American Dredging Co.

AMERICAN DREDGING COMPANY 139 [The Board certified that a majority of the valid ballots was not cast for Engineers and Architects Association, and that said organization is not the exclusive representative of the Employer's ,employees in the unit found appropriate.] American Dredging Company and Samuel Blair and Local 825 (Dredgemen's Branch), International Union of Operating Engineers, AFL-CIO, Party to the Contract. Case No. 4-CA- 1554. March 1 2, 1959 DECISION AND ORDER On July 2, 1958, Trial Examiner Sydney S. Asher, Jr ., issued _his Intermediate Report in the above-entitled case finding that the Respondent has engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent, General Counsel, and Local 825 (Dredgemen's Branch), Interna- tional Union of Operating Engineers, AFL-CIO, Party to the -Contract, filed exceptions to the Intermediate Report and briefs in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning]. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations which are not inconsistent with this decision. 1. The Respondent excepts to the Trial Examiner's finding, based largely upon the credited testimony of employee Samuel Blair, that Respondent discriminatorily replaced Blair as a wiper on the dredge Philadelphia when it left drydock because of Blair's past insistence that the Union process his grievances concerning overtime pay. We find, contrary to Respondent's contention, that the clear preponderance of all the relevant evidence does not demon- '_ The Respondent and Local 825 have requested oral argument. This request is hereby denied because the record , the exceptions, and the briefs adequately present the issues and the positions of the parties. 123 NLRB No. 18. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strate that the Trial Examiner erred in crediting Blair's testimony and accordingly adopt his credibility rulings. 2. However, we do find merit in the Respondent's further con- tention that, on the basis of the testimony which the Trial Examiner credited, the General Counsel did not satisfy his burden of proving a prima facie case of discrimination. Blair worked as a wiper, or water-tender, on Respondent's dredge Philadelphia from July 1954 until his layoff on February 28, 1957. During the last year of his employment he worked under the supervision of his brother, William Blair. Dredge employees: report at the dock where a crew boat transports them to the dredge and, at the end of the shift, returns them from the dredge to the dock. On two unspecified occasions between July 1954 and mid- February of 1957, Respondent's crew boat was late arriving at the dredge and, consequently, was late in returning Samuel Blair to the dock. On each occasion Blair's complaint to the Union's shop, steward resulted in Blair's receiving overtime pay. In mid-Febru- ary 1957, the crew boat was again late in returning Samuel Blair, William Blair, Frank Ayres, and Richard Owens to the dock. The next day, William Blair told Respondent's chief engineer on the dredge, Robinson, that he thought the men were entitled to over- time pay for the lateness of the boat, but Robinson replied, "they didn't have it coming.'' William Blair then declared that he would take the matter up with Carl Jones, the Union's shop steward on the dredge. William Blair and Samuel Blair together repeated the complaint to Jones, who said that, while he thought no over- time was due, he "would look into the matter." Neither of the Blairs ever received any overtime for this complaint, and the issue was not carried any further. However, employees Ayres and Owens made similar complaints and did receive overtime pay. On February 28, 1957, the Philadelphia entered drydock. Samuel Blair came aboard that day for the 4 p.m. to midnight shift and found his name on the work list posted in the engineroom to work on the valves. During this shift, Chief Engineer Robinson gave Blair a "layoff slip" and instructed him to "take it up to the yard" on the following day, assuring Blair that he would be recalled when the dredge left drydock. We find, in agreement with the Trial Examiner, that the selection of Blair for temporary layoff was nondiscriminatory and was, in fact, due solely to a reduction in force occasioned by the dredge entering drydock. On the following day, Blair went to Respondent's Camden, New Jersey, yard and gave the "layoff slip" to Olson, Respondent's personnel manager, who said that if he returned Blair to work "there would be a lot of red faces" because "someone had made 2 Standard Dry Wall Products, Inc., 91 NLRB 544, 545, enfd . 188 F. 2d 362 ( C.A. 3). AMERICAN DREDGING COMPANY 141 a complaint" about Blair. About 2 weeks thereafter, Blair again returned to Olson who said, "Well, Blair, I might as well tell you. Nobody else is going to take the blame for this. You was laid off for being an agitator and a trouble-maker." To this Blair responded, "Well, Mr. Olson, if you call sticking up for your rights being an agitator and a trouble-maker, I'm the biggest agitator in the world." Right after the Philadelphia left drydock, apparently during the last week of March or the first week of April 1957, Respondent permanently replaced Blair by another, unidentified wiper, who in turn, 3 days later, was replaced by one Edward Garrarn, who, at the time of the hearing, still worked under Super- visor William Blair in the engineroom as a wiper. The Trial Examiner concluded that the General Counsel, by proving the foregoing facts, made out a prima facie case that Respondent discriminatorily replaced Blair in violation of Section 3(a) (3) of the Act because it knew of and resented his past in- sistence that the Union process his grievances concerning the late- ness of the crew boat. However, we do not thing that either these facts or the record as a whole supports the Trial Examiner's infer- ence that "Respondent knew that Samuel Blair had invoked the Union's aid in processing grievances regarding the lateness of the crew boat on three different occasions." It is true, as the Trial Examiner noted, that Blair's first two complaints were compensated and necessarily came to the Respond- ent's attention. However, it does not appear that these isolated incidents, standing alone and without the cumulative effect of the third, prompted Blair's replacement. This third complaint was made to Shop Steward Jones, an agent of the Union and not the Employer, who merely promised to "look into the matter." The record contains no affirmative evidence that Jones ever in fact com- municated this grievance to the Respondent. Nor is this essential element of knowledge supplied by the fact that the Blairs were not compensated. Indeed, it is not unreasonable to believe that Samuel Blair, whose first two complaints, when communicated, were com- pensated, was not paid overtime for the last complaint because Jones, who himself voiced doubts about the validity of the claim, failed or refused to bring it to Respondent's attention. Moreover, the fact that the complaints of Ayres and Owens, who were literally in the same boat as the Blairs, were paid by the Respondent, tends to support the conclusion that had Samuel Blair's claim been made known to Respondent it would likewise have been paid. We are, therefore, not persuaded that Olson's statement, attributed to him by Blair,3 that Blair was "laidoff" for being an "agitator and a 3 Olson was not called as a witness at the hearing before the Trial Examiner , and this statement is based on Samuel Blair's credited testimony. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trouble-maker" related to his protected concerted activity in request- ing the Union to process his grievances, and the Trial Examiner's inference to the contrary is pure conjecture. Accordingly, we con- clude and find that the General Counsel failed to establish a prima facie case of discrimination within the meaning of Section 8(a) (3) of the Act, and since no burden of going forward with proof of justification for the discharge ever arose, the Respondent was under no obligation to explain its action in replacing Blair. The com- plaint, insofar as it alleges conduct to be a violation of Section_ 8(a) (3) and (1) of the Act, is hereby dismissed.4 THE REMEDY We find, in accord with the Trial Examiner, that Respondent contributed illegal financial assistance to the Union by compensating- one of its supervisors, the hiring engineer, to represent the interests of the employers in grievance matters; that Respondent violated. the Act by maintaining and giving effect to illegal closed-shop hiring provisions in the collective-bargaining contract between Respondent and the Union; and that by unlawfully delegating its hiring: authority to the hiring engineer, who was a member of the Union, and, as such, bound by the International's constitution to hire only members of the Union, Respondent in effect agreed to operate under an illegal closed-shop agreement in contravention of the Act.. The General Counsel excepts to the failure of the Trial Examiner to include in his recommendations that the Board apply its Brown Olds remedy 5 and require Respondent to reimburse its employees for initiation fees and dues which they have paid to the Union.. In support of this exception, the record shows that by the unlawful provisions of the contract involved herein, the Respondent has. unlawfully encouraged employees to join the Union in order to^, obtain dredging work carried on by the Respondent, thereby inevi- tably coercing the employees to pay dues and assessments to the- Union .6 Therefore, in order to expunge the effects of these unlawful exactions, we shall order the Respondent to refund to its present, and former employees the dues and assessments which the employees have thus been required to pay. The Respondent's period of liability shall include the period beginning 6 months prior to the filing and service of the charge herein and shall extend to all moneys thereafter 4 Member Fanning does not concur with this portion of the decision . He believes, for the reasons given by the Trial Examiner in his Intermediate Report, that the General Counsel has established a prima facie case of a discriminatory failure to recall Samuel Blair which the Respondent did not overcome. Accordingly, he would affirm the Trial Examiner's recommendations in their entirety. 