respondent required a barge and crane to lift a heavy,
concrete plug in a pipeline. Not having its own equipment
at its disposal, Assistant Division Manager Kenny in
November 1966 discussed with Norman Manson, pre-
sident of Manson Construction Company, the possibility
of leasing such equipment without a crew15 from that
company. Eager that the Manson crew have additional
work, Manson expressed interest in the proposition pro-
vided that the crew, which had no union affiliation, be
also taken. This included the employment of Gordon
Allen who was then working as a diver for Manson.
Kenny rejected the idea of hiring Manson's crew be-
cause he intended using the Respondent's own Em-
ployees on the job. Kenny, however, also remarked
that he would be inviting trouble on the Company's
Buffalo and other Lake jobs if he employed the nonunion
refused a job because of any shortcomings as a diver or other employ-
ment.
I' The complaint lists the following members of the crew: Donald
Lewis, Wesley Northrup, Douglas Northrup, James Hartman, Paul Hart-
man, Gordon Allen, and Forrest Winch.
14 These findings are based on the combined testimony of Norman
Manson and Thomas Kenny, much of which is specifically not con-
tradicted or which I regard more probable and credible.
Is It is customary in the Buffalo area to lease marine equipment either
with or without a crew.
GREAT LAKES DREDGE & DOCK CO.
crew. This led to a discussion of Allen 's unfair labor prac-
tice case against the Respondent , the subject of the
preceding part of this Decision , and the Respondent's
declared intention not to employ Allen because "it wasn't
a good idea to mix union men with non -union men." Also
mentioned in the conversation was the weight of the plug
to be lifted ; a rental rate of $15 an hour for the equipment;
and the uncertainty of the date when the equipment
would be required . Furthermore , Manson indicated that,
although he desired that his crew be hired , the "chances"
were that he would have other work for his men. The con-
versation ended , however, with nothing definitely being
decided and with the understanding that Kenny would in-
spect the equipment at Manson 's yard and call Manson
back.
Kenny thereafter visited Manson 's yard but could not
find the equipment he needed . About 2 weeks after their
first telephone conversation , Kenny called Manson and
advised him that he was unable to locate equipment in
Manson 's yard which would serve his purposes. They
then proceeded to discuss Kenny's need and the ways
and means whereby Manson 's equipment could be made
adequate for the job . Apparently , Kenny repeated his
decision not to use the Manson crew . Although Manson
assured Kenny he could have the equipment when he
wanted it and suggestions were made about towing the
equipment to the job "without mixing" the crews, no firm
agreement was reached.
Following this second conversation , Kenny learned
that the weight to be lifted was greater than he had first
anticipated because of the accumulation of mud on top of
the plug. After visiting Manson 's yard again and survey-
ing the equipment which was under consideration, Kenny
concluded that it was, not substantial enough to do the job.
A few days later, on November 30, Kenny observed
Manson's barge being towed down the river . Presuming
that the barge would not in any event be available the
next day when the work in question was to start, and
without conferring with Manson any further , Kenny ar-
ranged with the Army Corps of Engineers to lease its
derrick . 16 However , in accordance with the Army Corps'
rules, Kenny was obliged to take its crew to operate the
equipment . As a consequence , the Respondent was over-
manned since Kenny also used the Respondent's em-
ployees on the job . Significantly , no evidence was
presented as to whether or not the Army Corps' crew had
any union affiliation.
2. Concluding findings with respect to the Manson crew
It is undisputed that the Respondent sought to charter
Manson's equipment without a crew, intending to use
only its own employees to perform the job it had un-
dertaken, and that it was Manson who first tried to per-
suade Kenny to hire his crew. Moreover, there is abso-
lutely no evidence that the Respondent had any job
openings or that it wa's otherwise in the market for such
help. In these circumstances, I find no basis for finding,
as the complaint alleges, that the Respondent discrimina-
torily refused employment to Manson's crew, for whose
services it had no need. While Kenny's remarks to Manson
betrayed a disposition to discriminate against nonunion
employees, they do not automatically establish, on the
635
facts of this case, that the Manson crew was actually de-
nied employment for discriminatory reasons. It is true
that ultimately the Respondent hired the crew of the
Army Corps of Engineers to operate the equipment
which it chartered from that organization. However,
apart from the fact that there is no evidence that this was
a union crew, it is quite clear that the Respondent was
obliged, under the Army Corps' rules, to accept the crew
as a condition of leasing the equipment.
Furthermore, there is testimony given by Kenny, an
expert in the marine construction field, that, in his
opinion, the Manson equipment was inadequate for the
job it was needed. I find that the General Counsel did not
convincingly establish that this testimony did not reflect
Kenny's honest belief. For this reason, as well as those
mentioned above, I further find, contrary to the General
Counsel's contention, that Kenny's rejection of Manson's
equipment as unsuitable for the Respondent's purposes
was not shown to be a pretext to mask a discriminatory
motivation in refusing to hire the Manson crew.
