Tracy Towing Line, Inc.

TRACY TOWING LINE, INC. Tracy Towing Line, Inc. and John Obermeier, United Marine Division, Local 333 National Maritime Union, AFL-CIO (Tracy Towing Line, Inc.) and John Obermeier. Cases 2-CA-11093 and 2-CB-4438 June 28, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 3, 1967, Trial Examiner Wellington A. Gillis issued his Decision in the above-entitled proceedings, finding that the Respondents had en- gaged in and were engaging in the unfair labor prac- tices alleged in the complaint and recommending that they cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Re- spondents 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 this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and, for the reasons set forth below, finds that no prejudicial error was committed. The rulings, except as herein modified, are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's ex- ceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following comments and modifications. In its answer to the complaint, the Respondent Employer pleaded as a second affirmative defense that employee Obermeier was unsuitable for reem- ployment because he had made an allegedly false accusation that the Respondent Employer had been allowed to eliminate certain jobs through a corrupt agreement between the Respondent Employer and the president of Respondent Union. At the hearing, the General Counsel moved that this affirmative defense be stricken on the ground of irrelevancy. After extensive argument by all parties, the Trial Examiner struck the defense and prohibited the in- troduction of any evidence with respect to this defense. Thereupon, the Respondent Employer made an offer of proof and offered into evidence a document consisting of the transcript of a hearing by a committee of the Respondent Union upon which the Respondent Employer relies to support its second affirmative defense. The Trial Examiner rejected the offer of proof and refused to admit the ' See In. 5 of the Trial Examiner's Decision for a full recital of the Respondent Employer's second affirmative defense. 2 See John F Cuneo Company, 152 NLRB 929. 166 NLRB No. 9 81 proffered exhibit into evidence. The Trial Examiner also denied a similar offer of proof made by the Respondent Union. The Respondent Employer excepts to these rulings by the Trial Examiner and contends that: "By striking the second affirmative defense, and by excluding evidence and cross-examination per- tinent to that defense, the Examiner had to decide the issue on the basis of the truth of the facts pleaded in- that defense, namely, that (1) the libel against Tracy is false; (2) the libel was uttered by Obermeier either with actual knowledge of its falsi- ty for ulterior reasons; or (3) in view of his admis- sion under oath that he had no evidence to support the charge, that it was published recklessly." A perusal of the Employer's second affirmative defense does not bear out the Employer's conten- tion as listed in (2) and (3) above. The "facts pleaded" in the second affirmative defense t are that Obermeier's utterances were false, constituted defamatory charge of criminal conduct, and, as Obermeier refuses to disavow the charges, the Em- ployer is unwilling to reinstate him. It is well established that suitability for rehire is a proper subject of inquiry in a case where a viola- tion of Section 8(a)(3) is found, because it is materi- al to the question of the appropriateness of the usual remedy of reinstatement with backpay.2 We find, accordingly, that it was error for the Trial Examiner to strike the Respondent Employer's second affir- mative defense alleging that Obermeier was un- suitable for reemployment. We shall, therefore, ac- cept Respondent Employer's proffered evidence as part of the record in this proceeding and assume its correctness and validity for the purposes of this decision.3 Since we are at this stage considering the Respondent's defense and the evidence Respondent proffered to support it, we find that the Trial Examiner's error in striking this defense was not prejudicial. Further, we conclude on the basis of all the evidence, including the evidence con- tained in Respondent's offer of proof, that Obermei- er is entitled to reinstatement with backpay. Obermeier's statements to which the Respondent Employer takes exception were made in the heat of discussion at an internal union meeting and in the course of discussion of union affairs. Obermeier's charge, made directly to the Union's president, was that on an earlier occasion the conduct of the Union's president had been such as to indicate that, in Obermeier's words, he "was working for the boat owners." Obermeier did not state, as Respondent Employer contends, that the "boat-owners" had bribed or paid off the Union's president. Nor did he specify or name any officer or other representative of Respondent Employer as having engaged in im- proper conduct. At the union committee hearing, 3 The Respondent Employer's request for oral argument is denied because in our opinion the record , exceptions, and briefs adequately set forth the issues and positions of the parties. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Obermeier, in substance, disavowed an intent to imply criminal conduct of the kind imputed to his statements by spokesmen for the committee. And we find nothing in the transcript of the union com- mittee hearing to indicate that Obermeier's ut- terances, even though they may have been inaccu- rate, were deliberately or maliciously false.4 Since the statements of Obermeier were made at a union meeting, were pertinent to a debate involv- ing internal union affairs, and, as we have found, were not deliberately or maliciously false, it is clear beyond doubt that Obermeier was engaged in con- certed, protected activity when he made such state- ments. If the Employer had discharged Obermeier for making such statements, it would have com- mitted a violation of the Act.5 Therefore, since such statements would not constitute a valid basis for discharge, a fortiori, they do not warrant denial of the usual remedy of reinstatement and backpay granted to an employee who, like Obermeier, has been unlawfully discharged. Accordingly, in all the circumstances of this case, we find that the policies of the Act will best be ef- fectuated by ordering Obermeier's reinstatement with backpay in accord with the Trial Examiner's recommendation. ORDER 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 orders that the Respondent, Tracy Towing Line, Inc., New York, its officers, agents, successors, and assigns, and Respondent United Marine Divi- sion, Local 333, National Maritime Union, AFL-CIO, New York, New York, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. 4 Walls Manufacturing Company, Inc., 137 NLRB 1317; Marlin Firearms Company, 116 NLRB 1834; VermontAmerican Furniture Cor- poration, 82 NLRB 408. 5 Walls Manufacturing Company, Inc., supra. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Trial Examiner: Upon separate charges filed on September 16, 1966, as separately amended on November 14, 1966, by John Obermeier, an individual, the General Counsel of the Na- tional Labor Relations Board, hereinafter referred to as the Board, issued a consolidated complaint on November 23, 1966, against Tracy Towing Line, Inc., hereinafter referred to as the Respondent Company or Tracy, and United Marine Division, Local 333 National Maritime Union, AFL-CIO, hereinafter referred to as the Re- I As hereinafter discussed, during the early stages of the hearing, I granted the General Counsel's motion to strike the Respondent Com- spondent Union or Local 333, alleging violations of Sec- tion 8(a)(3) and (1) and 8(b)(1)(A) and (2), respectively, and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), hereinafter referred to as the Act. The Respondent Company and the Respondent Union thereafter filed timely answers to the complaint denying the commission of any unfair labor practices. Pursuant to notice, a hearing was subsequently held on December 19 and 22, 1966, at New York, New York, before me, at which all parties were represented by coun- sel and were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, to introduce evidence pertinent to the issues,' and to engage in oral ar- gument. Briefs were subsequently filed by the General Counsel and by counsel for the Charging Party and for the Respondent Company. Upon the entire record in this case and from my obser- vation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT COMPANY Tracy Towing Line, Inc., maintaining an office and place of business at New York, New York, is engaged in providing marine towing services and related services. During the year immediately preceding the issuance of complaint,-the Company performed services valued in ex- cess of $50,000, of which amount, services valued in ex- cess of $50,000 were performed for various enterprises, including the Public Service Electric and Gas Company of New Jersey, each of which meets the standards of the Board for the assertion of jurisdiction. The parties admit, and I find, that the Respondent Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE RESPONDENT LABOR ORGANIZATION The parties admit, and I find, that United Marine Divi- sion, Local 333 National Maritime Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The sole issue to be resolved is whether the charging individual, John Obermeier, who, until his discharge on September 8, 1966, was employed as a first engineer aboard one of the Respondent Company's tugboats, is a supervisor within the meaning of the Act. B. The Facts For 22 years John Obermeier worked aboard tugboats, the last 19 as a marine engineer, and the last 9 as a first assistant engineer for the Respondent Company. During these 22 years, Obermeier was a member of the Respond- ent Union. For an undisclosed number of years the Union