5 United Association of Journeymen & Apprentices of Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (J. S. Brown-E. F. Olds Plumbing & Heating - Corporation ), 115 NLRB 594. 0 Broderick Wood Products Company, et al., 118 NLRB 38, enfd . 261 F. 2d 548 (C.A. 10). AMERICAN DREDGING COMPANY 143 collected and not heretofore refunded.7 As recommended by the Trial Examiner, the Board will also order the Respondent to cease and desist from maintaining or enforcing those provisions of the contract here in issue which have been found to violate the Act and to take other affirmative action designed to effectuate the policies of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Amer- ican Dredging Company, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Contributing financial support to Local 825 (Dredgemen's Branch), International Union of Operating Engineers, AFL-CIO, or to any other labor organization, by compensating any of its supervisors to represent the interests of its employees in grievance matters. (b) Delegating its hiring authority to any person who is obligated to employ only members of the above-named labor organization, or of any other labor organization. (c) Recognizing the above-named labor organization, or any suc- cessor thereto, as the representative of any of its employees for the purposes of collective bargaining with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until such labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among the Respondent's employees. (d) Performing, maintaining, enforcing, or giving effect to the contract of October 1, 1955, between the Respondent and the above- named labor organization, or any extension, renewal, modification, or supplement thereof, unless and until such labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among the Respondent's employees. (e) Encouraging membership in the above-named labor organi- zation, or in any other labor organization, by performing, main- taining, enforcing, or giving effect to any contract, agreement, understanding, or arrangement whereby preference in hiring or tenure of employment is accorded members of the above-named labor organization, or of any other labor organization, except as authorized by Section 8(a) (3) of the Act. 9 Broderick Wood Products Company, Supra; News Syndicate Company, Inc., 122 NLRB 818. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) In any other manner interfering with, restraining, or coercing its employees or applicants for employment in the exercise of their rights under Section 7 of the Act, except as permitted by Section 8(a) (3) of the Act. 2. Take the following Affirmative action, which the Board finds will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Local 825 (Dred(yemen's Branch), International Union of Operating Engi- neers, AFL-CIO, as the representative of any of its employees for the purposes of collective bargaining with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until such labor organi- zation shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among the Respond- ent's employees. (b) Reimburse its employees and former employees for moneys illegally exacted from them in the manner and to the extent set forth in "The Remedy" section of this Decision and Order. (c) Post copies of the notice attached hereto, marked "Ap- pendix," s at its main office at Philadelphia, Pennsylvania, and at all its other establishments which service dredging work in the territory described in the contract of October 1, 1955, between it and the above-named labor organization. Copies of the said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that these notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director for the Fourth Region in writing, within 20 days from the date of this Decision and Order, what steps it has taken to comply with the foregoing recommenda- tions. IIn the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, you are notified that : AMERICAN DREDGING COMPANY 145 WE WILL NOT contribute financial support to Local 825 (Dredgemen's Branch) International Union of Operating Engi- neers, AFL-CIO, or to any other union, by paying any of our supervisors to represent the interests of our employees in grievance matters. WE WILL NOT delegate our hiring authority to any person who is obligated to employ only members of the above-named Union, or of any other union. AVE WILL NOT perform, maintain, enforce, or give effect to the contract of October 1, 1955, between us and the above-named Union, or any extension, renewal, modification, or supplement thereof, unless such union demonstrates its majority status in an election conducted by the National Labor Relations Board. `VE WILL NOT encourage membership in the above-named Union, or in any other union, by performing any arrangement under which preference in hiring or tenure of employment is given to members of the above-named Union, or of any other Union, except as authorized by Section 8(a) (3) of the National Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees or applicants for employment in the exercise of their rights under Section 7 of the National Labor Relations Act, except as permitted by. Section 8(a) (3) of that Act. WE WILL withdraw and withhold all recognition from the above-named Union as the representative of any of our em- ployees for the purposes of collective bargaining with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless such union demonstrates its majority status in an election conducted by the National Labor Relations Board. WE WILL refund to all our employees and former employees the initiation fees or periodic dues or other moneys illegally extracted from them which have been paid to Local 825 (Dredgemen's Branch) International Union of Operating Engi- neers, AFL-CIO, the amount of such payment to be in accord- ance with the Board's direction. AMERICAN DREDGING COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 508889-60-vol. 123-11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT . This case involves allegations that American Dredging Company, Philadelphia, Pennsylvania, herein called the Respondent, has at all times since on or about February 28, 1957, maintained a contract with Local 825 (Dredgemen's Branch), International Union of Operating Engineers, AFL-CIO, herein called the Union, under the terms of which the Respondent is required to give financial assistance to the Union and preference in hiring to members of the Union; and that the Respondent discharged Samuel Blair on or about February 28, 1957, and has failed and refused to recall or reinstate him since on or about March 1, 1957, because he engaged in union or other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection. It is alleged that this con- duct violated Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. After the filing of a complaint by the General Counsel,' the Respondent filed an answer admitting certain juris- dictional facts, admitting that it has maintained a collective-bargaining contract with the Union, admitting that it discharged Samuel Blair on or about February 28, 1957, and has not since rehired him, but denying certain jurisdictional facts, and denying that it had engaged in any unfair labor practices.2 A hearing was held before me in Philadelphia, Pennsylvania, on November 25, 1957. All parties were represented and participated fully in the hearing. At the close of the Gen- eral Counsel's case, the Union moved to dismiss the complaint, insofar as it is based upon the maintenance of a contract between the Respondent and the Union. Ruling on this motion was reserved. For reasons set forth below, the motion is denied. After the close of the hearing, the General Counsel, the Respondent, and the Union filed briefs which have been duly considerd. In its brief, the Respond- ent moved to reopen the record to permit it to offer a certain document in evi- dence. By order dated January 21, 1958, the motion was denied and the proffered document rejected. On May 22, 1958, I issued a rule to show cause why the complaint should not be dismissed on the ground that there was insufficient evi- dence of jurisdictional facts. Thereafter the General Counsel and the Respondent submitted a stipulation supplying additional facts relating to the Respondent's operations. On June 10, 1958, I discharged the rule to show cause and received the stipulation in evidence. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT There is no dispute, and it is found, that the Respondent is, and at all ma- terial times has been, engaged in commerce within the meaning of the Act and its operations meet the Board's jurisdictional standards; 3 and the Union is, and at all material times has been, a labor organization within the meaning of the Act.. A. Legality of the contract 1. The contract On October 1, 1955, the Respondent and the Union entered into a collective- bargaining contract effective July 1, 1955, to remain in force until September 30, 1958, and from year to year.thereafter unless either party notifies the other, 60 days before any termination date, of intention to terminate or amend. It covers "all dredging work carried on by the [Respondent] within the territorial zone on the Atlantic Coast from-the Canadian border to the southerly border of the State of Maryland and tributory waters in this zone emptying into the Atlantic Ocean." This agreement has remained in effect at all times since on or about February 28, 1957. Among its provisions are the following: 1 The designation "General Counsel" includes the General Counsel of the National Labor Relations Board and his representative at the hearing. 