In sum, I conclude that the General Counsel has failed
to prove by a preponderance of credible evidence that the
Respondent discriminated against the Manson crew in
violation of Section 8(a)(3) and (1) of the Act. Ac-
cordingly, I recommend dismissal of the allegations of the
complaint respecting this unfair labor practice.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow thereof.
V. THE REMEDY
Pursuant to Section 10(c) of the Act, I recommend that
the Respondent cease and desist from engaging in the un-
fair labor practices found and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
I have found that the Respondent has discriminatorily
denied Allen diving jobs because of his difficulties with
the Union and his expulsion from that labor organization.
Accordingly, I recommend that the Respondent be or-
dered to offer Allen employment to available diving jobs
on the same nondiscriminatory basis prevailing prior to
the time he fell into disfavor with the Union, without
prejudice to his seniority or other rights and privileges. I
find wholly unpersuasive the Respondent's argument that
Allen should be denied this conventional relief because
he is engaged in a competing business with the Respond-
ent of performing underwater repair work for companies
in the Buffalo area. Admittedly, diving jobs in this area
are not full-time jobs. Evidently for this reason, Allen, in
partnership with his brother, a school teacher, offers his
diving services as an independent contractor, as well as
an employee. Significantly, Allen has engaged in such in-
dependent activity before he began working for the
Respondent on day-to-day assignments and continued to
16 To qualify to lease the Army Corps' equipment, Kenny represented
that no other adequate equipment was available in the area. Kenny was
also required to secure additional insurance.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be so engaged during the period the Respondent utilized
his services, without any objection from it. Indeed, Ed-
ward Cwick, whom the Respondent has been employing
for diving work in preference to Allen, is engaged in the
same type of business as Allen. In these circumstances,
I can hardly believe that the Respondent , a multimillion
dollar enterprise, is seriously concerned about Allen's in-
dependent activity.17 Accordingly, I find that it would not
effectuate the policies of the Act to deprive the victim of
discrimination of the job opportunities he would other-
wise have had with the Respondent had he maintained his
goodstanding in the Union.18
I also recommend that the Respondent make Allen
whole for any loss of earnings he may have suffered by
reason of the discrimination against him by payment to
him of a sum of money equal to that which he normally
would have earned from the date he was first discrimina-
torily denied employment to the date of the offer of em-
ployment, less his net earnings during the said period.19
Backpay shall be computed with interest on.a quarterly
basis in the manner prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289, 291-294, and Isis
Plumbing & Heating Co., 138 NLRB 716. Of course,
credit shall be allowed the Respondent for the backpay
payment made to Allen pursuant to the settlement agree-
ment of August 2, 1965.
To facilitate the computation, as well as to clarify the
named employee 's right to employment , the Respondent
shall make available to the Board, upon request, payroll
and other records necessary and appropriate for such pur-
poses. I further recommend that the Respondent notify
this employee of his right to employment, on application,
if he is serving in the Armed Forces of the United States.
The posting of an appropriate notice is also recom-
mended.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Gordon C. Allen to encourage member-
ship in, and activities on behalf of, the Union, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
4. By reason of the foregoing conduct, the Respondent
has interfered with, restrained, and coerced employees in
17 The Respondent also mentions in its brief that Allen has also been
regularly employed in a job with another employer for the past 17 years
and that such employment impairs his efficiency and creates a risky situa-
tion of the Respondent 's jobs. It is 4 sufficient answer that the Respond-
ent has never found Allen's job performance unsatisfactory.
11 The cases relied on by the Respondent to support a denial of rein-
statement are factually distinguishable from the instant case. In
DeGeorge Transfer & Storage Co., 143 NLRB 83, the employer
discharged several employees for the nondiscriminatory reason that they
had regular full-time employment elsewhere. In Philanz Oldsmobile, Inc.,
137 NLRB 867, the Board found no discrimination in the employer's
refusal to reinstate a striker to his full -time job when it learned that the
striker was engaged in a competing business during his off hours.
