H. C. Thomas, Inc.

National Labor Relations Board - Board Decisions

Jul 13, 1977

230 N.L.R.B. 808 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. C. Thomson, Inc. and District No. I - Pacific
Coast District, Marine Engineers' Beneficial Asso-
ciation. Case 20-CA-10206
July 13, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On December 3, 1976, Administrative Law Judge
Maurice M. Miller issued the attached Decision in
this proceeding. Thereafter, Respondent, General
Counsel, and the Charging Party filed exceptions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, only to the extent consistent herewith.
I. During the latter part of 1973 or early 1974,
Floyd Crites purchased Respondent and its tugboat
Yolo. Initially, the Company was not an operative
enterprise but, sometime during the first few months
of 1975, Crites shifted his barge-hauling services from
another company he owned, River Sands, Inc., to
Respondent. At that time two tugboat operators,
Peter Ferrari and Woodie Wilkinson, were trans-
ferred from another of Crites' enterprises (West
Coast Dredging Company) to Respondent in order
to operate the Yolo. While employed by West Coast
Dredging Company, these tugboat operators had
been covered by a collective-bargaining agreement
between that company and the Marine Engineers
Beneficial Association (MEBA), which expired in
mid-1974 without being renegotiated. However, at
the time of their transfer to Respondent and
immediately thereafter, Wilkinson and Ferrari were
not covered by a collective-bargaining contract.
Nevertheless, Crites was aware of their coverage
under the previous contract and of their membership
in MEBA.
On February 7, 1975, MEBA Business Representa-
tive Ferguson and Leo Turrin, Respondent's vice
president and general manager, executed a 30-day
interim agreement providing in relevant part that: (1)
the two parties would meet again during its term in
order to ratify a complete working agreement; (2)
' The General Counsel and Charging Part) have excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an Administrative L aw Judge's resolutions
with respect to credibility unless the clear preponderance of all of the
230 NLRB No. 106
rates of pay and contributions to fringe benefit plans
would be the same as contained in MEBA's
commercial towing agreements in the San Francisco
Bay area; and (3) the working and general conditions
would be governed by the terms of a June 1, 1974.
agreement with Operating Engineers Local # 3
(hereinafter Local 3) covering Northern California
barge operations.
During the 30-day life of this interim agreement,
Ferguson tried unsuccessfully on several occasions to
contact Turrin to arrange bargaining sessions. The
two finally met on March 10, and three or four times
subsequently. Although Ferguson was not initially so
informed, Turrin was not authorized to bind Respon-
dent during these negotiations. Consequently, the
sessions between Turrin and Ferguson did not result
in any final agreement or specific contract language,
but Turrin nevertheless testified that "[W]e worked
this out, so that we got fairly close .... " At their
last meeting, Ferguson presented Turrin with the
Union's complete contract proposal. Turrin then
indicated for the first time that he was not authorized
to bind Respondent, that only Crites could give final
approval for any agreement, and that he would
submit the MEBA proposal for Crites' consideration.
Turrin did so, but Crites refused to approve it
because he believed it varied too greatly from the
terms of Respondent's contract with Local 3. On
Friday, April 4, Crites, Turrin, and Ferguson met
together for the first and only time during the
negotiations. They discussed the MEBA proposal -
which Crites essentially rejected, while at the same
time insisting upon a contract paralleling the Local 3
contract referred to above. Ferguson strongly pro-
tested this demand, particularly since it would result
in a wage reduction to $6.30 an hour from the $8.74
provided for under the interim agreement. Upon
Ferguson's rejection of his proposal, Crites stated
that "MEBA wasn't the only union that [he] could
deal with. As a matter of fact, with the employment
situation the way it was, [he] really didn't have to do
business with any union." In spite of this reaction,
arrangements were made for Turrin to draft a
complete counterproposal which Ferguson would
present at MEBA's membership meeting 2 days later
on April 6. Ferguson promised that the proposal
would be considered, but predicted its rejection.
At that union meeting, Respondent's contract
proposal was rejected. Ferguson informed Respon-
dent of the membership's action in a letter dated
April 8. Upon receipt of this letter, Crites concluded
that MEBA had terminated negotiations and that the
relevant evidence convinces us that the resolutions are incorrect. Standard
DrV Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3.
1951). We have carefully examined the record and find no basis for
reversing his findings.
808
H. C. THOMSON
Union had forfeited its recognition rights because the
tugboat operators, as discussed more fully below,
had been on strike since the latter part of March. He
then directed Turrin to contact Captain Fuller of the
International Organization of Masters, Mates and
Pilots (hereinafter MMP) to see if they had people
available to staff the Yolo. Captain Fuller indicated
that his union could supply the necessary people and
suggested that "later on down the road" they could
negotiate a collective-bargaining agreement. Shortly
thereafter, Turrin met with Fuller and the two
reached a verbal consensus that MMP would supply
the tugboat operators at wages and fringe benefits
along the lines of those contained in Respondent's
contract with Local 3. No written contract or other
agreement had, as of the hearing, been executed by
Respondent and MMP, although a copy of Respon-
dent's contract proposal had been sent to that union.
Nevertheless, MMP members manned the Yolo when
it resumed operations I - 2 weeks after the MEBA
membership rejected Respondent's contract propos-
al.