2 Later an amended complaint was filed by the General Counsel. The Respondent did not file an additional answer to the amended complaint. At the hearing the answer was. amended to change the admission that Samuel Blair was discharged on or about Febru- ary 28, 1957, to an admission that he was laid off at that time. 3 The Respondent is a Pennsylvania corporation, with its principal place of business at Philadelphia, Pennsylvania. It is engaged in dredging operations on inland waterways, including the Port of Philadelphia. It performs dredging operations under contract with the United States Army Engineer Corps directly related to national defense in an amount exceeding $100,000 annually. AMERICAN DREDGING COMPANY 147 4. Effective on any date permitted by law, the Coiripany agrees: (a) It will employ and retain in employment only members of the Union in good standing; it being understood that the Company is free to select for employment any member of the Union. (b) If, within 72 hours exclusive of Sundays and holidays, members of the Union, competent and qualified to perform the work, are not avail- able the Company may then hire any man; any man so hired who within 7 days after his date of employment makes application for mem- bership in the Union shall be accepted into membership without any discrimination whatsoever, subject, however, to the Union's right to pass upon the qualifications defined in the constitution and by-laws of the local union of such applicant for membership in the Union. (c) If, within a period of 7 days, exclusive of date of employment, such person does not apply for membership in the Union, such Em- ployee will be replaced by a Union member as soon as the Union can supply a Union member who is qualified to perform the work. 5. The Union agrees, when requested, to furnish the Company competent and qualified men from its membership upon 72 hours' notice exclusive of Sundays and holidays. The Company agrees to make membership in the Union a condition of employment as permitted by law. 7. The Company shall be the sole judge as to the ability and qualifications for employment, and nothing contained in this Agreement shall in any way abridge the Company's right to discharge an unsatisfactory Employee. 20. Any person who reports for work upon the direction of the Union, pursuant to the request of the Company to the Union to supply an Employee, shall receive one day's pay... . * * * * * * * 24. The Union shall have the right to appoint one Shop Steward among the Employees on each dredge who shall be the first man to be employed and the last man to be laid-off. . . The Company recognizes that the Union has given the Shop Steward authority to adjust, with the Superintendent or other person in charge of the Plant or dredge, differences that arise on the dredge or Plant. Differences that are not settled between the Shop Steward and Superintendent or other person in charge of the Plant, shall be referred by the Shop Steward to the Hiring Engineer and by the Superintendent or other person in charge of the Plant to such person as the Company may designate. 25. The Hiring Engineer is to have authority to discuss with the Company's designee any and all grievances or disputes arising under the provisions of this Agreement which are not settled by the Shop Steward. The Company agrees to request the Hiring Engineer to obtain the personnel in the classi- fications covered by this Agreement and the Union agrees that the Hiring Engineer is to obtain, when requested by the Company, the personnel in the classifications covered by this Agreement. If, however, the Hiring En- gineer does not, within 72 hours exclusive of Sundays and Holidays, obtain competent and qualified personnel as and when wanted by the Company, the Company will hire from any source. The Hiring Engineer shall be agreed to between the Union and the Company and shall receive compensation from the Company at the rate of $150.00 per week. * * * * * * * 27. Any dispute not settled between the Company and the Business Repre- sentative of Local 825-D shall be referred to the Eastern District Representa- tive of the International Union of Operating Engineers, signatory' hereto. Any and all disputes relating to the interpretation of any clause of this Agreement or any alleged violation thereof, shall, by written notice, be referred to arbi- tration. . . . The Company and the Union shall bear the expenses of their respective appointees to the Board and shall equally share the expense of the chairman of the Board. 33. It is mutually agreed that if the adoption of any State or Federal legislation or regulation conflicts with or is contrary to any of the provisions of this Agreement, negotiations will be confined to changes in existing laws or regulations. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties stipulated, and I find, that George Patterson is the hiring engineer referred to in section 25 of the contract, and that he is a member of the Union. 2. The International's constitution The outstanding constitution of the International Union of Operating Engineers, of which the Union is a local, contains, among other things, the following per- tinent provisions: Members of Local Unions shall conform to and abide by the Constitution, Laws, Rules, Obligations and Ritual, and the decisions, rulings, orders, and directions of any authority of the International Union empowered by this Constitution to make them. . Each member shall hire none but those in good standing with a Union having jurisdiction over the work to be done... . No member shall be in good standing unless he shall have affixed to his dues book stamps showing payment for all current dues and receipts for other indebtedness to his Local Union . All fines or assessments legally levied or imposed shall be charged by the Financial Secretary against the member from whom due and must be paid by the member involved to the Financial Secretary within thirty (30) days and before any dues owing by him to the Local Union can be received or accepted by the said Local Union . No by-laws or trade rules may be adopted in contravention of the Constitution, laws, rules, obligations or ritual of the International Union, or the decisions, rulings, orders and directions of any authority of the International Union em- powered by this constitution to make them, or without the approval of the general president. 3. Financial assistance to the Union a. Contentions of the parties as to financial assistance The complaint alleges, and the General Counsel maintains, that the contract described above requires the Respondent to "give financial assistance to the Union, its officers, agents, representatives or employees." The General Counsel bases his contention on the Respondent's agreement, in section 25 of the contract, to pay the hiring engineer compensation. Pointing to the hiring engineer's agreed role in the grievance procedure set forth in sections 24 and 25 of the contract, and his status under section 25 as the individual responsible for "obtaining" personnel for the Company,4 the General Counsel urges that, in view of the fact that he is a union member, "the union agency of the Hiring Engineer is shown on the face of the contract." The General Counsel further contends that the hiring engineer "is not a representative of the Company" because "there is nothing in the contract to spell out his duties other than to obtain [personnel], to do something that the Company could do very well itself. There are no rules or regulations concerning his selection. There is no control." Conversely, the Union contends that the hiring engineer "performs functions for the Company . he obtains personnel on the part of management . he is definitely not the Union's agent in that sense." In support of this position, the Union argues that, in contrast to the provisions of section 24 giving the Union "the unqualified right to appoint the Shop Steward . there is no unqualified right on the part of the Union to appoint the Hiring Engineer. . . . If the Hiring Engineer is to be considered or classified a representative or agent of the Union, the first area upon which one would look to establish that relationship would be the right of the Union to appoint him. And that is completely lacking here." b. Conclusions as to financial assistance There can be no doubt, and it is found, that section 25 of the contract requires ,the Respondent to compensate the hiring engineer. The issue therefore is whether 4 Stressing the fact that under section 7 of the contract the Company is the sole judge ,of the ability and qualifications of its personnel, the General Counsel argues that the hiring engineer's function in regard to personnel "is, in a sense, a mechanical one" since he "merely obtains, but does not hire personnel." I cannot agree. The General Counsel at times spoke of personnel being "hired through a Hiring Engineer" and the hiring engineer being a "hiring agent." Moreover, the purported distinction between "hiring" and ,"obtaining" seems to me to be tenuous. So far as the wording of the contract is concerned, I regard the hiring engineer's function respecting the recruiting of personnel as requiring the exercise of judgment, rather than perfunctory. AMERICAN DREDGING COMPANY 149 such compensation constitutes the contribution of "financial or other support" to "any labor organization" or its agent, within the proscription of Section 8(a)(2) of the Act. Section 25 of the contract contains a commitment that all the Respondent's