and the Company have been parties to a collective-bargaining contract covering engineers and other employees of the Company and containing a union- security clause requiring membership in the Union as a condition of employment with the Company. pany's second affirmative defense and thereafter refused to receive evidence pertaining thereto. TRACY TOWING LINE, INC. 83 By letter dated September 8, 1966,2 the Company was notified by the Union that Obermeier had been suspended from union membership for a period of 6 months and deprived of his union privilege for a period of 1 year, and demanded that the Company relieve Obermeier of his duties immediately. Pursuant to the Union's request, Obermeier was discharged on this date, and at no time since has received an unconditional offer of reinstatement from the Company or been notified by the Union that it has advised the Company that it no longer has any objection to his employment. Based upon the assertions of counsel for both Re- spondents, separately and collectively, it appears that Obermeier was suspended from the Union for having charged at a union membership meeting the collusion several years earlier between a union officer and a com- pany official in allowing the Company to eliminate certain jobs on its tugs, and after Obermeier, who had been given a hearing before union officials on the matter, refused to withdraw his charges or disavow them publicly. Early in this hearing, both Respondents admitted that the Union's request and thus the Company's discharge were based upon factors other than Obermeier's failure to tender dues or initiation fees, and both conceded that such is a technical violation of the Act.3 While it is difficult to un- derstand the Union's defense to the 8(b)(1)(A) and (2) charges,4 unless it is bottomed on the proposition that these asserted circumstances warrant an exception being made to the "dues and the initiation fees" limitation of Section 8(b)(2), the Respondent Company, in its second affirmative defense set forth in its answer and argued at length by counsel at the start of the hearing, took the posi- tion that, notwithstanding an improper discharge, because of the nature of Obermeier's conduct and his continued refusal to disavow his remarks publicly, it would not ef- fectuate the purposes of the Act to order Obermeier's reinstatement.5 After extensive argument by counsel for all parties, and in part because I was of the opinion that even assuming the truth of the facts asserted by the Respondent Company there existed no valid basis for denying the discriminatee's reinstatement, I granted the General Counsel's motion to strike the Respondent Com- pany's second affirmative defense and denied the latter's offer of proof pertaining thereto. In view of my ruling in this regard, only the Respond- ent Company's first affirmative defense, on which the Respondent Union also relied, remained to be litigated, to wit, that Obermeier, a first assistant engineer, is a su- pervisor within the meaning of the Act and, by reason thereof, is not an employee entitled to the protection of the Act. In this regard, the record reveals that Tracy owns and operates seven tugboats in and around the New York City waterfront. As is common with many tugboat operations, Tracy's boats are staffed with a deck crew and a engineroom crew, the former consisting of the cap- tain, a mate, four deckhands, and a cook. The engineroom crew aboard Tracy's tugs, with the exception of the Walter Tracy, hereinafter alluded to, is made up of the chief engineer, a first assistant engineer, a second assistant engineer, and an oiler. There is no interrelation- ship in any way between the deck department, which is responsible for the steering, docking, and undocking operations of the tug, and the engineeroom department, the jurisdiction of which is limited to the confines of the engineroom where it is responsible for the operation and maintenance, including preventative maintenance, of the room, powerplants, and all allied equipment such as en- gines, compressors, pumps, electric motors, etc. The four enginefoom personnel operate on rotating shifts, each on 7 days, off 3 days, on 7 days, and off 4 days, during which, on a 24-hour day, the three engineers alternate standing 6-hour watches, 6 hours on and 6 hours off. Functionally there appears to be little or no difference among the three classes of engineers, each of whom is responsible for the proper operation of the engine, includ- ing its pressures, lubrication, and coolness. The chief en- gineer, who performs a small amount of paper work not required of the others, also receives a higher pay than the first and second assistant engineers, who receive identical compensation. The oiler is responsible primarily for keep- ing the engineroom clean, the floors scrubbed, the paint- work washed, the brass shined, and the engine wiped. It is clear that, barring the infrequent engine breakdown, there is