MEBA Representative Ferguson again met with
Turrin on a date some 3 or 4 weeks subsequent to the
April 6 contract rejection and suggested a resump-
tion of negotiations. Turrin rejected this offer, stating
that Ferguson was too late in that Crites either had
already entered into an agreement with MMP or was
about to do so. Turrin also indicated that he would
contact Ferguson later, but had not done so as of the
hearing.
The Administrative Law Judge found that the
striking tugboat operators were only economic
strikers who had been permanently replaced. From
such findings, he then concluded that MEBA no
longer represented Respondent's employees, Respon-
dent's refusal to resume negotiations was thereby
privileged, and, accordingly, there was no violation
of Section 8(a)(5) of the Act when it refused to
resume bargaining with MEBA. We disagree. In our
judgment, Respondent engaged in bad-faith bargain-
ing in violation of Section 8(a)(5) of the Act
throughout the negotiations-a conclusion we draw
from several indicative factors.
First, while the Administrative Law Judge, relying
on credited testimony, found that Turrin was not, in
fact, vested with authority to bind Respondent in the
negotiations. there is no probative record evidence2
: cWe r cognize that. in answering a leading question b) Respondent's
attorne' on direct examination. Turrin responded affirmatively when asked
to confirm that he told Ferguson from the outset that he did not have full
authorit>. Again. in response to) a leading question. Turrin also stated that
he at no time told ferguson he wals in charge of Respondent's negotiations
We note. however. that in this latter response I urrin failed to indicate that
he. in fact, afllirmativel disavowed his authority in the negotiations. Since
both these answers were in response to leading questions under direst
examination. we accord minimal weight to them and view them as little
more than Respondent attorneys testimony in favor of his client's position
to show that Turrin ever disavowed the apparent
authority to commit his employer which Ferguson
would reasonably have presumed him to possess.
Inasmuch as no exceptions were taken to the
Administrative Law Judge's finding that just a few
weeks before Turrin, acting independently of Crites,
had negotiated and executed an interim Agreement
with Ferguson, and as the record is void of evidence
to counter this finding, we accept and rely on it.
Thus, absent any notice or indication to the contrary,
Ferguson could reasonably have expected that
Turrin, who previously had authority to bind
Respondent, continued to possess such power. Thus,
we conclude that Turrin's failure affirmatively to
inform Ferguson of his lack of authority until their
third or fourth bargaining session is indicative of bad
faith. This is particularly true in view of Turrin's own
testimony at the hearing that the negotiations to that
point had drawn the parties' positions fairly close
together.
Secondly, at the sole negotiation meeting with
Crites - the only person actually authorized to bind
Respondent - on April 4, Respondent proposed a
substantial wage reduction. The record clearly
suggests, as even attested to by Turrin, that up to that
point negotiations had progressed smoothly with the
parties having shifted positions and compromised on
issues in order to approach agreement. Nevertheless.
at this stage in the negotiations Crites interjected a
proposal to reduce wages by more than $2 an hour.
In view of the severity of the proposed wage
reduction, Crites must have, or at the very least
shoud have, known that such a proposal concerning
a vital issue of primary employee interest could not
have been favorably received or accepted by the
Union. Thus, we conclude, contrary to the Adminis-
trative Law Judge, that Crites' introduction of the
wage-reduction issue was, indeed, a "widening of the
area of disagreement" evidencing Respondent's bad
faith.
Finally, Respondent's conduct immediately after
MEBA's rejection of its counterproposal is further
indicative of its bad faith. Hardly before the ink on
MEBA's April 8 letter to Respondent was dry, Crites
instructed Turrin to contact MMP concerning
replacements for the striking employees, licensed
operators were secured to operate the vessel, and a
verbal agreement was reached with MMP that the
In view of the absence of any testimony to this effect on Turrin's own
initiative or, in his own words, rather than those of his attorney). we find the
record evidence insufficient to establish that he disclaimed his apparent
authority. Our finding in this regard is not, however, in derogation of the
Administrative Law Judge's conclusion (which we adopt) that alter
MEBA's complete contract proposal was presented to Respondent at the
last negotiation session between Turrin and Ferguson Turrin then made it
clear that he was "working" for Crites who would make the Company's final
determination
809
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages and employment conditions would parallel the
Local 3 contract. These actions clearly indicate
Respondent's eagerness to extricate itself from its
collective-bargaining relationship with MEBA. Such
definitive actions by Respondent, following so
closely upon MEBA's rejection of its proposal and
after only one session between the individuals
capable of binding the parties, compel the conclusion
that Respondent was not inclined to approach these
negotiations with a good-faith intent to reach
agreement. Further, viewing these actions in light of
Crites' April 4 statement to Ferguson that, "MEBA
wasn't the only union that [he] could deal with,"
serves to underscore Respondent's bad faith. Thus,
on the basis of these considerations we conclude that,
on or before April 4, Respondent violated Section
8(a)(5) of the Act by engaging in bad-faith bargain-
ing.
In view of these findings, it is apparent that
Respondent's hiring of the two operators referred by
MMP did not have the effect of permanently
replacing Ferrari and Wilkinson who were then on
strike. As discussed further below, the MEBA strike
may well have begun as an economic strike.
However, by the time the two MMP operators had
been retained, the strike had been converted into an
unfair labor practice strike by virtue of Respondent's
8(a)(5) conduct. Accordingly, Ferrari and Wilkinson
then enjoyed the status of unfair labor practice
strikers, they were not subject to permanent replace-
ment, and Respondent had an ongoing obligation to
bargain with MEBA.
