Great Lakes Dredge and Dock Co.

National Labor Relations Board - Board Decisions

Aug 13, 1979

244 N.L.R.B. 164 (N.L.R.B. 1979)

DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
Great Lakes Dredge and Dock Company and United
Marine Division, ILA, AFL-CIO, Local 333. Case
29 CA 5128
August 13, 1979
SUPPLEMENTAL DECISION AND ORDER
BY MEMIBE RS JENKINS, MURPHY, AND TRUESDAI.I
On April 25, 1979, Administrative Law Judge Peter
E. Donnelly issued the attached Supplemental Deci-
sion in this proceeding.' Thereafter, the Charging
Party and the General Counsel filed exceptions and
supporting briefs, and Respondent filed an answering
brief.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the excep-
tions and briefs and has decided to affirm the rulings,
findings.2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
SUPPLEMENTAL DECISION
SIAIiMENI OF 1111 CASI
PEIER E. DONN.IY. Administrative Law Judge: On
January 23, 1978, 1 issued a Decision in the above-cap-
tioned case dismissing the complaint, concluding that the
complaint was fatally defective having been issued against
the wrong employer, i.e., Great Lakes Dredge and Dock
Company (herein called Employer. Respondent. or GLD).
whereas the proper Respondent was the joint venture
rThe Board's original Decision and Order reported at 240 NLRB 197
(1978).
2 The Charging Part) and the General Counsel have excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judge's resolutions
with respect to credibility unless the clear preponderance of all of the rel-
evant evidence convinces us that the resolutions are incorrect. Standard Dr
Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d ir. 1951).
We have carefully examined the record and find no basis for reversing his
findings.
(herein called GLABVO') since the joint venture as a sepa-
rate and legal entity hired the employees to man the vessels
to he used in the joint venture project. and was therefore
responsible for the unfair labor practice alleged to have oc-
curred in the course of such hiring. However, by Decision
dated January 25. 1978,2 the Board reversed this Decision
concluding. inter alia. that "Respondent is responsible as a
principal for any authorized acts committed by any mem-
ber of the joint venture and as an agent for any acts com-
mitted by it on behalf of the joint venture." The Board
further found that despite the international nature of the
GI.ABVO operations, jurisdiction should be asserted. The
case was remanded to the Administrative Laaw Judge for
further action not inconsistent with the Board's )ecision.
including the preparation and issuance of' a Supplemental
D)ecision on the merits of the allegations of discrimination.
FIN)IN(iS o() FA( I
I. A.l.I1(i&!I) UNFAIR LABOR PRA( II( S
A. Fat i.s
I. Background
On October 10. 1975, Respondent. AB and V02. entered
into a prebidding agreement to perform certain dredging
operations in Damman. Saudi Arabia (Resp. Exh. 2). A
subcontract for the performance of the work was subse-
quently awarded to the joint venture. On December 16.
1975, Respondent. AB and V02, entered into a joint venture
agreement for the performance of the work. The joint ven-
ture ((GI.ABVO) agreement designates AB as the "sponsor"
of the joint venture responsible for the "general conduct,
supervision and administration of the affairs of the Joint
Venture." subject to the management committee. The man-
agement committee is responsible for the overall manage-
ment and supervision of the project.
Pursuant to its obligation under the joint venture agree-
ment. Respondent sent three vessels, two tugboats, and a
launch to Saudi Arabia. The contractual responsibility for
actually hiring employees for GLABVO rests with AB, the
iponsor. as ordered by the management committee. This
function was performed on behalf of GLABVO by R. L.
Enterkin. Enterkin was an employee of both GLABVO and
Respondent. He continued to receive his base salary from
Respondent but he also received overseas pay and a job
completion bonus from GLABVO amounting to more than
his salary with Respondent. Enterkin undertook the man-
ning of the three vessels on behalf of GLABVO in Miami,
Florida. Once employed. these employees were placed on
the GLABVO payroll and paid by GLABVO from
The joint venture is composed of two Dutch firms and GiLD. The prime
:ontracior for the joint venture project is a Dutch firm, Dredging Interna-
:ional and NV Hollandsche Annemingsmu, herein called NV. The two
Dutch firms ho along with GLD compose the joint enture are Amsterdam
Ballast Dredging and Dredging V02. herein called respectively. AB and V02.