little mechanical or manual work required of the engineers, each of whom is licensed and skilled in his profession. Similarly, it would appear that, in the course of his regular workday, and excepting the unusual break- down when he would assist the engineers, the oiler, who is well acquainted with his duties and responsibilities, requires no direction. Whenever the chief engineer is off the boat, which is one-third of the time, the first assistant engineer assumes the position of acting chief, and is paid accordingly. Although the chief engineer is the senior engineer when- ever he is aboard, the engineer on watch, whoever he might be, is in charge of the engineroom while on watch and has the authority, inter alia, when he deems it neces- sary, to break out of watch any other engineroom person- 2 All dates herein refer to the year 1966. 3 While counsel for the Respondent Company stated that Obermeier's remarks, contained in a transcript of the union hearing, were not made known to the Company until shortly after Obermeier's discharge, he ad- mitted that at the time of the Union's demand the Company was aware of the fact that it was based upon considerations other than the failure to tender dues or fees , and that it was accompanied by a statement that "if we didn't [discharge Obermeierl , why, the boat won't work," to which economic pressure the Company yielded. 4 This section provides in pertinent part that: (b) It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7 . . (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) or to discriminate against an employee with respect to whom membership in such or- ganization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership ... . 5 The Respondent Company's second affirmative defense read as fol- lows: Shortly after the employment of the charging party, Obermeier, was terminated by Tracy, Tracy was given a copy of a transcript at a hearing before representatives of the Union , said transcript having been taken by a qualified reporter and a reading of said transcript revealed the following facts Obermeier charged that Respondent Tracy had been allowed by the Union to eliminate certain jobs by reason of an assertedly corrupt agreement between Captain Joseph O'Hare, an executive of the Union, and a representative or representatives of the Tracy Com- pany. The acts imputed to the Tracy management by Obermeier, if true, would constitute a serious Federal crime. Obermeier, in response to questions of the aforesaid hearing before the union representatives admitted that he had no evidence to support such ac- cusations Such allegations by Obermeier are and were false in all respects. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD net then aboard, including the chief, and, additionally, has the responsibility to certify the fact on the record for overtime purposes.6 Because of the fact that the first assistant engineer aboard Tracy's tugboats spends one-half of his working time (one-third of his total time) in the capacity of acting chief engineer with the chief's authority during such period, considerable testimony was elicited from both Obermeier, the first assistant engineer aboard the Helen Tracy, and from the Respondent Company's witness, Charles Hagen, the chief engineer aboard the same boat, particularly with reference to the oiler. Such testimony, practically none of which is conflicting, reveals that oilers, and presumably engineers as well, are hired at the shoreside office, and, like engineers, are scheduled by the dispatcher or personnel manager. With respect to the chief engineer's authority over the oiler, it is established that no job description setting forth duties, responsibili- ties, and authority was ever issued by the Company. Hagen testified without contradiction, however, that (a) when he was hired by the Company 23 years ago as chief engineer he was told that he was responsible for the en- gineroom and the personnel in it,7 (b) on one occasion during his 23 years, Hagen discharged an oiler, which ac- tion was not challenged by the Company, (c) on one other occasion during his tenure with the Company, Hagen recommended that an oiler with whom he had previously worked be rehired by the Company, which recommenda- tion was favorably acted on, (d) in case of needed assistance in an engineroom breakdown or other out-of- the-ordinary repair, the chief or any engineer in charge at the time has the authority to direct the oiler as to how the job is to be done, to the extent that direction is necessary, and (e) once or twice he had been asked whether an oiler was competent, and had prepared a report with respect thereto.8 Hagen further testified, however, apparently with the exception of this one instance, he never per- sonally asked the Company to hire an oiler, and that he knew of no instance in the 23 years when an oiler was referred for hire by others in the engine department. Notwithstanding_ the existence or lack of existence of supervisory indicia with respect to the chief engineer over the oiler, there exists one big distinguishing factor between the chief engineer and the first assistant engineer when the latter is acting as chief. The record is clear that today, and for the past 3 or 4 years, the practice is that the chief engineer and the oiler always are on and off 8 To break out of watch encompasses the calling to work of one who is on the boat but off duty. 7 At that time, and for the next 7 or 8 years, the tugs were steam rather than diesel, and were staffed with three engineers, three firemen, and one oiler. 