2. As mentioned above, during the course of the
negotiations herein, Respondent's MEBA-represent-
ed tugboat operators went on strike. Sometime
during the last 15 days of March, operator Ferrari
called Ferguson at the MEBA business office by
ship-to-shore radio from the Yolo to learn whether
the contract then being negotiated had been settled
and to complain about a new boat-staffing policy he
had learned about before commencing his run.
According to Ferrari, while at Respondent's Rich-
mond yard preparing to make a run to Port Chicago,
salesman Mike Kuzak (a spokesman for Crites) told
him that he and Wilkinson would be split up as "Mr.
Crites wanted his boat to be operated with one boat
operator and one non-licensed man" at a time. Both
Ferrari and Wilkinson, nevertheless, went on this
scheduled run, but Ferrari stated that he was not sure
whether this was actually contrary to Kuzak's latest
orders. Ferrari had called Ferguson to complain
about Kuzak's orders because, as he understood
them, they would require either that a licensed
operator be on duty for more than 12 hours or that a
nonlicensed person operate the vessel part of the time
-all violations of Federal law which could result in
the licensed operator being fined and/or losing his
license. Ferguson directed Ferrari to take the Yolo
back to the Richmond yard and tie it up, which he
did. Shortly thereafter, MEBA members began
intermittently picketing at the Richmond Yard and
at several other of Respondent's facilities.
Kuzak, on the other hand, without being able to
recall the precise language he used, testified that he
told Ferrari and Wilkinson that he was "in charge of
trying to work [sic] out, so as to have one operator on
the boat at one time." Kuzak also testified, however,
that "I can't remember now what phase [sic] it was
in; but I am sure it wasn't in the form of an order. It
was probably just in the form of telling them what
our ideas were, about the boat." He further stated
that when the half-filled tugboat returned to Rich-
mond he tried to explain to Ferrari and Wilkinson
that "the idea we had there was to have three
operators, maybe even four operators - and switch
'em off." He testified that, in spite of this explana-
tion, the employees ceased working.
Since the beginning of the strike, MEBA picketed
Respondent's operations on a sporadic basis. As
detailed above, a week or two after MEBA rejected
Respondent's contract proposal, Respondent re-
sumed operation of the Yolo. Upon becoming aware
of this, Ferrari called Kuzak and asked what was
going on. Kuzak replied that the tugboat operators
had not been discharged, nor laid off, but simply that
Respondent had a new tugboat crew. Turin also
indicated that he possibly had seen Ferrari on one
occasion after he was no longer employed by
Respondent and acknowledged that he very possibly
told him that he could reapply for work, but if he did
return to work for Respondent he would have to join
MMP since the Company no longer had a contract
with MEBA.
The Administrative Law Judge found that Ferrari
and Wilkinson misconstrued Kuzak's comments
concerning Respondent's new boat-staffing policy,
and that they had not been told that Respondent
would reduce its licensed operator complement so as
to require operators to man the vessel in excess of 12
hours. Instead, the Administrative Law Judge found
the tugboat operators were told that Respondent was
merely considering a manning schedule whereby
operators would be relieved after their 12-hour shift
by other operators ferried to the boat for that
purpose. Thus, the Administrative Law Judge con-
cluded that the strikers herein were not unfair labor
practice strikers protesting a change in work schedule
because the scheduling policy had not, in fact, yet
been altered; and, further, since the decision to
definitely do so had not even been made, the tugboat
operators were only told that Respondent was
considering a change in manning policy.
810
H. C. THOMSON
While the record is admittedly far from clear as to
what Kuzak told Ferrari and Wilkinson concerning
the manning-policy change, we, nevertheless, cannot
accept the Administrative Law Judge's characteriza-
tion of this incident. Kuzak's testimony relating to
his comments to the employees prior to their
departure from the Richmond yard was extremely
sparse, and can, at best, be described as vague and
conclusionary generalizations utterly lacking in
specificity. As to the statements he made upon the
operators' return to Richmond, his testimony is
considerably more specific and detailed. But, both
this disparity in testimony about the two conversa-
tions and the very fact that it was even necessary for
Kuzak to further explain management's plans moves
us to conclude that Kuzak's original comments to the
operators were not marked by the clarity and
precision attributed to it by the Administrative Law
Judge. Thus, rather than denominating Ferrari's
interpretation of Kuzak's comments and resultant
action as "misconstruing" Kuzak's statements, we
find that the conduct of Ferrari and Wilkinson was,
instead, a legitimate response to what they had been
told.3 Kuzak's comments were undoubtedly so vague
and confusing as to arouse concern among the
tugboat operators that they would be required to
violate Federal law and thereby lose their licenses
and means of livelihood. However, in view of the
absence of record evidence that Respondent had in
fact unilaterally changed the vessel manning sched-
ule, the Administrative Law Judge properly found
that the work stoppage resulting from Ferrari's call
to Ferguson was not an unfair labor practice strike in
protest of such a change. However, in light of our
above finding that Respondent engaged in bad-faith
bargaining violative of Section 8(a)(5) on or before
April 4, we find, contrary to the Administrative Law
Judge, that, while the strike may not have been an
unfair labor practice strike at its inception, it was
converted into one shortly thereafter - at least by
the beginning of April when Respondent pursued its
bad-faith course of conduct.