personnel requests will be made initially to the hiring engineer. Only if he con- not fill the requests within 72 hours may the Respondent hire from another source. Thus the hiring engineer is established as a supervisor within the meaning of Section 2(11) of the Act, and an agent of the Respondent, authorized to hire on its behalf. As such, he is required to perform a valuable service for the Respond- ent.5 The salary which the Respondent agrees to pay the hiring engineer is pro- vided, in part, to compensate him for these services. It may well be that in hiring he acts also as an agent of the Union-a dual agency.6 But this need not be decided. Whatever his agency status, the payment of compensation by the Respondent in exchange for his services rendered to the Respondent is not, in my opinion, the type of illegal financial assistance forbidden by Section 8(a)(2) of the Act. Let us now examine the grievance and arbitration procedure provided for in the contract, and the hiring engineer's part in it. Under section 24, the shop steward is given "authority to adjust . differences that arise" with "the Super- intendent or other person in charge of the Plant or dredge." Obviously the shop steward, an appointee of the Union, represents the employees at this stage; ob- viously, also, the superintendent, a supervisor employed by the Respondent, rep- resents the employer. Unsettled differences are to be referred by the shop steward to the hiring engineer, and by the superintendent or other person in charge of the plant to a designee of the Respondent. Under section 25, the hiring engineer is given "authority to discuss with the Company's designee any and all grievances or disputes arising under the provisions of this Agreement which are not settled by the Shop Steward." At this stage, the hiring engineer, an appointee of the Respondent and the Union jointly, takes over from the shop steward the repre- sentation of the employees and the Respondent's designee succeeds the superin- tendent as the employer's representative. The authority of the hiring engineer is somewhat vague; he may "discuss" the grievance but it is not entirely clear whether this embraces the authority to "adjust" or to "settle." Under section 27,. "any dispute not settled between the [Respondent] and the Business Representative- of Local 825-D" is referred to a representative of the International Union of Operating Engineers, the Union's parent organization. There is here an indica- tion that the Union's business agent attempts to "settle" such disputes with the- Respondent (although his authority to do so is not spelled out) and if he fails to, do so, refers the matter to the International. Finally, "disputes relating to any clause of" the contract are referred to a board of arbitration. The Respondent and the Union bear the expense of their respective appointees to the Board, and jointly share the expense of the board chairman, if a chairman becomes necessary. It thus appears that at each stage of the procedure each of the two parties is represented, and each pays its own representative, except for the hiring engineer. As has been seen, he is a supervisor within the meaning of the Act, is selected jointly by the Respondent and the Union, is paid by the Respondent, and repre- sents the employees at one stage of the grievance procedure. The representation of employees in grievance matters is an important traditional function of the union which is their statutory representative. For an employer to agree that one of its supervisors, selected in part by it, and paid by it, should take the employees' part in a grievance, vis-a-vis another employer representative, is in effect to have the employer sitting on both sides of the bargaining table at the same time.? Under such circumstances, the employees' representative is subjected to conflicting loyalties, and bargaining becomes a mere sham. Section 8(a)(2) was designed 'International Association of Heat and Frost Insulators and Asbestos Workers, AFL- CIO (Rhode Island Covering Company ), 114 NLRB 1526 , 1539; and Nassau and Suffolk Contractors' Association, Inc., et at., 118 NLRB 174, 178. s N.L.R.B. v. Cement Masons Local No. 555, Operative Plasterers and Cement Masons International, AFL, 225 F. 2d 168 (C.A. 9) ; Grove Shepherd Wilson & Kruge, Inc., et at., 109 NLRB 209; A. Cestone Company, 118 NLRB 669, enfd . sub nom . Local 138 , Inter- national Union of Operating Engineers , AFL-CIO, 254 F. 2d 958 (C.A. 2) ; and Booth and Flinn Company, 120 NLRB 545. 7 For example , as will be discussed in more detail hereafter , late in March or early in April 1957 Patterson, the hiring engineer, represented employee Samuel Blair in dis- cussing a grievance with two other representatives of the Respondent. .150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to avoid just such a situation .8 As the Board said in the Nassau and Suffolk Con- tractors' case: 9 we do believe that it is improper for supervisors , even those with pre- dominantly union loyalty, to serve as negotiating representatives of employees; and to the extent that the employer acquiesces in such participation the em- ployer is guilty of unlawful interference with the administration of the Union. . . Employees have the right to be represented in collective-bargain- ing negotiations by individuals who have a single-minded loyalty to their interests . [Emphasis in original.] What the Board there said regarding collective -bargaining negotiations I believe to be equally true of the discussion of grievances. The proviso to Section 8(a) (2) states that "an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay." The Board has held that this exonerates an employer who pays his employees their regular wages for time spent in negotiating with management.io But this does not aid the Respondent here. For the hiring engineer, being a supervisor, is not an employee within the meaning of the proviso to Section 8(a)(2). It is inconceivable that Congress , in enacting the proviso , intended to grant immunity to an employer who, like the Respondent here, agreed to pay a salary to a supervisor who was authorized to represent employees in grievance matters. It is true that this contract was executed more than 6 months before service of the charge upon the Respondent . Accordingly, because of the limitation con- tained in Section 10 (b) of the Act, no unfair labor practice finding may be bottomed upon the contract's execution . However, the parties have continued to enforce the contract and have continued it in effect ." This constitutes "a con- tinuing offense ." 12 The Board has held that the enforcement or continuance in effect of illegal contract clauses within 6 months of the service of the charge constitutes an unfair labor practice . 13 I conclude that, by enforcing , since on or about February 28, 1957,14 a contract with the Union requiring the Respondent to pay compensation to the hiring engineer and clothing the hiring engineer with supervisory authority, while at the same time authorizing the hiring engineer to represent the interests of the employees in grievance matters, the Respondent rendered illegal financial assistance to the Union in violation of Section 8(a)(2) of the Act. Such conduct likewise interfered with, restrained , and coerced the Re- spondent's employees in the exercise of rights granted in Section 7 of the Act, and .thereby also violated Section 8(a)(1) of the Act. 4. Preference in hiring to union members a. The hiring engineer The complaint alleges, and the General Counsel maintains, that the contract described above also requires the Respondent to "give preference in hiring to members of the union ." In this connection , the General Counsel contends that section 25 establishes the hiring engineer as an agent of the Union insofar as his hiring duties are concerned, and since he is a union agent he is bound by the International constitution, quoted above, "to provide none but union personnel" 8 Referring to Section 8(2) of the Wagner Act, the predecessor of Section 8(a) (2) of the present Act, Senator Wagner stated : "Only representatives who are not subservient to the employer with whom they deal can act 'freely in the interest of employees . Simple, commonsense tells us that a man does not possess this freedom when he bargains with those who control his source of livelihood ." 78 Cong. Rec. 3443. 9 Nassau and Suffolk Contractors' Association, Inc., et al., 118 NLRB 174 at 187. 10 Remington Arms Company, Inc., 62 NLRB 611, 614. 11 Thus , the Respondent's answer "admits that [the Respondent ] has complied with" the provisions of section 5 and section 25 of the contract. 12 N.L.R .B. v. Gaynor News Company, Inc., 197 F. 2d 719 , 722 (C.A. 2), affd . 347 U.S. 17; and Bryan Manufacturing Company, 119 NLRB 502. 13 Triboro Carting Corporation, 117 NLRB 775 , 780; M. B. Morgan Painting Contractor, 111 NLRB 395 , 401-402 ; Eichleay Corporation , 110 NLRB 1295 , 1297; and Ebasco Services Incorporated, 107 NLRB 617, 619. 