2 Great Lakes Dredge and Dock ('Compan', 240 NLRB 197 (1979)
The joint venture's project is by way of the subcontract with NV who has
:he contract with the Saudi Arabian government.
244 NLRB No. 28
164
GjREAT AKES D)R[)(iE AND I)O(K CO.
GLABV() bank accounts.4 (I.ABVO established and
maintains a payroll office operating in Saudi Arahbia. inm-
ployees are paid in Saudi Arahian currenc and no deduc-
tions are made from their p pursuant to an Unlaited
States laws.
2. The alleged discriminatory refusals to emplo
In late November. Albert Cornette. secretary-treasurer of
the Union. telephoned Melsin .emmerhirt. vice president
and division manager of the North American Division of
Respondent. to inquire about a rumor that was circulating
to the effect that Respondent was going to be doing a job in
Saudi Arabia. Lemmerhirt told him that the joint venture
agreement had not yet been signed but that when and if it
were he would call Cornette. After learning in late Decem-
ber that the joint venture agreement had been signed .em-
merhirt called Cornette on January 6. 1976. During the
conversation Cornette took the position that the Union was
entitled to have its members. under the existing collective-
bargaining agreement. man the vessels to be used in the
Saudi Arabian operation. Lemmerhirt expressed his dis-
agreement saying that the Saudi Arabian job was not cov-
ered by the contract and telling him that the vessels would
be manned under individual employment contracts with the
joint venture which would be prepared at a later date. Lem-
merhirt suggested that the discussion be postponed until he
had information about the contents of the employment con-
tract since it contained the conditions of employment. in-
cluding salary.
Some time prior to this. Robert Tillotson. Ernest Ors-
land, and George Lake all testified to the effect that they
spoke to management asking to be given considerations for
employment on the Saudi Arabian job. Tillotson testified
that he was told by George Rhoades. assistant division
manager and division superintendent, that they were not
hiring anybody from up North. that they were hiring from
down South, and that nobody from the Union was going.
Orsland testified that he spoke to Joseph Rankin. personnel
manager, telling Rankin that he was interested in the Saudi
Arabian job and was told by Rankin that there was nothing
definite at that time, and that he was never thereafter of-
fered employment. George Lake testified that he also asked
to be considered for the Saudi Arabian job and although he
was assured of consideration he was not interviewed or con-
tacted about a job. The parties also stipulated at the hear-
ing that another employee. Warren Willmot, if called to
testify, would testify that he also spoke to Rhoades in Octo-
ber 1975 asking to be sent on the Saudi Arabian job and
that Rhoades told him that he would check it out and see.
All of these conversations predated the existence of' the
joint venture individual employment contract containing
the terms and conditions of employment on the job which
was completed in about mid-February 1979. And while the
'While it appears that no members of United Marine Division. ILA.
AFL CIO, Local 333, the Charging Party herein, were hired, some of the
crew were members of Local 25 of the International Union of Operating
Engineers. On another job in Dubayy. Arab Emirates. where Respondent is
a subcontractor. Respondent hired two members of Local 333 One of these.
Warren Willmot. is an alleged discriminatee.
dates ol the vario us con versations ,ar, . it is undisputed that
the\ all took place in the lall and winter of 1975 prior to the
Febhruary 19. 1976. meeting discussed below.
Rhoades testified that he does not recall speaking to Will-
mot. but he did speak to se, eral men about the job in No-
vember and D)ecember 1975. However, at that time. since
no employment contract had yet been written. he was not
aware of the terms of employ ment. including the A age rate.
After the employment contracts were recei ed in Fehruar,
several interested employees were provided with copies hut
no one thereafter expressed a desire to go and no one ever
asked for a job application.
('ornette called L.emmerhirt again on lanuary 14' to set
up a meeting to discuss the manning of the essels. Lem-
merhirt agreed to contact Fred Hazard. ice president and
general superintendent. and to find a mutually acceptable
date. Lemmerhirt called Cornette on February 4 to arrange
the meeting. also telling him that theN would have an em-
ployment contract in about a week and suggesting that Cor-
nette submit a list of individuals who were interested. Cor-
nette agreed to send the list, which he did, and Respondent
received the list on February 17. After some discussion a
meeting was arranged for February 19. The meeting took
place at the union offices and was attended bN Cornette for
the Union and Lemmerhirt and Hazard for Respondent.
Cornette again took the position that the Union was enti-
tled. under the contract, to man the vessels going to Saudi
Arabia. Lemmerhirt disputed this. contending that the geo-
graphical jurisdiction of the contract did not extend to Sau-
di Arabia.