8 The accuracy of this, however, is challenged by Hagen's testimony on cross-examination where he testified that he did not exactly remember the Company ever asking for a report on a particular person. 9 As briefly alluded to above, the one exception to the general tugboat operation of Tracy is the boat, the Walter Tracy. In this regard, the uncon- tradicted testimony of Obermeier reveals that for a number of years he has worked primarily aboard the tug the Helen Tracy, but there had been oc- casions when he filled in aboard the Walter Tracy. Unlike the other boats, the Walter Tracy is engaged in transporting coal barges around pier 18, and on this boat there is a day watch and a night watch. An engineer works with an oiler on the day watch, and another engineer works alone on the night watch Obermeier credibly testified that, except for two periods in 1965 when he substituted for 1 week as the oiler aboard the Walter Tracy and subsequently worked 4 weeks as the night engineer, he had not worked on the Walter Tracy for 3 or 4 years Accordingly, I find without merit the argument set forth in the brief of the Respondent Com- pany pertaining to Obermeier's service aboard the Walter Tracy together, that the oiler always works only with the chief engineer, and never works with the first assistant en- gineer. When the chief is off the boat, the oiler is off the boat. In addition to Hagen's substantiation of this fact, Obermeier testified that it had been several years since he worked with an oiler,9 and that at no time had he ever discharged or disciplined an oiler or recommended such action. Hagen corroborated Obermeier in this regard, tes- tifying that he knew of no instance in his 23 years when a first assistant engineer discharged or disciplined an oiler. Hagen further testified that under the system operating today, a first assistant engineer, whether acting as chief engineer or not, never needs the assistance of an oiler. Thus, whether or not the chief engineer on Tracy's boats can be said to have the authority responsibly to direct the work of the oiler, as asserted by both Respondents, the fact remains that a first assistant engineer, even when act- ing as the chief, does not have such authority, for he has no oiler working with him. 10 In support of their mutual position that Obermeier is a supervisor within the meaning of Section 2(11) of the Act,11 the Respondents argue that, in line with the Board's Mississippi Valley Barge case,12 regardless of whether he exercised authority over the oiler, Obermeier has the right to do so and that is all that is required for a supervisory finding. A close perusal of that decision, however, discloses that the whole impact of the Board's rationale in finding supervisory status is keyed to the rela- tionship existing between the engineers and the strikers (oilers) and the fact that each engineer "has a single striker working for him." In the instant case, first assistant engineers, including Obermeier, do not work with oilers and accordingly have no employees to super- vise.13 On the record as a whole, I find that John Obermeier does not possess any of the indicia of supervisory authori- ty set forth in Section 2(11) of the Act, and that, ac- cordingly, he is an employee entitled to the full protection of the Act.14 I find therefore that the Respondent Com- pany, in discriminatorily discharging Obermeier on Sep- tember 8, 1966, and in refusing thereafter to offer him un- conditional reinstatement, violated Section 8(a)(3) and (1) of the Act, and further find that the Respondent Union, in unlawfully causing the Respondent Company to discharge Obermeier, violated Section 8(b)(1)(A) and (2) of the Act. 19 This.fact alone renders moot a number of hypothetical questions put to, and answered by, Hagen with respect to that period when a first assistant engineer is acting as a chief. Nor is there substance to the Respondent's assertion that, at times, first assistant engineers are in a position to supervise other employees when the tug is in for shipyard repairs. The record shows that such repairs are performed by employees of Cadell's Drydock Co. under their own super- vision, and that, during such times, the Respondent's chief engineer is also present. " Section 2(11) provides that: (11) The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, re- call, promote, discharge, assign, reward, or discipline other em- ployees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgement. Mississippi Valley Barge Line Co., 151 N LRB 676. Graham Transportation Company, 124 NLRB 960. " Capital Transit Company, 114 NLRB 617 TRACY TOWING LINE, INC. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Company and the Respondent Union set forth in section III, above, occur- ring in connection with the operations of the Respondent Company described in section I, above, have a close, inti mate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that Tracy Towing Line, Inc., and United Marine Division, Local 333 National Maritime Union, AFL-CIO , have engaged in certain unfair labor practices , it is recommended that each cease and desist therefrom and take certain affirmative action which is necessary to effectuate the policies of the Act. It having been found that Tracy Towing Line, Inc., on September 8, 1966, at the request of Local 333, dis- criminatorily discharged John Obermeier , it is recom- mended that Tracy offer him immediate and full reinstate- ment to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges. It is further recommended that Tracy , jointly and severally with Local 333, make John Obermeier whole for any loss of earnings he may have suffered as a result of the discrimination against him , by making pay- ment to him of a sum of money equal to the amount he would have earned from the date of the discrimination to the date of the offer of reinstatement , less net earnings during said period, to be computed on a quarterly basis in the manner established by the Board in F . W. Woolworth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 percent per annum to be com- puted in the manner set forth by the Board in Isis Plumb- ing & Heating Co., 138 NLRB 716.15 It is also recommended that Local 333 notify Tracy and John Obermeier, in writing, that it has no objection to the employment of Obermeier aboard Tracy's tugboats or elsewhere and that , Local 333's liability for further ac- crual of backpay shall cease 5 days after the giving of such notification. It is further recommended that Tracy post appropriate notices at its office , including all places where notices to employees are customarily posted, and that Local 333 post appropriate notices at its business of- fice and at any other usual membership meeting places. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Tracy Towing Line, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Marine Division, Local 333 National Maritime Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging John Obermeier because of his non- membership in the Union, the Respondent Company en- gaged in unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act. 15 See Reserve Supply Company v. N.L.R.B., 317 F.2d 785 (C.A. 2). 16 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 85 4. By attempting to cause and by causing the Respond- ent _ Company_ to discriminate against John Obermeier because of his nonmembership in the Union , the Re- spondent Union engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that: A. Tracy Towing Line, Inc., its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Encouraging membership in United-Marine Divi- sion, Local 333 National Maritime Union, AFL-CIO, by discriminating against John Obermeier or any employee for nonmembership in that organization, except as authorized in Section 8(a)(3) of the Act, as amended. (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 will ef- fectuate the policies of the Act: (a) Offer to John Obermeier immediate and full rein- statement to his former or substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges. (b) Notify the above-named employee 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 Training and Service Act, as amended, after discharge from the Armed Forces. (c) Jointly and severally with Local 333 make John Obermeier whole for any loss of earnings he may have suffered as a result of the discrimination against him in the manner set forth in the section entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to compute the amount of backpay due under the terms of this Recommended Order. (e) Post at its New York office and place of business copies of the attached notices marked "Appendix A" and "Appendix B."ts Copies of said notices, to be furnished by the Regional Director for Region 2, upon being respectively signed by representatives of Respondents, shall be posted by Tracy immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Tracy to insure that said notices are not altered, defaced, or covered by any other material. (f) Mail to the Regional Director for Region 2 signed copies of the attached notice marked "Appendix A," for 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." 