14 The date set forth in the complaint and the amended complaint . The original charge was filed on April 17, 1957 , and the amended charge on August 19, 1957. Thus Febru- ary 28, 1957 , falls within the 6-month statute of limitations set forth in Section 10(b) of the Act. AMERICAN DREDGING COMPANY 151 for the Respondent. In support of this contention the General Counsel points to the Union's voice in the selection of a hiring engineer. He further urges that, as "the Hiring Engineer is a union representative in [the] grievance, procedure, it is submitted that he is by implication also the union representative for the pur- poses of obtaining personnel." Finally, the General Counsel argues that his position is supported by "the complete absence in the contract of any basis . . . to insure an impartial or non-preferential hiring arrangement." The Respondent, conversely, argues that all it is required to do under the contract is to "ask the Hiring Engineer to supply us with men. If he wants to go out and hire [employees who] belong to no union, [or] to some other union [or] to his union, it is no concern of ours.... " The Union contends that the hiring engineer has not been shown to be "an agent of the Union. On the contrary, . he performs func- tions for the [Respondent], . . . he obtains personnel on [behalf] of management." The Board has held that an employer violates the Act by entering into a con- tract with a union under the terms of which the employer surrenders all hiring authority to the union.15 Obviously, the same principle applies to a contract entrusting all hiring to a union agent. Does the contract here in question set up the hiring engineer as the Union's agent for hiring? He is to be chosen jointly by the Respondent and the Union, and paid by the Respondent-but these facts can hardly be said to establish the Union's agency. Moreover, he is, as pointed out above, the Union's agent so far as one step in the grievance process is concerned, but his agency here is strictly circumscribed to grievance matters. Further, no union agency is indicated merely because the contract fails to guar- antee that hiring will be carried out by the hiring engineer in a nondiscriminatory manner. Finally, the language of sections 5 and 20 referring to the Union's "direction" of persons to report for work "pursuant to the request of the [Respond- ent] to the Union" would indicate that the parties anticipate that, on occasion, the hiring engineer will seek the Union's aid in fulfilling his obligation to supply personnel to the Respondent upon request. But it is the expression of no more than an anticipation, and cannot reasonably be construed as a command. In sum, I do not read the contract itself as clearing creating any agency relationship between the Union and the hiring engineer with regard to his hiring functions. In Booth and Flinn Company,16 the contract provided for a hiring agent termed Master Mechanic or Foreman Engineer who was required to be "a member in good standing in Local 825 of the International Union of Operating Engineers." The Board held that this contract provision, when read in conjunction with the International constitution (the same one involved herein), was violative of the Act. The Board there stated (pp. 550-551) : On these facts, therefore, it is evident that master mechanic Behrend, whose employment was required by the terms of the contract adopted by Respond- ents, served in a dual capacity. Behrend was, in the first place, Respondent Company's hiring agent. He was also, because of the obligations placed on him by the terms of International's constitution and Local 825's bylaws, Re- spondent Local 825's agent in the enforcement of both its, and the Interna- tional's, restrictive hiring provisions. Case [cited]. And those restrictive provisions limited Behrend to hiring only those members in good standing of the Union having jurisdiction of the work to be done-which, in this instance was Local 825. Accordingly, in view of the foregoing, and on the basis of the entire record, we find and conclude that Respondent Company violated Section 8(a)(1) and (3) of the Act by unlawfully delegating its hiring authority to an agent, master mechanic Behrend, who was obligated to employ only members in good standing of Respondent Local 825. We further find and conclude that when Respondent Company entrusted its hiring to the master mechanic, who was also Respondent Local 825's agent and who was bound by its bylaws and the International's constitution, the Respondents in effect agreed to oper- ate under an illegal closed-shop hiring arrangement; and that Respondent Company thereby violated Section 8 (a) (1) and (3) of the Act, .. . Thus the Board based its finding that the master mechanic in Booth and Flinn was the union's agent, and the consequent illegality of the contract, partly on the contract's provision that the master mechanic was required to be a member of the union. No such requirement is contained in the contract here in question. ^ 31ounta4n Pacific Chapter of the Associated General Contractors, Inc., et as., 119 NLRB 883. 16 120 NLRB 545. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The reasoning of the Booth and Flinn decision is therefore inapposite here. It is accordingly concluded that the contract of October 1, 1955, between the Respond- ent and the Union herein on its face neither establishes the union agency of the hiring engineer nor illegally delegates hiring authority to the Union. That, however, does not dispose of the issue. The bare contract does not stand alone; there is also the stipulation that Patterson, the hiring engineer, is a mem- ber of the Union, plus the restrictive hiring provisions of the International's con- stitution, quoted above. In Enterprise Industrial Piping Company 17 the Board stated: When the Respondent Employers entrusted their hiring to foremen who were members of the Union and bound by its laws, they in effect agreed with the Union, through the foremen who were agents of Employers and the Union, to operate under a closed-shop arrangement, which is prohibited by the Act. Thereby, the Respondent Employers, as found by the Trial Examiner, violated Section 8(a)(1) and (2) . . . of the Act. Here, as in the Enterprise case, the Respondent surrendered all its hiring powers to the hiring engineer. Here, as in the Enterprise case, the individual thus clothed with hiring authority was in fact a union member subject to the Union's rules and regulations. And here, as in the Enterprise case, the union's rules and regula- tions bound those authorized to hire, to hire only members of the union. Thus all the elements of an illegal closed-shop arrangement are present. In addition, there is the testimony of William Blair, an employee and supervisor of the Re- spondent since 1940 or 1941, and a member of the Union since 1945. On cross- examination by the Respondent's attorney, William Blair testified: Q. Are you familiar with the collective bargaining agreement between the company and the union? A. I believe so. Q. Do you know that all of the employees come through the union hall? A. Yes. Q. You know that? A. Yes, they do. Q. Do you know that when a man reports for work, he shows someone at the American Dredging Company a slip which is signed by someone from the union? A. That is right. This shows that, in actual practice, the hiring engineer invariably turns to the Union as the sole source of personnel. Therefore, a union hiring hall has in fact been set up, without any of the safeguards required by the Board to assure non- discriminatory hiring. Such an agreement or understanding is illegal.18 It is true that under section 25 of the contract if the hiring engineer does not "obtain competent and qualified personnel as and when wanted by the" Respondent within a specified time, the Respondent is free to "hire from any source." But, as the Board has said,19 "if unqualified exclusive delegation of hiring to a union is unlawful, the vice is not cured by a reversion back to the employer of the hiring privilege after the union is unable to enjoy the power conferred upon it." It is accordingly found that, by maintaining and enforcing since on or about February 28, 1957, an arrangement with the union whereby all hiring authority was dele- gated to a member of the Union who was obligated by the International's con- stitution to hire only members of the Union, the Respondent accorded preference in hiring to members of the Union. This conduct interfered with, restrained, and coerced the Respondent's employees and applicants for employment in the exer- cise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. It also rendered illegal support to the Union in contravention of Section 8(a)(2) of the Act. Likewise, by discriminating in regard to hire, it encouraged membership in the Union, conduct proscribed by Section 8(a)(3) of the Act. b. Other union-security provisions Section 4 of the contract sets up a requirement that the Respondent will em- ploy only members of the Union, unless union members "competent and qualified to perform the work are not available" within a specified time. Even if a non- union man is then hired, he must apply for membership within 7 days. This pro- 17 117 NLRB 995, 996. 11 See footnote 15. 