Cornette then suggested that the Union prepare an em-
ployment agreement for the manning of the vessels. and
Respondent declined. ('ornette suggested that the Union
could "shut down" Respondent and was told that that was
his prerogative. Later in the meeting. after more discus-
sions. it was agreed that Cornette would refer any men who
were interested in the Saudi Arabian jobs to Lemmerhirt
for an interview. Lemmerhirt testified that he wanted to be
certain that those interested were aware of the living condi-
tions in Saudi Arabia before making a decision. According
to Lammerhirt. there were also economic considerations in-
solved since it was expensive to fly home disgruntled em-
plo ees from foreign jobs. After the interviews Lemmerhirt
was to refer them to Rhoades for job applications, listing
their experience, which would be sent to R. L. Enterkin in
Miami. where the vessels were being named. Lemmerhirt
explained that he did not have the authority to hire. only to
intercede with GLABVO on behalf of an applicant. At the
February 19 meeting Lemmerhirt also advised Cornctte
that an employment agreement had been prepared. but he
did not have one with him. Lemmerhirt agreed to mail
copy to Cornette. which Lemmerhirt did the next day.*
Lemmerhirt denied ever saying that the Saudi Arabian
job would be nonunion. only that the contract did not ap-
ply and hiring would be "strictly an employment agreement
between the joint venture and the men."
'Dates refer 1o 1976 unless others.lse indicated.
6 Hazard did not testifs at the hearing. but the parties stipulated that
Hazard. i called. would testifs that neither he nor Lemmerhirt said that the
job n Saudi Arabia would be nonunion or that they would under no circum-
stances emplos members oi the Union on the Saudi Arabian job
16
1I))(' ISIONS ()1 NAII()NAL. IABOR RILI.AIIONS BOARD)
After the ebruar 2 cnversation. a;ccording to I.e11-
merihirt. 1he and ('olrnctte did not discuss the Saudi Arabian
job and no one as ever referred to l.emnirhirt fti an
inters ics. I.nemmlrhirt also testified that he did not call the
Union to obtain men because the agreement reached on
Februar\ 19 w. as that prospective applicants would he re-
fierred h the inion to him lfor an interview. When asked
whs he did not request an? men on the list submitted h\ the
lnion to he interviewed .lemmcrhirt testified that the ar-
rangement for the Union to send men for interview super-
seded the talks involving any utilization of the list.
Corncite. on the other hand. states that at the F:ebruars
19 meeting. and in contacts before that. I.emmerhirt had
consistently taken the position that it was a nonunion job in
Saudia Arabia and that union men would not he hired for
it. According to Cornette there was never any' agreement to
send men to Lemmerhirt for an interview. hut at another
point in the record he concedes that job interviews were
discussed. Cornette testified. "Yes, I told the company that
they had the list and I'll send men to be interviewed for
work and if the people I sent to be interviewed were unac-
ceptable we would send more and all they had to do is call
the union hiring hall." Cornette also disputes Lemmnerhirt's
testimony that the Saudi Arabian job was not discussed
between them after the February 19 meeting. stating that in
several conversations thereafter the Saudi Arabian job was
discussed and that l.emmerhirt always took the position
that he would not hire union men. However, to the extent
that their testimony varies I conclude that Lemmerhirt w'as
the more reliable witness, particularly with respect to the
February 19 meeting which is substantially corroborated by
Hazard's stipulated testimony. Specifically. I conclude that
Lemmerhirt did not say that Respondent would not hire
any union members. In reaching this credibility resolution I
note that, with respect to the agreement to interview. Cor-
nette at first denied that Lemmerhirt said he would inter-
view union member applicants. However. later in his testi-
mony. Cornette concedes that he was to send men to him
for interview. Again, it is undisputed that individual em-
ployment contracts were sent to and received by Cornette
and also that these contracts were made available to union
members by Rhoades. This suggests at least a willingness to
consider union members for employment and undermines
Cornette's uncorroborated testimony that Lemmerhirt was
insisting that union members would not be hired for the
job.
B. Discussion and Analysis
At the outset it should be noted that the General Counsel
does not take the position that Respondent was obliged to
hire employees under the terms of the contract. The viola-
tion in the instant case, if any, consists of refusing to hire
members of the Union because they were members of the
Union. In my opinion, the facts do not establish that Re-
spondent's failure to hire members of the Union was thus
discriminatorily motivated.