It is clear from the record that one of the reasons
why Ferrari called Ferguson on the ship-to-shore
telephone was to ascertain how contract negotiations
had progressed. Further, Ferguson testified that
whenever he called a strike at least one of the
purposes was to induce negotiations, and there is
evidence that he had experienced great difficulty in
getting Turrin to resume negotiations in March.
Thus, we find that the tugboat operators' strike was
:' In this regard. we particularly note that the Administrative Law Judge
deemed Ferrari's testimony to he credible and found that Kuzak and
General Manager Turrin "proffered no recitals specifically calculated to
controvert Ferrari's testimonial recollections. particularly with reference to
Kuzak's purported comments, which had stimulated Respondent's tugboat
operators to make their crucial ship-to-shore' call.
motivated at least in part by a desire to stimulate
negotiations between the parties. While the strike
may have initially been economic in nature, Respon-
dent's continued bad-faith bargaining in violation of
Section 8(a)(5) most certainly created serious impedi-
ments to the settlement of the strike and thereby
converted an economic work stoppage into an unfair
labor practice strike.4 Thus, at the time Respondent
replaced its striking employees with MMP operators,
Ferrari enjoyed the status of an unfair labor practice
striker. Therefore, when Ferrari, shortly after learn-
ing of Respondent's resumed operations, made an
unconditional offer to return to work, Respondent
was obligated to reinstate him. Accordingly, we find,
contrary to the Administrative Law Judge, that in
refusing to reinstate Ferrari upon his unconditional
offer to return to work because he had engaged in
protected concerted activity, Respondent violated
Section 8(a)(3) of the Act.
3. Although the Administrative Law Judge found
that Turrin conceded it was "very possible" he had
told Ferrari that the latter could reapply for work,
but if he returned to Respondent's employ he would
have to join the Masters, Mates and Pilots, he failed
to find that remark to be a violation of the Act.
Despite the tentative nature of Turrin's testimony, we
conclude that, since this declaration is consonant
with Respondent's course of conduct herein, Turrin
did make such a comment to Ferrari. And, while this
statement was not alleged as a separate violation of
Section 8(a)(1), it was fully litigated at the hearing.
We have long held "that when an issue relating to the
subject matter of a complaint is fully litigated at a
hearing. . . the Board [is] expected to pass upon it
even though it is not specifically alleged to be an
unfair labor practice in the complaint."5 According-
ly, we find that Turrin's statement to Ferrari that in
the event he were rehired he would have to join the
MMP interferes with Ferrari's Section 7 rights and is
therefore a violation of Section 8(aX I).
Upon the foregoing findings of fact, and upon the
entire record in this case, including the Administra-
tive Law Judge's Decision as modified herein, the
Board makes the following:
CONCLUSIONS OF LAW
1. Respondent, H. C. Thomson, Inc., is an
employer within the meaning of Section 2(2) of the
Act, engaged in commerce and business activities
which affect commerce within the meaning of
Section 2(6) and (7) of the Act.
Coanror Bros., Inc. 203 NLRB 774 (1973); Cavalier Division of Seeburg
Corporafion and Cavalier Corporatrion, 192 NLRB 290(197 1).
s Monroe Feed SIore. 112 NLRB 1336 ( 1955).
811
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. District No. I - Pacific Coast District, Marine
Engineer's Beneficial Association, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. All employees employed in Respondent's barge
operations; excluding office and clerical employees,
professional employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since on or about February 7, 1975, MEBA
has been the collective-bargaining representative of
the employees in the aforementioned appropriate
unit, and by virtue of Section 9(a) of the Act, has
been, and is, the exclusive representative of all the
employees in said unit for purposes of collective
bargaining with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment.
5. By failing and refusing to bargain in good faith
with MEBA since on or before April 4, 1976, and by
refusing to resume negotiations with that labor
organization since shortly after April 6, 1976,
Respondent has engaged in, and is engaging in,
unfair labor practices in violation of Section 8(a)(5)
and (1) of the Act.
6. The strike of Respondent's employees repre-
sented by MEBA commencing during the latter 15
days of March 1976 was converted into, and
continues to be, an unfair labor practice strike which
was prolonged by Respondent's unfair labor practic-
es described above.
7. By refusing, since sometime during April 1976,
to reinstate Peter Ferrari to his previous position or,
in the event that position no longer existed to a
substantially equivalent position, because of his
membership in and activities on behalf of MEBA,
Respondent has engaged in, and is engaging in,
unfair labor practices in violation of Section 8(a)(3)
and (1) of the Act.
8. By telling Peter Ferrari that he would have to
join MMP if he returned to work, Respondent has
engaged in unfair labor practices in violation of
Section 8(a)(1) of the Act.
9. By withdrawing its job offer and determining
that Anthony Taliaferro would not be offered a
tugboat operator's position, because he proposed to
clear his possible employment with MEBA and
indicated a reluctance to seek a work referral from,
or membership in, MMP, Respondent has engaged
in unfair labor practices in violation of Section
8(a)(3) and (I) of the Act.
The Remedy
Having found that Respondent has engaged in
unfair labor practices, we shall order it to cease and
desist therefrom and take certain affirmative action,
including the posting of appropriate notices, de-
signed to effectuate the purposes of the statute.