19 See footnote 15. AMERICAN DREDGING COMPANY 153 vision exceeds the limited type of union security permitted by the proviso to Sec- tion 8(a)(3) of the Act. However, it is only to become "effective on any date permitted by law." It may perhaps be argued that section 4 is not presently operative but is only to take effect in the future when permitted by law, and therefore does not violate the Act. In the Gil Wyner case,20 the Board found such a contract to be illegal on the basis of other evidence that the parties had actually put a closed shop into effect. The Board there said: Despite the language of the purported deferral provision in the contract, the evidence establishes that the parties never intended to postpone the appli- cation of the union-security provisions to some indeterminate future time. Is there here, as there was in Gil Wyner, evidence produced by the General Coun- sel indicating that the Respondent and the Union "never intended to postpone the application" of section 4 "to some indeterminate future time"? As found above, since on or about February 28, 1957, the parties by mutual agreement have en- trusted all hiring to Patterson, a union member subject to the Union's rules, thereby establishing an illegal closed-shop arrangement. That arrangement, so far as the record shows, is still in effect. Also, the testimony of William Blair, quoted above, demonstrates the existence of an illegal union hiring hall. In my opinion, therefore, the General Counsel has conclusively shown that the parties do not intend to wait until the closed shop is legalized and that the purported postpone- ment has not, in fact, inhibited the parties from enforcing a discriminatory hiring system. Accordingly, it is found that section 4 of the contract, while not invalid on its face, is violative of the Act when considered in the light of the present hiring arrangement. Let us turn next to section 5 of the contract, in which the Respondent agrees "to make membership in the Union a condition of employment as permitted by law." Pointing to the words "as permitted by law," the Respondent urges that this establishes the maximum union security permitted by Section 8(a)(3) of the Act, namely, a 30-day union shop. But even assuming this to be so, part (i) of the first proviso to Section 8(a) (3) of the Act only allows a 30-day union shop where the union involved "has at the time the agreement was made or within the preceding twelve months received from the Board a notice of compliance with section 9(f), (g), and (h)." I am administratively advised that, while the Inter- national has been in compliance with the filing requirements of Section 9(f), (g), and (h) of the Act at all material times, the Union itself (Local 825) was not in compliance on October 1, 1955, when the contract was signed, or at any time within the preceding 12 months; indeed, its initial compliance was not achieved until May 2, 1957. Accordingly, the 30-day union shop set up by section 5 of the contract exceeds the limited union security permitted by Section 8(a)(3) of the Act and is invalid. It is concluded that, by enforcing and maintaining this part of the contract since on or about February 28, 1957, thereby extending an illegal hiring preference to members of the Union, the Respondent violated Section 8(a)(1), (2), and (3) of the Act. c. Superseniority of shop stewards Section 24 of the contract permits the Union to appoint a shop steward from among the employees on each dredge. It further provides that the shop steward "shall be the first man to be employed and the last man to be laid-off." It may well be that such a provision according superseniority to a union agent violates Section 8(a)(1), (2), and (3) of the Act. But is that issue properly before me? The complaint alleges that the contract requires the Respondent "to give financial assistance to the Union, and give preference in hiring to members of the Union." There is no allegation that the contract compels the Respondent to give preference in layoffs to agents of the Union. I therefore construe the complaint as not embracing the granting of superseniority to shop stewards. The matter does not, however, end there. The Board has stated that "when an issue relating to the subject matter of a complaint is fully litigated at a hear- ing, the Trial Examiner and the Board are expected to pass upon it even though it is not specifically alleged to be an unfair labor practice in the complaint." 21 In 20 United Brotherhood of Carpenters and Joiners of America, Local #517, AFL (Gil Wyner Construction Company), 112 NLRB 714, enfd. 230 F. 2d 256 (C.A. 1). "'Monroe Feed Store, 112 NLRB 1336, 1337. I note the apparently contrary holding in N.L.R.B. v. Ill S. Mtg. Co., et al., 210 F. 2d 634, 637 (C.A. 5). However, with all due respect for the United States Court of Appeals for the Fifth Circuit, as a Trial Examiner I am constrained to follow the Board's rule until the Board or the United States Supreme 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD line with that rule, it is found that the superseniority for shop stewards contained in section 24 of the contract is related to the subject matter of the complaint. However, no evidence was produced on his matter, and it was not referred to by any of the parties during the hearing , on oral argument , or in the briefs. It is accordingly found that the matter was not "fully litigated" at the hearing, and no finding with regard to it will therefore be made.22 B. The separation of Samuel Blair 1. Facts regarding Blair's separation a. Blair's complaints Samuel Blair began to work for the Respondent in July 1954 . He was a wiper 23 on a dredge, and a member of the Union . During the last year of his employment he worked under the immediate supervision of William Blair, his brother, a watch engineer employed by the Respondent .24 William Blair never had occasion to complain about Samuel Blair's work, and never received any com- plaint from anyone about Samuel Blair's work. Under the contract, the Respondent was obligated to make meals available to employees engaged in work on board boats at a charge of 50 cents per meal. However, if an employee elected not to eat the food provided by the Respondent, the charge was not to apply. Sometime in 1955, as the crew was coming off the dredge onto the dock, Samuel Blair complained to Charles Saunders , captain of the dredge on which he was then working , that the chicken served on board had been "rotten." Samuel Blair then turned for confirmation to Gilligan, one of the cooks , who was present. Gilligan agreed. Captain Saunders stated that "he would look into" the matter. At a meeting of the Union sometime during the same year, Samuel Blair complained from the floor about the poor quality of the food provided by the Respondent , and asked if the employees "had to pay for food that [they] weren't eating." Richard Owens , an employee of the Respond- ent, and William Blair voiced similar gripes from the floor of the meeting. Stephen Leslie, then the Union 's business agent, replied that those employees who did not eat food supplied by the Respondent were not required to pay for it. After that, Samuel Blair ceased to eat aboard the dredge . Sometime in January or February 1957, money was deducted from Samuel Blair's pay for food, although he had not eaten aboard the dredge. He reported the error to the timekeeper and received a refund on the following week 's pay.25 Employees working on dredges report at the dock , where a crew boat picks them up and transports them to the dredge . At the end of their shifts the reverse is true; a crew boat takes them off the dredge and returns them to the dock. If a crew boat is late arriving at the dredge at the end of a shift , the employees are late getting back to the dock. On at least two occasions sometime between July 1954 and mid-February 1957, the crew boat was late calling for the men on the dredge on which Samuel Blair was working. On both occasions , Samuel Blair complained to the Union's shop steward , and as a result received overtime pay. In mid-February 1957, the crew boat was again late, affecting four men: William Blair, Samuel Blair, Frank Ayres, and Richard Owens . On the following day William Blair told Ed Robinson , the chief engineer of the dredge , that he thought the men were entitled to overtime pay because the crew boat had been late taking them off the dredge the previous day. Robinson replied that they "didn 't have it coming. " William Blair said that he would take the matter up with Carl Jones, the Union's shop steward on the dredge . William Blair and Samuel Blair to- gether then made the same complaint to Jones . Jones responded that, while he did not believe that they were entitled to overtime , he "would look into the mat- Court has held to the contrary . Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768; Novak Logging Company, 119 NLRB 1573 ; and Scherrer and Davisson Logging Company, 119 NLRB 1587. s3 Ford Radio & Mica Corporation, 115 NLRB 1046, 1075. 2s Also referred to in the record as a "water -tender." u William Blair has authority to reprimand, discipline , and discharge the men working under him. It is found that lie is a supervisor within the meaning of Section 2(11) of the Act. w Samuel Blair also testified that similar incidents occurred "a couple times" during his employment , and that on these occasions he ultimately collected . However, his 'testimony with respect to these additional incidents is so nebulous and incomplete that no finding will be based thereon. AMERICAN DREDGING COMPANY 155 ter." Neither William Blair nor Samuel Blair received any overtime pay as a result of this complaint, and the issue does not appear to have been carried any further. Ayres and Owens also complained, and they received overtime pay on this occasion.26 b. The events of February 28, 1957, and thereafter On February 28, 1957, Samuel Blair was working as a wiper in the engineroom of the dredge Philadelphia. His immediate superior was William Blair, watch engineer. The normal engineroom crew 27 of the Philadelphia while operating on water consisted of a chief engineer and 3 watches of 4 men each (a watch en- gineer, a fireman , an oiler, and a wiper)-a total of 13 men. On February 28, 1957, the Philadelphia went into drydock. On the way in her captain, John Hanson, asked the chief engineer, Robinson, whether he would have enough men for watch duty while the Philadelphia was in drydock, because no "outside man" would be working at night. Robinson replied that he had received orders to lay off his crew, "had laid out the work" for the remaining men, and "would take care of" the night watches. Samuel Blair came aboard the Philadelphia that day for the 4 p.m. to midnight watch and found his name on the work list posted in the engineroom to work on valves while the dredge was in drydock. Carpenter, a fireman, told Samuel Blair that he was going to be laid off. Samuel Blair asked Jones, the shop steward, if this was so. Jones replied that Samuel Blair's name had been men- tioned by Vinney Motsel, the Union's business agent, as one of those to be laid off. Samuel Blair then asked Chief Engineer Robinson and Watson, superin- tendent of the dredge, why he was being laid off. Both Robinson and Watson answered that they did not know why Samuel Blair was being laid off. Robinson, in Watson's presence, added that Samuel Blair would be recalled to work when the Philadelphia left drydock. Samuel Blair worked the remainder of the shift. While he was working, Robinson gave him a "layoff slip," 28 told him to "take it up to the yard" the next day, and assured him that "everything would be straight- ened out and we would all be coming back to work." On the next day, March 1,. 