Associated Divers and Contractors, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 319 (N.L.R.B. 1969)

ASSOCIATED DIVERS AND CONTRACTORS, INC.
Associated Divers and Contractors, Inc. and
Piledrivers, Barge , Wharf, Dock Builders and
Divers Local No. 2520, Jack Johnson , and David
Reynolds. Case 19-CA-4186, 19-CA-4186-2, and
19-CA-4217
December 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On June 30, 1969, Trial Examiner Maurice
Alexandre issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and Respondent
filed exceptions to the Decision and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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 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 the case , and hereby adopts the
findings ,' conclusions, and recommendations of the
Trial Examiner with the following modification:
The Trial Examiner found, and we agree , that the
Respondent violated Section 8(a)(1) and (3) of the
Act by barring Reynolds from further employment
because of his vigorous pursuit of his claim and his
enlistment of the Union' s aid in connection
therewith, and by refusing to give further
employment to Johnson because of his protected
activity as a job steward in preparing a list of
unsatisfactory conditions on the barge which he
turned over to the Union 's business agent for
discussion with the Respondent.' We also adopt the
Trial Examiner's finding that the Respondent
violated Section 8(a)(l) by threatening to withhold
'We find it unnecessary to pass on Respondent 's exception to the
admission of certain testimony as hearsay, for the Trial Examiner did not
rely on such testimony and we agree with the Trial Examiner that there
was ample other evidence to support his finding. However , we find
Johnson 's testimony relating to his foreman 's statements concerning his
employment status admissible despite the fact that the foreman did not
have the authority to hire and fire . Drico Industrial Corporation. 115
NLRB 931.
'The Respondent excepts to the Trial Examiner' s credibility findings. It
is the Board ' s established policy , however , not to overrule a Trial
Examiner 's resolutions with respect to credibility unless, as is not the case
here , the preponderance of all the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products , Inc., 91 NLRB
544, enfd. 188 F.2d 362 (C.A. 3).
319
Reynolds' retroactive pay. However the Trial
Examiner viewed the evidence as insufficient to
establish that the Respondent withheld money from
Reynolds' retroactive pay for discriminatory
reasons . We disagree with this conclusions.4
The evidence establishes that Respondent's
resolution of Reynolds' grievance covering the pay
due on the YNG-18 job was not unrelated to its
discriminatory motive in the conduct found unlawful
above. Thus it appears that when, during a
discussion of that grievance, Reynolds and Union
Agent Bethke told the Respondent's President Caley
that employees were entitled to retroactive pay
under the newly negotiated contract, Caley told
Reynolds that Respondent would not give him the
retroactive pay because he was causing "too much
trouble," but Respondent would give such pay to the
other employees. This unlawful threat was carried
out. By subsequent letter dated September 7, ruling
on Reynolds' grievance, Caley advised Reynolds
that his wage complaint had resulted in a careful
payroll audit of his earnings for the season.
Respondent emphasized that in auditing his pay
records it had utilized a contract interpretation
suggested by Reynolds in the grievance rather than
that normally used for all employees. Respondent
then proceeded to deduct from the retroactive pay
contractually due Reynolds an amount assertedly
representing an overpayment of wages based on this
different method of calculation. In these
circumstances we find that the application of a
different contract interpretation to Reynolds was
itself discriminatory, and a violation of Section
8(a)(3) and (1) of the Act. Accordingly, to remedy
this discrimination Respondent must, under our
order, make Reynolds whole for any loss suffered
because of the use of a different auditing method.
ADDITIONAL CONCLUSIONS OF LAW
1. Substitute the following as paragraph
numbered 2 of the Conclusions of Law and
renumber paragraphs 2 and 3 accordingly:
"By withholding pay from Reynolds in reprisal
for his protected activity, Respondent violated
Section 8(a)(3) and (1) of the Act."
