Great Lakes Dredge & Dock Co.

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