1957, Samuel Blair went to the Respondent's office in Camden, New Jersey, and. gave the "layoff slip" to Olson, the Respondent's personnel manager. Olson told Samuel Blair that if he put him back to work "there would be a lot of people- with red faces." Samuel Blair asked for an explanation. Olson responded that. "somebody had made a complaint" about Samuel Blair. About a week later, Samuel Blair again consulted Olson. On this occasion, Olson stated that Captairv Hanson was the person who laid Samuel Blair off.29 Samuel Blair then went to see Captain Hanson, but the record does not reveal the conversation. About a week later, Samuel Blair conferred with Olson for the third time. Olson said: "Well, Blair, I might as well tell you. Nobody else is going to take the blame for this. You was laid off for being an agitator and a trouble-maker." Blair replied: "Well, Mr. Olson if you call sticking up for your rights being an agitator and a trouble-maker, I'm the biggest agitator in the world." During the last week in March or the first week in April 1957, Motzel, the Union's business agent, gave Samuel Blair "a slip to go back to work ... a little white slip." 30 Samuel Blair took the slip to the Respondent's Camden office. Olson was not there. Another man present, not identified on the record, stated that he could not do anything until Olson reurned. Samuel Blair, accompanied by Patterson, the hiring engineer, then went to the Philadelphia, which was apparently still in drydock at that time. They talked to Robinson and Watson, in the presence of Jones. Patterson asked about Samuel Blair's work. Robinson replied that Samuel Blair's work "was satisfactory in every way" and stated that he did not know the reason for Samuel 2e The findings regarding Ayres and Owens are based upon the uncontradicted testimony of Samuel Blair, which is credited. Although this testimony was hearsay, it was intro- duced without objection, and therefore must "be considered and given its natural probative effect." Diaz v. U.S., 223 U.S. 442, 450. 27 Also referred to in the record as the "black gang." 28 The "layoff slip" was not introduced into evidence by any of the parties. ss Captain Hanson testified that he had nothing to do with the layoff of the Philadelphia's engineroom crew, and that normally such a decision would be made by the chief engineer. Captain Hanson was laid off March 5, 1957. 10 Samuel Blair testified that he was sure that the slip was signed by Motsel and that he did not recall whether it was signed by Patterson. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Blair's layoff.31 It does not appear that Samuel Blair and the Respondent com- -municated with one another thereafter. Let us now consider the Philadelphia's stay in drydock. On February 28, 1957, when she arrived in drydock, so far as the engine crew was concerned, eight men, including the chief engineer, were retained and five men were laid off. The laid-off men included Samuel Blair, two oilers who "were supposed to be [going] on vacation," and two other unidentified members of the engineroom crew. William Blair testified that the Philadelphia was in drydock 15 days "more or less," but in view of Samuel Blair's testimony that he visited the dredge during the last week in March or the first week in April, it seems probable that her stay in drydock lasted longer than 15 days. "Right after" the Philadelphia came out of drydock the Respondent replaced Samuel Blair by another wiper, not named in the record, who was assigned to William Blair's watch in the engine- room. Three days later this wiper was replaced by Edward Garrarn, who still works under William Blair in the engineroom of the Philadelphia as a wiper. 2. Conclusions regarding Blair's separation a. The nature of Blair's activities and the Respondent's knowledge thereof As has been detailed above, Samuel Blair voiced a number of complaints about working conditions. These took several forms. As an individual, and in the presence of a fellow employee, he complained to a representative of the Respondent; as a union member and simultaneously with similar action by other union members, he complained from the floor of a union meeting when no representative of the Respondent was present; and he complained to the Union's representative (once in concert with a supervisor). It is possible that Samuel Blair's individual complaint to Captain Saunders in 1955, made in the presence of another employee, Gilligan, might be considered as concerted activity for mutual aid and protection within the meaning of Section 7 of the Act 32 But this issue need not be determined, for the General Counsel does not appear to contend that this 1955 incident played any part in Samuel Blair's discharge. The General Counsel does, however, urge that Samuel Blair's griping to the Union, even individually,33 is protected. The authorities support this position.34 It is accordingly found that Samuel Blair's complaints about the food made in 1955 from the floor of the union meeting, and his three requests to the Union's shop stewards to invoke the Union's assistance in obtaining overtime pay because of the lateness of the crew boat, the last of which occurred in mid-February 1957, constituted conduct within the protection of Section 7 of the Act. To what extent did the Respondent know that Samuel Blair had complained to the Union on these occasions? No representative of the Respondent was present at the 1955 union meeting when Samuel Blair groused about the food, and there is no evidence that the Respondent learned of it. However, the first two com- plaints regarding the lateness of the crew boat resulted in Samuel Blair obtaining redress from the Respondent and therefore must of necessity have been called to the Respondent's attention. On the third occasion, the Blairs' joint complaint in mid-February 1957, Jones promised "to look into the matter" (i.e., apprise the Respondent of the complaint) and thereafter Olson described Samuel Blair as "an agitator and a trouble-maker." It is accordingly found that at all material times the Respondent knew that Samuel Blair had invoked the Union's aid in processing grievances regarding the lateness of the crew boat on three different occasions. 1 The findings with respect to these conversations between Samuel Blair and other persons on and after February 28, 1957, are based upon the uncontradicted testimony of Samuel Blair . Carpenter, Jones, Robinson, Watson, Olson, and Patterson were not called as witnesses by any party. 32 Cf. The Office Towel Supply Company, Incorporated, 97 NLRB 449 , enforcement denied 201 F. 2d 838 (C.A. 2). It is doubtful, however, if the same can be said of Samuel Blair's complaint about an erroneous food charge , made to the timekeeper in January or February 1957, as no other employee appears to have been present. as Although one of the complaints was made by William and Samuel Blair jointly, the former was a supervisor , not an employee within the meaning of Section 2 (3) of the Act. 1' Standard Coil Products Co., Inc. , 110 NLRB 412, 430, enfd. as mod. , 224 F. 2d 465 (C.A. 1), cert. denied 350 U. S. 902. Cf. N.L.R.B. v. Moss Planing Mill Co., 206 F. 2d 557, 559-560 (C.A. 4). AMERICAN DREDGING COMPANY 157 b. Blair's separation on February 28, 1957 The amended complaint alleges, and the General Counsel contends, that Samuel Blair was "discharged" on February 28, 1957. The word "discharge" connotes a finality existing when an employer decides to sever the employment relationship permanently, as opposed to a layoff or temporary suspension of the relationship. The test to determine whether a separation is a discharge rather than a layoff is the employer's intent at the time to recall the employee in the future 35 If the intent to recall at some later date is present, the separation is merely a layoff. Applying that test to the instant case, it is significant that on February 28, 1957, Robinson assured Samuel Blair that he would be recalled to work when the Philadelphia left drydock, and that Samuel Blair described the ,paper he received from the Respondent as a "layoff slip" rather than a "discharge notice." It is accordingly concluded that on February 28, 1957, the Respondent intended merely to lay off Samuel Blair while the Philadelphia was in drydock, but not to discharge him permanently. Let us now turn to the reason for the layoff. At the time, the Philadelphia had just reached drydock. Captain Hanson testified that "it is general procedure, when you go into drydock, to lay off men that you don't have any work, special work, for," and that Robinson told him that he had received orders to lay off the engineroom crew. Indeed, four other members of the engineroom crew were laid off with Samuel Blair. Moreover, the Philadelphia's engineroom crew re- mained at less than 13 men while the dredge was in drydock, and Samuel Blair was not replaced until after she left drydock. These facts indicate, and I find, that the layoff was brought about solely by the Philadelphia's arrival in drydock. Has the General Counsel shown that Samuel Blair's selection for layoff was discriminatorily motivated? The only evidence that the Respondent had such intent on February 28, 1957, is Olson's statement 2 weeks later that Samuel Blair "was laid off for being an agitator and a