Having found that Respondent has engaged in
bad-faith bargaining and has refused to resume
negotiations with MEBA, we shall order it to cease
and desist from such conduct and to bargain
collectively in good faith, upon request, with MEBA
as the exclusive representative of its employees
concerning terms and conditions of employment;
and, if an understanding is reached, embody such
terms in a signed agreement. Further, we shall order
Respondent to reinstate Peter Ferrari to his former
job or, in the event it no longer exists, to a
substantially equivalent position, without prejudice
to his seniority or other rights and privileges,
dismissing, if necessary, any person hired on or after
the conversion of the economic strike to an unfair
labor practice strike following Respondent's embark-
ing on a course of bad-faith bargaining. Respondent
shall also make Ferrari whole for any loss of pay he
may have suffered by reason of Respondent's refusal
to reinstate him, by payment to him of a sum of
money equal to that which he normally would have
earned as wages from the date on which he applied
for reinstatement to the date of Respondent's offer of
reinstatement, less his net earnings, plus interest at
the rate of 6 percent per annum, in accordance with
the formulas set forth in F. W. Woolworth Company,
90 NLRB 289 (1950), and Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
Having found that Respondent discriminated
against Anthony Taliaferro with regard to his
prospective employment, we shall order it to offer
Taliaferro a tugboat operator's position, discharging,
if necessary to make a position available for him, any
operators hired after May 6, without prejudice to his
seniority and other rights and privileges which he
would have enjoyed had he been employed on May
6, 1975. Should it be determined, however, that no
tugboat operator vacancy presently exists, and that
Respondent has hired no tugboat operators since
May 6, 1975, Respondent H. C. Thomson, Inc., shall
prepare a preferential hiring list headed with Antho-
ny Taliaferro's name. Talifiaferro shall then be
offered employment whenever a tugboat "operator"
vacancy develops with respect to Respondent's
vessel. Respondent shall, further, make Taliaferro
whole for any pay losses which he may have suffered
by reason of the discrimination against him, by
paying him a sum of money equal to the amount
which he normally would have earned as wages, from
the date when his services would have been initially
required to the date of his actual employment or
placement on a preferential hiring list, less his net
earnings during the period designated. Taliaferro's
812
H. C. THOMSON
backpay shall be computed in the manner prescribed
in F. W. Woolworth Company, supra; and Isis
Plumbing & Heating Co., supra.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
H. C. Thomson, Inc., Pittsburg, California, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Failing or refusing, on request, to bargain
collectively in good faith with District No. I -
Pacific Coast District, Marine Engineers' Beneficial
Association, as the exclusive collective-bargaining
representative of its employees in the following
appropriate unit:
All employees employed in Respondent's barge
operations; excluding office and clerical employ-
ees, professional employees, guards and supervi-
sors as defined in the Act.
(b) Discouraging membership in District No. I -
Pacific Coast District, Marine Engineers' Beneficial
Association, or any other labor organization, by
refusing to reinstate or hire employees, or by
discriminating against them in any other manner
with respect to their hire, tenure, or any term or
condition of their employment because of their
membership in said labor organization.
(c) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, and to engage
in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as
guaranteed by Section 7 of the Act, or to refrain from
any or all such activities, except to the extent that
such right 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, as amended.
2. Take the following affirmative action designed
and found necessary to effectuate the policies of the
Act:
(a) Bargain collectively in good faith, upon request,
with the above-named Union as the exclusive
representative of its employees in the appropriate
unit and embody any understanding reached in a
signed agreement.
(b) Offer Peter Ferrari immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and
privileges, dismissing if necessary any persons hired
after the conversion of the economic strike into an
unfair labor practice strike; make Peter Ferrari
whole for any loss of pay he may have suffered as a
result of Respondent's refusal to reinstate or reem-
ploy him, in the manner set forth in the Remedy
section of this Decision.
(c) Offer Anthony Taliaferro immediate employ-
ment without prejudice to whatever seniority and
other rights and privileges he would have enjoyed
had he been employed on May 6, 1975, dismissing, if
necessary to make a position available for him, any
tugboat operator hired after May 6, 1975. In the
event no tugboat operator vacancy presently exists
and no one has been hired for such a position since
May 6, 1975, establish a preferential hiring list
headed by Taliaferro. If such a preferential hiring list
is established, offer Taliaferro employment immedi-
ately upon the development of a tugboat operator
vacancy. Make Anthony Taliaferro whole for any
loss of pay he may have suffered by reason of the
discrimination practiced against him, in the manner
set forth in the Remedy section of this Decision.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Post within its Richmond, California, facility
and other facilities or premises from which Respon-
dent carries on business copies of the attached notice
marked "Appendix." 6 Copies of said notice, on
forms provided by the Regional Director for Region
20, after being duly signed by Respondent's represen-
tative, shall be posted by it 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
813
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively in
good faith, upon request, with District No. I -
Pacific Coast District, Marine Engineers' Benefi-
cial Association, as the exclusive collective-bar-
gaining representative of our employees in the
following appropriate unit:
All employees employed in Respondent's
barge operations; excluding office and cleri-
cal employees, professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT discourage membership in
District No. 1 - Pacific Coast District, Marine
Engineers' Beneficial Association, or any other
labor organization, by discriminating against any
employee, or job applicant, with regard to his hire
or tenure of employment, or any term or
condition of employment because of his member-
ship in said labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees, or job
applicants, with respect to their exercise of the
right to self-organization, to form labor organiza-
tions, to join or assist the Union named above, or
any other labor organization, to bargain collec-
tively through representatives of their own choos-
ing, and to engage in any other concerted activity
for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any
and all such activities, except to the extent that
such rights may be affected by an agreement
which requires membership in a labor organiza-
tion as a condition of employment, as authorized
by Section 8(a)(3) of the National Labor Rela-
tions Act, as amended.