308-926 0-70-7 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posting by Local 333. Copies of the notice, to be furnished by the Regional Director, shall, after being signed by a representative of the Respondent Company, be returned forthwith to the Regional Director for post- ing. (g) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of receipt of this Deci- sion, what steps the Respondent Company has taken to comply herewith.17 B. United Marine Division, Local 333 National Maritime Union, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Tracy Towing Line, Inc., or any other employer to discriminate against John Obermeier or any employee in violation of Section 8(a)(3) of the Act, except to the extent permitted by Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Jointly and severally with Respondent Company, make John Obermeier whole for any loss of earnings he may have suffered as a result of the discrimination against him, in the manner set forth in the section entitled "The Remedy." (b) Notify the Respondent Company, in writing, that it has no objection to the employment of John Obermeier aboard its tugboats or anywhere else, and send a copy of the aforesaid notice to John Obermeier. (c) Post at its business office and usual membership meeting places copies of the attached notices marked "Appendix A" and "Appendix B."111 Copies of said notices, to be furnished by the Regional Director for Re- gion 2, after being respectively signed by representatives of the Respondents, shall be posted by Local 333 im- mediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members are usually posted. Reasonable steps shall be taken by Local 333 to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for Region 2 signed copies of the attached notice marked "Appendix B," for posting by the Respondent Company. Copies of said notice, to be furnished by the Regional Director, after being signed by a representative of the Respondent Local 333, shall be returned forthwith to the Regional Director for posting. (e) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of receipt of this Deci- sion, what steps the Respondent Union has taken to comply herewith. 19 19 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." 1e See fn. 16, supra. 's See faa. 17, supra. APPENDIX A 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 our em- ployees that: WE WILL NOT encourage membership in United Marine Division, Local 333 National Maritime Union, AFL-CIO, by discharging or otherwise dis- criminating against John Obermeier, or any other employee, for nonmembership in that organization, except as permitted under Section 8(a)(3) of the Na- tional Labor Relations Act, as amended. WE WILL NOT in any like or related manner inter- fere with, restrain , or coerce employees in the exer- cise of rights guaranteed them in Section 7 of the Na- tional Labor Relations Act. WE WILL offer to John Obermeier immediate rein- statement to his former or substantially equivalent position , without prejudice to his seniority or other` rights and privileges. WE WILL, jointly and severally with Local 333, make John Obermeier whole for any loss of earnings he may have suffered as a result of the discrimination against him. All of our employees are free to become or remain, or refrain from becoming or remaining , members of United Marine Division, Local 333 National Maritime Union, AFL-CIO , or any labor organization , except to the ex- tent that this right may be affected by an agreement ex- ecuted in conformity with Section 8(a)(3) of the National Labor Relations Act. TRACY TOWING LINE, INC. (Employer) Dated By (Representative) (Title) Note: We will notify the above-named employee 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 Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York 10022, Telephone 751-5500, Extension 852. APPENDIX B NOTICE TO ALL MEMBERS OF UNITED MARINE DIVI- SION, LOCAL 333 NATIONAL MARITIME UNION, AFL-CIO, AND TO ALL EMPLOYEES OF TRACY TOWING LINE, INC. Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in TRACY TOWING LINE, INC. 87 order to effectuate the policies of the National Labor Relations Act, as amended, w° hereby notify you that: WE WILL NOT cause or attempt to cause Tracy Towing Line, Inc., to discharge or otherwise dis- criminate against John Obermeier or any other em- ployee in violation of Section 8(a)(3) of the National Labor Relations Act, except to the extent permitted under Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed them in Section 7 of the National Labor Relations Act. WE WILL, jointly and severally with the Respond- ent Company, make John Obermeier whole for any loss of earnings he may have suffered as a result of the discrimination against him. WE WILL notify Tracy Towing Line, Inc., and John Obermeier that we have no objection to the em- ployment of Obermeier aboard the Respondent's tugboats or anywhere else. UNITED MARINE DIVISION, LOCAL 333 NATIONAL MARITIME UNION, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York 10022, Telephone 751-5500, Extension 852.