2. Delete paragraph 4.
'See Price Bros. Co ., 175 NLRB No. 47, H.E. Wiese. Inc.. 169 NLRB
No. 145. We note, however , that the remedy would be the same whether
the violation is of Section 8(axl), 8(aX3 ), or both
Contrary to the Trial Examiner 's view , we need not determine that in
fact Reynolds was not overpaid on the YNG- 18 job in order to find
Respondent's conduct discriminatory . That question is properly considered
at the compliance stage wherein a calculation of the pay involved in the
grievance , made on the same basis as that used to compensate other
employees on the YNG-18 job, will be a part of the specifications
determining the amount of any loss of earnings suffered by reason of the
discrimination against Reynolds in accordance with our order herem.
180 NLRB No. 62
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Associated Divers and Contractors,
Inc., Anchorage, Alaska, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as so modified:
1. Delete paragraph 1,A,1, of the Recommended
Order and substitute therefor the following:
"Discouraging employees from engaging in
activity having for its purpose the submission,
presentation and processing of grievances pursuant
to the terms of a collective-bargaining agreement by
barring from further employment David W.
Reynolds, Jack V. Johnson, or any other employee,
and by withholding pay due David W. Reynolds or
any other employee or otherwise discriminating in
regard to their hire, tenure of employment, or any
term or condition of employment."
2. Substitute a comma for the period at the end
of paragraph I, A, 3, and add the following:
" .. except to the extent that such rights may be
affected by an agreement requiring membership in a
labor organization as a condition of employment as
authorized in Section 8(a)(3) of the Act."
3. Delete the first WE WILL NOT paragraph of the
Appendix and substitute the following:
WE WILL NOT discourage employees from
engaging in activity having for its purpose the
submission, presentation, and processing of
grievances pursuant to the terms of a
collective-bargaining agreement by barring from
further employment David Reynolds, Jack V.
Johnson, or any other employee or job applicant,
or by withholding pay due David W. Reynolds, or
any other employee, or otherwise discriminate
against him in any other manner in regard to any
term or condition of employment, because he
engages in activities protected by the Act.
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE, Trial Examiner: This case was
heard in Anchorage, Alaska, on April 15, 1969, upon a
consolidated complaint issued on March 6, 1969,' alleging
that Respondent had violated Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended, by
discriminating against David W. Reynolds and Jack V.
Johnson. In its answer, Respondent denied the
commission of the alleged unfair labor practices.
Upon the entire record, my observation of the
witnesses, and the brief filed by the General Counsel," I
make the following:
'Based upon charges and an amended charge filed on November 5, 1968,
December 10, 1968, January 30, 1969 , and February 14, 1969.
'Respondent 's untimely request for an extension of time for filing a brief
was denied.
FINDINGS AND CONCLUSIONS'
THE UNFAIR LABOR PRACTICES
Respondent is an Alaska corporation with its principal
office and place of business in Anchorage, where it is
engaged in general contracting, operation of a retail store,
and barge and diving operations. In July 1968,'
Respondent chartered a barge known as the YNG 18
from one Gifford for use in sandbagging a pipeline in
Cook Inlet. At that time and at all times material herein,
Respondent was bound by a collective-bargaining
agreement entered into between the Union and an
employers' association, Alaska Chapter of the Associated
General Contractors of America, Inc. (hereafter called
AGC). On August 6, Reynolds was informed by
Respondent that he was no longer eligible for employment
and he has not been employed by the latter since that
date. Johnson was not employed by Respondent on
August 12 as scheduled, and has not been employed by
Respondent since that date. The circumstances relating to
the two employees are set out below.