WE WILL offer immediate reinstatement to
Peter Ferrari to his former position or, if such
position no longer exists, to a substantially
equivalent position, without prejudice to his
seniority and other rights and privileges he would
have enjoyed if we had reinstated him upon his
offer to return to work, dismissing if necessary
any persons hired after the strike by District No.
I - Pacific Coast District, Marine Engineers'
Beneficial Association, was converted to an unfair
labor practice strike by our conduct.
WE WILL make Peter Ferrari whole for any loss
of pay he may have suffered as a result of our
refusal to reinstate him by paying him a sum of
money equal to that which he would have earned
absent our refusal to reinstate him.
WE WILL offer Anthony Taliaferro immediate
employment without prejudice to whatever se-
niority and other rights and privileges he would
have enjoyed had he been employed on May 6,
1975, dismissing, if necessary to make a position
available for him, any tugboat operator hired
after May 6, 1975. In the event no tugboat
operator vacancy presently exists and no one has
been hired for such a position since May 6, 1975,
WE WILL establish a preferential hiring list headed
by Taliaferro. If such a preferential hiring list is
establshed, WE WILL offer Taliaferro employment
immediately upon the development of a tugboat
operator vacancy.
WE WILL make Anthony Taliaferro whole for
any loss of pay he may have suffered as a result of
the discrimination practiced against him by
paying him a sum of money equal to that which
he would have earned absent such discrimination.
H. C. THOMSON, INC.
DECISION
Statement of the Case
MAURICE M. MILLER, Administrative Law Judge: Upon
a charge and amended charge filed on May 5 and July 18,
1975, respectively, and duly served, the General Counsel of
the National Labor Relations Board caused a complaint
and notice of hearing dated October 6, 1975, to be issued
and served on H. C. Thomson, Inc.,' designated as
Respondent within this decision. Therein, Respondent was
charged with the commission of unfair labor practices
within the meaning of Section 8(a)(l), (3), and (5) of the
National Labor Relations Act. 61 Stat. 136, 73 Stat. 519.
Respondent's answer, duly filed, conceded - through its
failure specifically to traverse - certain factual allegations
within General Counsel's complaint, but denied the
commission of any unfair labor practice.
Pursuant to notice, a hearing with respect to this matter
was held on January 22, 1976, in San Francisco, California,
before me. The General Counsel, Complainant Union and
Respondent were represented by counsel. Each party was
afforded a full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence with
respect to pertinent matters. Since the hearing's close, a
brief has been received from General Counsel's representa-
tive; that brief has been duly considered.
Respondent's answer, together with correspondence made part of the
record suggests that the firm's name should properly be spelled H. C.
Thomsen, Inc. No motion to amend the case caption has, however, been
made.
814
H. C. THOMSON
FINDINGS OF FACT
Upon the entire testimonial record, documentary evi-
dence received, and my observation of the witnesses, I
make the following findings of fact:
1. JURISDICTION
Respondent, H. C. Thomson, Inc., presently functions as
a California corporation. It maintains a principal place of
business in Pittsburg, California, from which it conducts
business hauling commodities by barge on San Francisco
Bay and nearby waterways. The firm does business as a
wholly-owned subsidiary of F. E. Crites, Inc., likewise a
California corporation.
Some time before the situation developed with which this
case is concerned, Respondent H. C. Thomson, Inc., had
been purchased by F. E. Crites, Inc., to take over the
business of River Sands, Inc.; that corporation - which
Floyd E. Crites likewise owned - had, previously, staffed,
operated, and maintained a tug, with which it had
performed barge-hauling and various other services.
During 1975's early months - though Respondent H. C.
Thomson, Inc., then "owned" the tug, Yolo, which River
Sands, Inc., had previously staffed and maintained - the
latter corporation continued to perform barge-hauling
services, for which it utilized the tug designated. Respon-
dent's tugboat operators were - for several months -
treated as River Sands' employees; since that firm was then
considered the so-called "operational" company, Yolo
personnel were compensated with payroll checks drawn in
that firm's name. Currently, however, River Sands provid-
ed no business services.
F. E. Crites, Inc., so far as the record shows, functions
solely as a holding company, with Floyd E. Crites sole
stockholder and managerial head. Functioning in that
capacity for both F. E. Crites, Inc., and Respondent herein,
Crites concededly formulates and controls labor relations
policies for his corporate alter ego and likewise for
Respondent, that firm's subsidiary. Crites, further, func-
tions as the sole owner-stockholder of West Coast Dredg-
ing Company, likewise a California corporation, and
controls its labor relations policies.
During Respondent's fiscal year, or, alternatively, the
calendar year which preceded the date on which General
Counsel's complaint issued, West Coast Dredging per-
formed services worth more than $50,000 for Pacific Gas
and Electric Company, a Northern California public utility
company which is, concededly, engaged in commerce,
within the meaning of the statute.