trouble-maker." But this remark cannot be related back to show the Respondent's animus against Samuel Blair on February 28, 1957.36 I am convinced, and find, that the General Counsel has failed to prove that the Respondent was discriminatorily motivated when it laid off Samuel Blair on February 28, 1957. c. The failure to recall Blair What has been said above does not dispose of the allegations of the complaint regarding Samuel Blair. The amended complaint alleges not only that Samuel Blair was discriminatorily separated from the Respondent's employ on February 28, 1957, but also that he has been discriminatorily denied reinstatement at all times since on or about March 1, 1957. It is clear, and it is found, that during Samuel Blair's more than 21/2 years' employment, the Respondent never had any cause to criticize his work. It is likewise clear, and it is found, that Samuel Blair was permanently replaced as a member of the Philadelphia's engineroom crew shortly after she left drydock. This was tantamount to a discharge. The only reason offered Samuel Blair for this action was that he had been "an agitator and a trouble-maker." It is reasonable to assume that the agitation and troublemaking of which Samuel Blair was accused referred to his persistent requests in the past that the Union process grievances on his behalf when the crew boat was late, which requests came to the attention of the Respondent. It is accordingly found that the General Counsel established a prima facie case that the Respondent's failure to recall Samuel Blair to work when the Philadelphia left drydock, and its conduct in permanently replacing him at that time, was discriminatorily motivated. The Respondent neither produced any witnesses at the hearing, nor furnished any explanation in its brief, for its refusal to recall Samuel Blair to work. It was content to argue simply that there might have been other reasons for its action. But the establishment of a prima facie case by the General Counsel shifted to the Respondent the burden of going forward with its defense. In other words, if the Respondent did have some other explanation for its conduct, or proof that its failure to recall Samuel Blair was for cause, it was given an opportunity to so demonstrate. As it failed to take advantage of this opportunity to rebut the General Counsel's case, the conclusion is inescapable that no explanation existed. as T. A. McGahey, Sr., et at., d/b/a Columbus Marble Works, 111 NLRB 1162, 1173, 1176, enfd , in part 233 P. 2d 406 (C.A. 5). 31 Leiter Manufacturing Company, 112 NLRB 843 , 851, footnote 21. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is accordingly found that the Respondent failed and refused to recall Samuel Blair to work as a member of the Philadelphia's engineroom crew when she left drydock because of his persistent efforts to obtain the Union's help in processing grievances. As such use of the grievance procedure was protected activity, the discrimination against Samuel Blair because of his use of it necessarily tended to inhibit other employees from using the grievance process, and constituted conduct violative of Section 8 (a) (1) and (3) of the Act. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Local 825 (Dredgemen's Branch), International Union of Operating Engineers, AFL-CIO, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 2. By rendering financial support to the above-named labor organization, and by carrying out exclusive hiring arrangements or practices requiring membership in the above-named labor organization as a condition of employment, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Samuel Blair, and by maintaining in effect an unlawful union-security agreement, thereby encouraging membership in the above-named labor organization, 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 such conduct, thereby interfering with, restraining, and coercing its employees and applicants for employment in the exercise of rights guaranteed in .Section 7 of the Act, the Respondent has engaged in and is engaging in unfair :labor practices within the meaning of Section 8(a)(1) of the Act. 5. The above-described unfair labor practices tend to lead to labor disputes ":burdening and obstructing commerce and the free flow of commerce and .constitute unfair labor practices affecting commerce within the meaning of Section '2(6) and (7) of the Act. Upon the basis of the above findings of fact and conclusions of law and upon .the entire record in this case, I make the following: THE REMEDY It has been found that the Respondent contributed illegal financial assistance to the Union by compensating one of its supervisors to represent the interests of the employees in grievance matters. It has also been found that the Respondent delegated all its hiring authority to a person obligated to employ only members of the Union, thereby rendering further illegal support to the Union. It will accordingly be recommended that the Respondent cease and desist from such conduct. It will further be recommended that the Respondent cease and desist from performing or giving effect to its contract of October 1, 1955, with the Union, or to any modification, extension, supplement or renewal thereof, and from recognizing the Union, or any successor thereto, as the bargaining representa- tive of any of its employees, unless and until the Union demonstrates its majority status in a Board-conducted election.37 Nothing herein shall, however, be deemed to require the Respondent to modify, vary, abandon, or depart from any substantive provisions of such contract. It has also been found that the Respondent enforced and continued in effect the union-security provisions of its contract of October 1, 1955, with the Union, in such a manner as to accord preference in hiring and tenure of employment to members of the Union. In particular, the Respondent agreed to the appoint- ment of a hiring engineer who was obligated to hire only members of the Union; failed to postpone the effect of the illegal closed-shop provisions of the contract; and granted the Union a union-security clause although the Union was not in compliance with the filing requirements of the Act at the time the contract was signed or at any time within the preceding 12 months. It will accordingly be recommended that the Respondent cease and desist from performing, main- taining, enforcing, or giving effect to any contract, agreement, understanding, or arrangement which gives preference in hiring or tenure of employment to mem- bers of the Union, or of any other labor organization, except as permitted by Section 8(a)(3) of the Act. 37 Bowman Transportation, Inc., 120 NLRB 1147. PAGE AIRCRAFT MAINTENANCE, INC. 159 It has further been found that the Respondent discriminatorily failed and refused to recall Samuel Blair to work because he sought to enlist the Union's aid in processing grievances, an activity protected by Section 7 of the Act. It will therefore be recommended that the Respondent cease and desist from discriminating against or visiting reprisals upon any of its employees because they engage in protected concerted activities. Because of the underlying purpose and tendency of this unlawful conduct, it is concluded that there exists danger that the Respondent will in the future commit other unfair labor practices. Accordingly, it will be recommended that the Respondent cease and desist, not only from the unfair labor practices found, but also from in any other manner infringing upon the rights guaranteed in Section 7 of the Act. Affirmatively, it will be recommended that the Respondent withdraw and with- hold all recognition from the Union as the representative of any of its employees for the purposes of collective bargaining, unless and until the Union demonstrates its majority status in a Board-conducted election. It will further be recommended that the Respondent offer to Samuel Blair immediate reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered because of the discrimination against him, by paying to him a sum of money equal to the amount he normally would have earned from the date of the discrimination against him to the date of the offer of reinstatement, less his net earnings during the said period. The back pay provided for herein shall be computed on a quarterly basis in the manner established by the Board; earnings in one particular quarter shall have no effect on the back-pay liability for any other period 38 It will be further recommended that the Respondent make available to the Board or its agents, upon request, all records necessary to compute the amount of back pay due under the terms of this recommended order. Finally, it will be recommended that the Respondent post the usual notices at its main office and also at all its other establishments which service dredging work in the territory described in the contract of October 1, 1955, between it and the Union, namely, "on the Atlantic Coast from the Canadian border to the southerly border of the State of Maryland and tributory waters in this zone emptying into the Atlantic Ocean." [Recommendations omitted from publication.] 38 F. W. Woolworth Co., 90 NLRB 289. Page Aircraft Maintenance, Inc. and Lodge 889, International Association of Machinists, AFL-CIO Page Aircraft Maintenance , Inc. and Lodge 889, International Association of Machinists, AFL-CIO. Cases Nos. 16-CA-1016 and 16-CA-1071. March 12, 1959 CONSOLIDATED DECISION AND ORDER On April 30, 1958, Trial Examiner A. Norman Somers issued his Intermediate Report in Case No. 16-CA-1016, finding that the Respondent (herein called Page) had engaged in and was engaging in certain unfair labor practices, and recommending that Page cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, Page filed exceptions to the Intermediate Report, and a supporting brief. 123 NLRB No. 23.