American Dredging Co., 139 (1958)

[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-CA1554. 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), International 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 Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, 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.

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 contention 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 midFebruary 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-February 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 overtime 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 overtime 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).

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 Supervisor 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 insistence that the Union process his grievances concerning the lateness of the crew boat. However, we do not thing that either these facts or the record as a whole supports the Trial Examiner's inference 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 Respondent'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 communicated 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 compensated, 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.

trouble-maker' related to his protected concerted activity in requesting the Union to process his grievances, and the Trial Examiner's inference to the contrary is pure conjecture. Accordingly, we conclude 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 complaint, 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 compensatingone 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 inevitably coercing the...