A. David W. Reynolds
1. The evidence
Reynolds, the president of the Union, had worked for
Respondent as a diver tender on a number of occasions in
1967 and 1968. On July 23, he was assigned to duty on
the YNG 18, which returned to Anchorage on July 29. On
August 2, Reynolds went to Respondent's office and
requested his paycheck for that trip. When the
bookkeeper, Betty L. Sheffield, tendered it to him, he
stated that the check was incorrect because it failed to
include additional pay which he felt was due him for
overtime duty on the YNG 18. When he then asked to see
Caley, Respondent's vice president and general manager,
Sheffield informed him that Caley was busy. According to
Sheffield's credited testimony, Reynolds became angry,
threw the check on her desk, stated in a loud tone, "Son
of a bitch, I haven't got a right damn check in this office
yet," and left. Sheffield further testified that Reynolds did
not direct his profanity at her nor did he argue with her,'
and that other employees have used identical profanity,
abusive language , and loud tones in her office. Caley was
talking on the telephone during the above episode. By the
time he completed the call and entered Sheffield's office,
Reynolds was gone . Caley asked Sheffield what had
happened; she replied, "Well, you heard it"; and Caley
said, "Yes, I did." Caley's testimony shows that he heard
at least part of the conversation.
On the following day, August 3, Reynolds returned to
the office, asked to see Caley, but was again told that he
was busy. Reynolds thereupon obtained permission to use
the telephone, called Union Business Agent Bethke, and
arranged for the latter to join him when he returned to see
Caley the following week. On August 6, Reynolds and
Bethke went to Respondent's office, but were told by
'No issue of commerce is presented . The complaint alleged and the
answer admitted facts which , I find , establish that the Respondent is an
employer engaged in commerce within the meaning of the Act Respondent
also admits, and I find , that Piledrivers , Barge , Wharf, Dock Builders and
Divers Local No. 2520 (hereafter called the Union) is a labor organization
within the meaning of the Act
•A11 dates referred to hereafter relate to 1968 unless otherwise indicated
' I do not credit Reynolds' equivocal denial that he used profanity.
ASSOCIATED DIVERS AND CONTRACTORS, INC.
Sheffield that Caley would be busy all day and could not
see them. Reynolds told Sheffield to put Caley on notice
that Reynolds wanted 8 hours of waiting time until his
check was corrected. Reynolds and Bethke then left.
On the same day, August 6, Caley received a letter,
bearing that date and signed by Bethke, pointing out that
Reynolds was entitled to waiting time pay. By letter dated
the same day, Caley informed Bethke that Reynolds was
not entitled to any additional pay. By a separate letter
also dated August 6 and handcarried to the Union's
office, Caley advised Reynolds as follows:
This is to advise you that we are terminating your
employment with this company effective July 29, 1968.
Reason for this termination is: End of job. Mr.
Reynolds is not eligible for rehire with this company.
That night, Reynolds went to the Union Hall and was
given Caley's letter.
About 2 or 3 weeks later, Reynolds and Bethke met
with Caley and one Schwab, manager of AGC, in order to
seek resolution of the issues concerning Reynolds' claim
for additional pay. In addition, the question of Reynolds'
ineligibility for further employment by Respondent was
raised, but neither question was resolved at the meeting. A
third issue raised was Reynolds' claim for retroactive pay,
provided for in a new collective-bargaining agreement, for
services he had performed for Respondent prior to his
employment on the YNG 18. Reynolds testified that when
the issue was raised , Caley stated that Respondent would
not pay him the retroactive pay because he was causing
"too much trouble," but that he would give such pay to
other employees.
By letter dated September 7 and addressed to
Reynolds, Caley stated that as a result of the latter's
complaint about unpaid wages, a careful payroll audit had
been made; that this showed that he had in fact been
overpaid in the net amount of $224.18; that the deduction
of this amount from the net retroactive pay of $243.46
due him left an unpaid balance of $19.28; and that a
check for that amount was enclosed.'
Reynolds has been refused employment by Respondent
since August 6. Caley testified on direct examination that
the discharge of Reynolds on August 6 was motivated by
his conduct in Sheffield's office on August 2; that it was
unrelated to the dispute regarding pay due him; and that
Caley did not learn about the pay problem until he
received Bethke's letter of August 6. On
cross-examination, he gave evasive testimony as to
whether he had referred to Reynolds and Johnson as
"agitators" and "troublemakers" during an interview by
counsel for the General Counsel.