Since Floyd E. Crites functions as the responsible owner-
stockholder and managerial head of F. E. Crites, Inc.,
Respondent, and West Coast Dredging, these firms may
properly be considered both commonly owned and
commonly managed. More particularly, their labor rela-
tions policies have been, and still are - so the record
shows - commonly determined. For jurisdictional purpos-
es, therefor, these three firms may legitimately be consid-
ered a single employer. Sakrete of Northern California, Inc.
v. N.L.R.B., 332 F.2d 902 (C.A. 9, 1964) enfg. 140 NLRB
765 (1963), supplementing 137 NLRB 1220 (1962). And
Respondent herein, H. C. Thomson. Inc., because of its
close, shared ties with F. E. Crites, Inc., and West Coast
Dredging, may properly be considered an employer within
the meaning of Section 2(2) of the Act, engaged in
commerce and business activities which affect commerce.
within the meaning of Section 2(6) and (7) of the statute. I
so find. Further, with due regard for presently applicable
jurisdictional standards, I find assertion of the Board's
jurisdiction in this case, with respect to H. C. Thomson,
Inc. particularly, warranted and necessary to effectuate
statutory objectives.
II. COMPLAINANT UNION
District No. I - Pacific Coast District, Marine Engineers
Beneficial Association, designated as Complainant Union
within this decision, is a labor organization within the
meaning of Section 2(5) of the Act, as amended, which has
admitted certain of Respondent's employees to member-
ship.
III. THE UNFAIR LABOR PRACTICES CHARGED
A. Issues
This case presents several substantive questions. Two
derive from General Counsel's complaint, initially drafted
and served; the third derives from a supplementary
amendment to General Counsel's complaint, proffered and
permitted while the hearing was in progress. These
questions may be summarized, generally, as follows:
I. Whether Respondent's management sometime dur-
ing April or May 1975, specifically, improperly withdrew
its previously conceded recognition of Complainant Union
as the collective-bargaining representative for certain of its
tugboat personnel, within a defined unit considered
appropriate for collective-bargaining purposes.
2. Whether, following a work stoppage which had
temporarily halted Respondent's tugboat operations, that
firm's management improperly refused to reinstate a
tugboat crew member, Peter Ferrari, when he sought
reinstatement unconditionally.
3. Whether, shortly thereafter, Respondent's manage-
ment withdrew a tentative job offer, which had previously
been communicated to Anthony Taliaferro, and subse-
quently refused to hire him, because of his conceded
membership in Complainant Union herein.
With respect to these several matters, General Counsel,
of course, pressed for affirmative responses. Respondent
counters, however, with contentions: (1) That Complainant
Union's members previously in Respondent's hire had
been permanently replaced, following their voluntary
cessation of work, and that Respondent's consequent
failure to recognize Complainant Union as collective-
bargaining representative for such replacement employees
should, therefore, be considered proper; (2) that Ferrari,
particularly, had been legitimately replaced, following his
voluntary cessation of work, and that Respondent's
subsequent failure or refusal to reinstate him, pursuant to
request, should, therefore, be considered privileged; and (3)
that Taliaferro, despite his participation in certain prelimi-
nary discussions with a company representative, had not
really been given a tentative job offer, by any management
815
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spokesman properly authorized to make such commit-
ments, and that whatever communications Taliaferro
might have so construed, had in any event been withdrawn
or countermanded thereafter for business reasons, and not
because of his union membership.
B. Facts
1. Background
a. Respondent's business relationships
As previously noted, Floyd E. Crites, throughout the
period with which this case is concerned, personally
controlled and responsibly directed a corporate complex
primarily devoted to dredging sand from San Francisco
Bay and nearby waterways, selling materials derived from
such dredging operations, and delivering such materials to
Bay Area purchasers in waterborne barges or by truck.
Crites' dredging operations were conducted primarily by
West Coast Dredging; before January 1, 1975, that firm, so
the record suggests, had, inter alia, participated in several
joint venture dredging projects with another corporation,
Select Contractors, Inc., likewise designated as Select
Dredging Corporation within the transcript herein.
Save for several passing record references, wherein
witnesses designated Select Contractors as West Coast
Dredging's joint venturer, the present record warrants no
definitive determination with regard to that firm's regular
business relationship, if any, with Floyd Crites' several
subsidiary corporations. During certain recent labor
contract negotiations with a representative of Complainant
Union herein, which will be noted further within this
decision, Respondent H. C. Thomson's vice president and
general manager, Leo Turrin, described Select Contractors
as some "completely new outfit" which he, Turrin,
responsibly headed.
During this period, Crites' sand-hauling operations were
conducted through another corporation, River Sands, Inc.,
previously noted herein. Thereby sand dredged from San
Francisco Bay and nearby waterways was delivered to
various purchasers. The present record, though hardly
crystal clear, will support a determination, which I make,
that Respondent H. C. Thomson then "owned" the
particular tug with which River Sands hauled laden barges.
The record, though fragmentary, warrants a determination,
within my view, that Floyd Crites, through his corporate
holding company previously noted, had previously pur-
chased Respondent H. C. Thomson, sometime during
1973's latter months, or early during the following year.