It is well established as a matter of Board and court prec-
edent that an employer may not discriminate in the em-
ployment of employees because of their membership in a
labor organization. The application of this legal principle
must he evaluated on the flicts of each case. A review of the
,.redited testimony herein discloses that prior to the Febru-
,tr! 19 meeting between ornelte. Lemmerhirt. and Hazard,
he Inion took the position that Respondent was contrac-
:ualls obligated to hire emplosees for the Saudi Arabian
oh uncer the procedttircs of the current collective-bargain-
rig agreement. Some union members had contacted mem-
'ers of' management concerning prospective emploilient
on the Saudi Arabian job. however. these conversations all
occurred before the joint venture had drafted the individual
employmenit contracts. hese were received about mid-
ebruar-, shortly befohre the Iebruary 19 meeting. Since
Ihese employninent contracts contained the actual terms and
conditions of employment. including the wage rate. it is
difficult to see how an\ emplo?\.llent commitment or even
werious emplosment discutssionl could hae taken place be-
lore the` become alailable.
Then came the February 19 meeting. at which Cornette
initiallb took the position that the contract applied to the
Saudi Arabian job. However. litter in the discussion (or-
nette backed of(l from this position and reached an agree-
menit with Respondent providing that applicants for the
Saudi Arabian job would be referred to Lemmerhirt for a
job interview. In essence, this agreement superceded and
formalized the prior hiring discussions between the parties
and was reasonable precaution, since Respondent had a
legitimate interest in seeing that job applicants were aware
of the conditions of temploy ment in Saudi Arabia. Lemmer-
hirt also made it clear that the joint venture was the Em-
ploer. but that Respondent would intercede on behalf of
qualified union members with R. L. Enterkin, who was hir-
ing employees in Miami to man the vessels for the joint
venture. A copy of the employment agreement was sent to
the Union the day after the meeting and was received by
Cornette. Any informed, serious application fr work on
the Saudi Arabian job could not have been made until this
time, since the specific conditions of employment, including
salary. were unknown until then.
It is undisputed that after the February 19 meeting no
union member appeared for an interview, and no union
member applied for work on the Saudi Arabian job. This is
unexplained in the record.
I also note that the job was being manned by Enterkin in
Miami where several employees hired were members of Lo-
cal 25 of the International Union of Operating Engineers. It
is also conceded that two members of the Union are em-
ployed on another job in Dubayy. Arab Emirates. One of
them is an alleged discriminatee. Warren Willmot. On the
I)ubayy job Respondent is a subcontractor and controls the
hiring rather than part of a joint venture.
The General Counsel contends that Respondent was ob-
ligated to contact the 12 alleged discriminatees regarding
their employment of Saudi Arabia. I cannot conclude. on
? Respondent, in its brief, suggests that the J nlion's failure to refer any of
ils members for work in Saudi Arabia was because no one wanted the work.
I is also possible that in view of Respondent's refusal o honor the contract
ii hiring for the Saudi Arabian job. that the Union's interest in manning the
vessels became diminished. However. these obserations are essentiall)
sReculative and ancillary to the central relevant fact that no one applied. for
shaeser reason.
6Ih
GREAT LAKES DREDGE AND DOCK CO.
the facts of this case, particularly in view of the agreement
on hiring reached on February 19. that Respondent had
any duty to solicit union members for employment or that
Respondent discriminated against them when it failed to do
so.
Accordingly, I conclude that Respondent did not violate
the Act by refusing and failing to employ union members
on the vessels used in the Saudi Arabian job.' The com-
plaint herein should be dismissed.
' Respondenl also contends that the complaint is barred under Sec 10(hb)
of the Act, since it is based on unfair lahbor practices occurring more than 6
months prior to the filing of the charge and, further, that the complaint
should be dismissed on the grounds of laches. because of delays n issuing the
complaint and commencing the hearing. However, in view of the above
disposition of this matter, it is unnecessary for me to pass on these conten-
tions.
CoN( I.usloN oF LANA
Respondent has not engaged in any conduct violative of
the Act.
Upon the foregoing findings of fact and conclusions of
law. I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions. and recommended Order herein shall. as prosided in Sec. !02.48
of the Rules and Regulations, be adopted by the Board and become its
findings. conclusions, and Order, and all objectll,ns thereto shall he deemed
waived for all purposes.
167