2. Concluding Findings
I find , in agreement with the General Counsel, that
Respondent has refused to employ Reynolds since August
6 for discriminatory reasons. Although Reynolds had
raised his voice and used profanity in Respondent 's office
on August 2, 1 reject Caley's testimony that such conduct
motivated the discharge . For one thing , I am not
persuaded that the general manager of an employer
engaged in diving and barge operations in Alaskan waters
'The parties stipulated at the opening of the hearing that Reynolds was
informed by Respondent on December 7 that his retroactive wages were
being withheld. I am somewhat uncertain as to whether this was a
reiteration of the contents of the September 7 letter, or whether the
transcript erroneously refers to December instead of September.
321
would be so fastidious that he would not tolerate such
conduct from a diver tender.' Indeed, other employees had
engaged in such conduct; yet there is nothing to show that
they were discharged by Respondent.
Moreover, Caley's letter of August 6, which in effect
blacklisted Reynolds, made no mention of any
misconduct. So far as appears, the first time that
Respondent referred to misconduct as the reason for
Reynolds' discharge was at the hearing, a fact which
suggests that the misconduct was an afterthought. This
conclusion is reinforced by the timing of Caley's letter
barring Reynolds from further employment. Reynolds'
misconduct occurred on August 2 but Caley did not send
his letter until August 6, i.e., after the visit to
Respondent's office by Reynolds and Union Agent Bethke
on August 3, and on the same day that Caley received
Bethke's letter of August 6 supporting Reynolds' claim for
additional pay. Caley did not explain why he delayed
sending the letter, an omission which is of particular
significance in view of his testimony that he would have
fired Reynolds on August 2 if the latter had still been
present when Caley completed his telephone call and
entered Sheffield's office. I do not credit Caley's
testimony that he did not learn of Reynolds' claim for
additional pay until he received Bethke's letter of August
6. 1 am convinced that Caley learned about the claim on
August 2 either because he heard the entire conversation
between Reynolds and Sheffield, or, if heard only part,
because it is reasonable to infer that she filled in whatever
details were missing. I also find it reasonable to infer that
Sheffield informed Caley of the attempt by Reynolds and
Bethke to see him on August 3 regarding the former's
claim.
Finally, I note that Caley was evasive about whether he
had referred to Reynolds and Johnson as troublemakers
and agitators, and I credit Reynolds' uncontradicted
testimony that he was told by Caley that he would not
receive his retroactive pay because he had caused too
much trouble. There is no evidence that Reynolds caused
Respondent any trouble other than that relating to his
claim for additional pay.
Absent a persuasive reason for barring Reynolds from
further employment since August 6, all the considerations
referred to above lead me to conclude, and I find, that
Respondent's action was motivated by Reynolds' vigorous
pursuit of his claim and by the fact that he enlisted the
Union's aid in connection therewith. Since such conduct
by Reynolds constituted protected activity, Respondent's
reprisal therefore amounted to unlawful discrimination
violative of Section 8(a)(3) and (1) of the Act.
I further find that Caley's threat to withhold Reynolds'
retroactive pay violated Section 8(a)(1). However, I reject
the General Counsel's contention that such pay was in fact
withheld for discriminatory reasons. As recognized in the
General Counsel's brief, there is a dispute as to how much
pay Reynolds earned for duty on the YNG 18.
Respondent asserted that he was overpaid and deducted
the overpayment from the retroactive pay due him.
Although the validity of that assertion may be open to
suspicion, the record before me does not warrant a
determination that Reynolds was not overpaid. Without
such a determination, there is an insufficient basis for a
finding of discriminatory withholding of overtime pay.
'That employees do not always employ language used in polite society is
one of the facts of industrial life Longview Furniture Co , 100 NLRB 301,
304, enfd . as modified 206 F.2d 274 (C.A. 4); Meyer & Welch , Inc, 96
NLRB 236, 256.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Jack V. Johnson
1. The evidence
Johnson had worked for Respondent in December 1966,
from April to November 1967, in January 1968, in
February, and from April to August. On July 23, he was
assigned to duty on board the YNG 18, where he served
as temporary foreman until the return of the regular
foreman , and then served as a rigger . Because of
dissatisfaction with unsafe and unsanitary conditions on
board, the crew held a meeting while the YNG 16 was
sailing back to port on July 29, at which time they voted
not to man the barge until the conditions were rectified,
and elected Johnson job steward with instructions to
notify the barge captain, Brown, about their complaints.