Manifestly , the Respondent in the present case did not deny Allen em-
ployment because of his other activities but for impermissible union-re-
lated reasons. In Marshall Maintenance Corp., 145 NLRB 538, the
the exercise of their statutory rights within the meaning
of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
6. The Respondent did not refuse to hire the crew of
Manson Construction Company in violation of Section
8(a)(3) and (1) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case , and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended , it is ordered that the,Respondent , Great Lakes
Dredge & Dock Company , Buffalo , New York, its of-
ficers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discriminating against Gordon C. Allen or any
other employee because he is not a member of
Piledrivers, Dock Builders , Trestle , Crib, and Break-
water Builders Local 1978 , United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, nor en-
courage membership in that labor organization by refus-
ing to employ or by discriminating against such employee
in any other manner in regard to his hire or tenure of em-
ployment or any term or condition of employment , except
to the extent permitted by the proviso to Section 8(a)(3)
of the Act.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Gordon C. Allen employment as a diver on
available jobs on the same nondiscriminatory basis he en-
joyed prior to his difficulties with the above-named union
and his expulsion from that organization , without preju-
dice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have suf-
fered by reason of the discrimination against him, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Notify Gordon C. Allen if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
Board permitted the employer to condition the offer of reinstatement of
two employees upon their divesting themselves of their interest in a com-
peting enterprise which they had formed with a discharged supervisor. In
the instant case, however, apart from the irregular nature of Allen's em-
ployment as a diver, his outside activity , like Cwick's, has been of no ap-
parent concern to the Respondent.
11 As Allen's previous employment with the Respondent was on a day-
to-day basis, the net earnings to be subtracted from the gross backpay due
him shall be only the money he actually earned on those days he would
have been employed by the Respondent had it not discriminated-against
hint. However , Allen's earnings from his regular position with Spaulding
Fibre Co ., shall not be included in the computation since this was a job he
had always had whit working for the Respondent. Difficult as the
problem manifestly ascertaining the amount of backpay due Allen, it
is a matter particularly appropriate for consideration in the compliance
stage of these proceedings.
GREAT LAKES DREDGE & DOCK CO.
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
and the right to employment under the terms of this
Recommended Order.
(d) Post at its place of business in Buffalo, New
York,copies of the attached notice marked "Appendix
B. "20 Copies of said notice, on forms provided by the Re-
gional Director for Region 3, after being duly signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
2 0 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
637
where notices to its employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered , defaced , or covered by
any other material.
(e) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.21
IT IS FURTHER ORDERED that the consolidated com-
plaint be , and it hereby is, dismissed insofar as it alleges
that the Respondent has discriminated against the crew
of Manson Construction Company in violation of Sec-
tion 8 (a)(3) and (1) of the Act.
21 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 3, in writing, within 10 days from the date of this Order , what steps
Respondent has taken to comply herewith."
APPENDIX A
1960 .1961 1962 1963
Name Hours Earnings Hours Earnings Hours Earnings Hours Earnings
Allen 276 1,745.19 81/2 57.69 84 562.38 591 5 , 398.60
Cwick 1102 1/2 9,044.49 1,665 1/2 13,431.87 576 4,890.04 249 1,910.96
Griffin 1161 9,159.85 1.712 13, 363 . 07 0 0 0 it
Powers 981/2 597.22 0 0 30 223.56 0 0
R. Baldry - -. 1,556 12,620.01 500 4,093.60 " 505 1/2 4,603.23
W. R. Baldry - - - - 260 1/2 1,989.95
R. Smith
1964 1965 1966 1967
Allen 437 1/2 3,765.81 36 272.02 0 0 0 0
Cwick 3021/2 2,597.87 441 3,097.58 162 1,446.39 8 80.00
Griffin 0 0 0 0 0 0 0 0
Powers 0 0 0 0 0' 0 0 0
R. Baldry 269 1/2 2,533.73 524 3,817.42 0 0 0 0
W. R. Baldry 2241/2 2,016.75 441/2 355.76 : 0 0 0 0
R. Smith - -- -- - 17 137.32 0 0
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify out em-
ployees that:
WE WILL NOT deny Gordon C. Allen, or any other
employee or job applicant, employment with the
Company or discriminate against him in any other
manner in regard to his hire or tenure of employment
or any term or condition of employment because of
his troubles with Piledrivers, Dock Builders, Trestle,
Crib and Breakwater Builders Local 1978, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, or because of his expulsion from that
labor organization, except to the extent permitted by
the proviso to Section 8(a)(3) of the Act.
WE WILL offer Gordon C. Allen employment as a
diver on available jobs on the same nondiscriminato-
ry basis on which jobs were previously offered to him
before his union troubles. began, without prejudice to
his seniority or other rights and privileges he previ-
ously enjoyed.
WE WILL also reimburse Gordon C. Allen for any
earnings lost by him by reason of our discrimination
against him.
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to employment upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
GREAT LAKES DREDGE &
DOCK COMPANY
(Employer)
Dated By
(Representative) (Title)
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive or compliance with its provisions, they may communicate
days from the date of posting and must not be altered, directly with the Board's Regional Office, The 120 Build-
defaced , or covered by any other material. ing, 120 Delaware Avenue, Buffalo, New York 14202,
If employees have any question concerning this notice Telephone 842-3100.