Brown instructed Johnson to prepare a list of the
complaints for purposes of transmittal to Respondent.
Johnson prepared such a list , gave the original to Brown,
and shortly after the return of the barge to Anchorage,
gave a copy to Union Business Agent Bethke. The latter
called Respondent to state that the conditions complained
of had to be corrected, and he then delivered the list of
complaints to the Alaska Department of Labor. On
August 2, a representative of that department inspected
the barge and prepared a safety inspection report listing a
number of violations and corrections to be made and the
required compliance dates.
Thereafter, Johnson worked on the YNG 18, which was
engaged in a dockside job, from August 3 to 8, when the
crew was laid off because of a shortage of piling. At that
time , Superintendent Bingham and Crew Foreman Peed
informed Johnson and the balance of the crew that they
would be rehired on the following Monday, August 12. On
August 10, during a conversation concerning a personal
matter, Johnson asked Peed whether work would be
resumed on Monday. Johnson testified that Peed replied
that Johnson would not be rehired, had been blacklisted
by Vice President Caley, and was no longer eligible for
rehire because of the "hell" he had raised on the YNG 18
while he was job steward; that Peed advised him to see
Caley or Captain Brown to ascertain whether something
could be worked out; that he went to see Caley on August
12 to inquire whether he could return to work and if not,
the reason therefor; that Caley informed him that he
would not be returned to work because "several people,"
including Gifford who owned the YNG 18, were unhappy
about his list of complaints and had accused him of being
a troublemaker and of complaining about conditions
aboard the YNG 18; that if he did not like the equipment
or did not like working for Respondent, there were two
other diving companies that he could work for; that
"they" were planning to meet about "this" and would let
Johnson know; that when Johnson returned the next day,
Caley informed him that no decision had been reached;
and that he has never been recalled to work by
Respondent since that time.
Caley testified that the conversation took place before
Johnson was taken on for the August 3 job; that he told
Johnson that he was not on a blacklist , that he was
looking into some complaints, and that if they were
accurate, he would "bring other employees ahead of
[Johnson] out of the Hall"; that Caley had talked to
Gifford who stated that he had been threatened by
Johnson; that he instructed Captain Brown "to find out if
there had been a lot of grumbling going on out on the
barge regarding the barge which is under no circumstances
a part of the union steward's job"; that Brown agreed
with him and stated that they "probably could get better
people out of the hall"; and that "this was the basis for
my determination that we would take other people ahead
of Mr. Johnson from now on when he went to work."
Caley further testified that under the collective-bargaining
agreement, Respondent has the right to reject any job
applicant; that it has followed the practice of requesting
the Union to send the "good" employees that have
worked for it in the past; that "complainers or the
grumblers and such, we naturally slide to the bottom of
the list. We spend a lot of money each year to get the
work and I don't need this type"; that in referring to
complaints and grumbling , he meant, inter alia.
"complaining about our equipment"; that Respondent had
not blacklisted Johnson and that the latter's list of
complaints had nothing to do with Respondent's giving
preference to other applicants over Johnson; and that
Respondent had in fact rehired Johnson for a subsequent
dock job when other applicants were not available.
According to Caley and to Captain Brown, Respondent
continued to hire employees after August 12.
In September, Johnson asked Captain Brown whether
he would be rehired on the YNG 18, which had been
brought into compliance with the requirements of the
Department of Labor and was then being rigged for a
short driving job. Johnson testified that Brown replied in
the negative, but added that he might be rehired in the
spring if he "kept [his] nose clean." Admitting that he had
made the quoted statement to Johnson, Brown testified
that it did not relate to Johnson's "competency in his
job"; that Johnson had told him about the troubles he had
with Caley; and that Brown told him to "forget about it
and keep your nose clean" and that he would go back to
work the next spring . He further testified that it was his
policy to give preference to "better" men; but that if there
were no better men in the Union Hall, he would be glad
to rehire Johnson.
2. Concluding findings
The General Counsel contends that Respondent has
unlawfully refused to give employment to Johnson since
August 12 because of his protected activity as a job
steward. At the hearing, counsel for Respondent asserted
that it failed to rehire Johnson, not for discriminatory
reasons, but solely because he was considered less capable
than others who were hired. I agree with the General
Counsel.
There is not a shred of credible evidence in the record
showing that Johnson was less competent than other
employees. If anything, the record shows the contrary for,
according to Johnson's uncontradicted testimony, his work
had never been criticized and Respondent had appointed
him temporary foreman when he reported for duty aboard
the YNG 18 on July 23. Respondent's case is not aided by
Caley's testimony that the basis for his decision to pass
over Johnson was Captain Brown's statement that they
probably could obtain "better people" from the Union
hall. Since he further testified that Brown made the
statement when he instructed Brown to ascertain whether
there were many objections about conditions on the barge
and expressed the view that this was not part of the union
steward's job, I find that taken in context, Brown's
"better people" remark referred to employees who did not
complain about equipment.
Similarly, Respondent cannot derive any comfort from
Caley's testimony that he had received complaints about
Johnson and had told him that priority would be given to
ASSOCIATED DIVERS AND CONTRACTORS, INC.
other employees if investigation showed that the
complaints were accurate. On the contrary, such
testimony militates against Respondent. For one thing, the
complaints did not involve Johnson's competence and
were thus unrelated to Caley's professed reason for
refusing work to Johnson. In addition, Caley admitted
that he did not desire employees who raised objections
about equipment, and that he had exercised the
contractual right to reject them in favor of others. In view
of his further admissions, already referred to, that he felt
that objections to equipment were not the function of a
job steward, and that he had instructed Brown to ascertain
whether there were many objections about conditions on
the YNG 18, 1 find that in referring to complaints against
Johnson, Caley was talking about complaints regarding
the list of unsatisfactory conditions on board the YNG 18
which Johnson had prepared, and which had resulted in an
inspection of the YNG 18 and the unfavorable report by
the Alaska Department of Labor.
I further find that the conversation between Johnson
and Caley took place on August 12. It is uncontradicted
that Johnson was advised by Foreman Peed on August 10
to see Caley concerning his ineligibility for further work.
Moreover, in a letter dated November 19 to the Board's
Regional Office, Caley stated that during a discussion
with Johnson, he had informed the latter that he had not
been recalled because of his attitude toward Respondent.
Obviously, the conversation must have taken place after
the recall of Johnson for the August 3 job. There is thus
no basis for Caley's assertion that he had given Johnson
employment after their conversation.
I accordingly credit Johnson's version of his
conversation with Caley, i.e. that the latter told him,
among other things, that he would not receive further
employment because of his list of objections about
conditions on the barge and Gifford's displeasure with the
list. This conclusion is fortified by Brown's subsequent
statement to Johnson that he would be rehired in the
spring if he kept his " nose clean ." Admittedly, that
remark did not relate to Johnson's competency, but rather
constituted an admonition to avoid further trouble with
Caley if he wished to be rehired. So far as the record
shows, Johnson's only trouble with Caley consisted of his
activity as a job steward in connection with the list of
unsatisfactory conditions on the barge.
For the above reasons, I find that Respondent denied
further employment to Johnson from and after August 12
because of his activity as job steward. Since such activity
was protected, I find that Respondent's refusal of
employment amounted to unlawful discrimination
violative of Section 8(a)(3) and (I) of the Act.
CONCLUSIONS OF LAW
1. By unlawfully refusing further employment to
Reynolds from and after August 6 , and to Johnson from
and after August 12 , Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
2. By threatening to withhold retroactive pay owing to
Johnson in reprisal for his protected activity , Respondent
engaged in an unfair labor practice within the meaning of
the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
4. Respondent did not violate the Act by any conduct
not found herein to constitute an unfair labor practice.
THE REMEDY
323
I recommend that Respondent cease and desist from its
unfair labor practices, and that it take certain affirmative
action designed to effectuate the policies of the Act. More
specifically, I recommend that Respondent offer Reynolds
and Johnson employment in available jobs on the same
nondiscriminatory basis as that enjoyed by them prior to
Respondent's discrimination against them, without
prejudice to their seniority or other rights and privileges. I
further recommend that Respondent make Reynolds and
Johnson whole for any loss of earnings each 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
discriminatorily denied employment to the date
Respondent offers him employment as aforesaid, less his
net earnings during the said period.' The loss of earnings
shall be computed in the manner set forth in F. W.
Woolworth Company. 90 NLRB 289, and Isis Plumbing
& Heating Co.. 138 NLRB 716
RECOMMENDED ORDER
I. Respondent, its officers, agents, successors, and
assigns, shall:
A. Cease and desist from:
1. Unlawfully refusing to hire David W. Reynolds, Jack
V. Johnson or any other employee, or otherwise
discriminating in regard to their hire, tenure of
employment, or any term or condition of employment.
2. Unlawfully threatening any employee with reprisals
for engaging in protected activity.
3. In any other manner interfering with, coercing, or
restraining employees in the exercise of any of the rights
guaranteed in Section 7 of the Act.
B. Take the following affirmative action
1. Offer to Reynolds and Johnson employment in
available jobs on the same nondiscriminatory basis as that
enjoyed by them prior to the discrimination against them,
without prejudice to their seniority or ,other rights and
privileges, and make each whole for any loss of earnings
he may have suffered by reason of such discrimination, in
the manner set forth in the section herein entitled "The
Remedy."
2. Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
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.
3. Preserve and make available to the Board or its
agents, on request, for examination and copying, all
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 of employment under the terms of this
Recommended Order.
4. Post at its place of business in Anchorage, Alaska,
copies of the attached notice marked "Appendix."9 Copies
'The record contains insufficient facts to permit a determination whether
it is appropriate to adopt the definition of the term "net earnings" set
forth in Great Lakes Dredge & Dock Co.. 169 NLRB No. 90 , TXD, fn.
19
'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
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of said notice, on forms provided by the Regional'
Director for Region 19, shall, after being duly signed by
an authorized representative of the Respondent, 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 where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
5. Notify the Regional Director for Region 19, in
writing, within 20 days from the date of the receipt of this
Decision, what steps have been taken to comply
herewith.10
II. It is recommended that the complaint be dismissed
insofar as it alleges unfair labor practices not found
herein.
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
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order -
"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 19, in writing, within 10 days from the date of this Order what
steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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
employees that:
WE WILL NOT deny employment to David W.
Reynolds, Jack V. Johnson, or any other employee or
job applicant, or otherwise discriminate against him in
any other manner in regard to any term or condition of
employment, because he engages in activities protected
by the Act.
WE WILL NOT unlawfully threaten our employees or
in any other manner interfere with them in the exercise
of their guaranteed statutory rights.
WE WILL offer David W. Reynolds and Jack V.
Johnson employment in available jobs on the same
nondiscriminatory basis as that enjoyed by them prior
to our discrimination against them, without prejudice to
their seniority or other rights.
WE WILL also reimburse David W. Reynolds and
Jack V. Johnson for any earnings lost by them by
reason of our discrimination against them.
ASSOCIATED DIVERS AND
CONTRACTORS, INC.
(Employer)
Dated By
(Representative) (Title)
Note. WE WILL notify David W. Reynolds and Jack V.
Johnson if presently serving in the Armed Forces of the
United States of their 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, Republic
Building, 10th Floor, 1511 Third Avenue, Seattle,
Washington 98101, Telephone 583-7473.