However, sometime during 1975's first few months, Crites
determined, so I find, that his corporate subsidiary, River
Sands, would no longer be required to provide barge-
hauling services for his corporate complex; plans were
formulated, therefore, whereby Respondent H. C. Thom-
son would, itself, become "operational" with its tug, Yolo,
performing sand-hauling services, directly in Respondent's
corporate name. Sometime during 1975's summer months,
so the record shows, this changeover was finally effectuat-
ed.
b. Collective-bargaining history
Complainant Union's collective-bargaining relationship
with particular enterprises within Floyd Crites' corporate
complex began, so far as the present record shows, during
1972; sometime during that year, Complainant Union's
business representative, Chester Ferguson, negotiated a
contract with West Coast Dredging which covered certain
workers employed in connection with that firm's sand-
dredging business. The contract, so Ferguson credibly
testified, bore a July 1, 1974, termination date. Nothing
within the present record, however, would warrant a
determination with respect to its renewal or renegotiation.
Sometime during late 1973, or during the first few
months of the following year, as previously noted, Floyd
Crites, through his corporate alter ego, F. E. Crites, Inc.,
had purchased Respondent herein; thereby, Crites had
acquired direct managerial control with respect to Respon-
dent's tug, Yolo, with whose subsequent history we are now
concerned. Thereafter, during a restaurant conference,
while representatives of three labor organizations were
present, he (Crites) declared that he wanted to run a so-
called "union" sand-hauling business, with respect to
which he would utilize Respondent's marine equipment.
The record warrants a determination, which I make, that
Crites conferred then with Business Representative Fergu-
son of Complainant Union, Business Representative
Mayfield of Operating Engineers Local Union No. 3,
International Union of Operating Engineers, AFL-CIO,
and some Inland Boatmen's Union representative. The
present record, however, permits no definitive determina-
tion with respect to whether a contractual consensus
resulted. It shows merely that sometime during this period
two West Coast Dredging workers concededly known to
Crites as MEBA members, who had been covered by
Complainant Union's previously negotiated but now
terminated 1972-74 contract, were transferred to work
directly on Respondent's tugboat. While functioning as
tugboat operators responsible for Respondent's tug Yolo
during calendar 1974's last months, so far as the record
shows, neither man enjoyed collective-bargaining contract
coverage.
On February 3, 1975, Complainant Union's business
representative signed a so-called "construction" labor
agreement with Select Contractors, Inc., previously men-
tioned within this decision. That contract had been drafted
to cover certain workers, employed by that particular firm,
in connection with a San Francisco Bay dredging project
for which the U.S. Army Corps of Engineers was
responsible. The agreement had been "negotiated" directly
with Leo Turrin, previously known to Business Representa-
tive Ferguson as Floyd Crites' general manager and
designated representative. While bargaining in Select
Contractors' behalf, however, Turrin had, so his credible,
corroborated testimony herein shows, characterized him-
self as that particular firm's responsible head; he had
declared, categorically, that Floyd Crites held no "owner-
ship" interest so far as Select Contractors was concerned.
Consistently, he had himself signed Complainant Union's
proffered "construction" contract form, promptly follow-
ing its presentation.
816
H. C. THOMSON
2. Recent contract negotiations
a. Respondent's interim agreement
Shortly thereafter, on February 7 specifically, the
Complainant Union's business representative negotiated a
so-called "Interim Sand Hauling Agreement" with Turrin,
functioning in Respondent's behalf. That agreement,
pursuant to its terms, covered work done in connection
with "towing sand from one point to another" with no
application to work traditionally considered dredging
work, or work concerned with the disposal of dredging
spoils. This so-called "interim" contract, so I find, covered
both "operators" then working on Respondent H. C.
Thomson's tugboat. Despite their service, then, running the
tugboat Yolo which Respondent legally owned, these
operators were receiving their semimonthly paychecks
from River Sands, Inc., which was still Crites' designated
"operational" sand hauling firm. Management representa-
tives were, however, planning their subsequent transfer to
Respondent H. C. Thomson's payroll, formally, within a
period of several months. And the record does warrant a
determination, which I make, that Respondent H. C.
Thomson did sometime later take over operational respon-
sibility directly for River Sands' barge-hauling functions.
The contract in question was signed for Respondent H.
C. Thomson by Leo Turrin, functioning in his capacity as
Respondent's vice president and general manager. Inter
alia, it provided that "hourly rates of pay and contribution
rates" payable to Complainant Union's various fringe
benefit plans, for those workers who were covered, should
match those set forth in Complainant Union's so-called
Commercial Towing Agreement covering various San
Francisco Bay Firms. Working and general conditions for
the workers covered, however, were to match merely those
set forth within a contract previously negotiated with
Respondent by Operating Engineers, Local Union No. 3,
covering certain other workers concerned with barge
operations throughout Northern California, with a May 1,
1974, effective date.
Within their February 7 so-called "interim" contract,
Complainant Union and Respondent agreed, further, that
they would meet, again within 30 days "for the purpose of
ratifying a complete working agreement" covering Respon-
dent H. C. Thomson's projected sand-hauling operations.
b. Further negotiations
During the 30-day period which followed their February
7 contract's execution, Ferguson made several attempts to
communicate with Turrin; his various efforts to fix a date
for their next bargaining session, looking toward a full-
scale, long term contract, were unsuccessful. On or about
March 10, however, Turrin communicated finally with
Complainant Union's business representative. Within that
month they subsequently met for some three or four
negotiating sessions. No one else was present. The record,
however, warrants a determination, which I make, that
their various conferences produced no definitive contrac-
tual consensus.
While a witness, herein, Ferguson did claim that during
his several March 1975 discussions with Respondent's
general manager, firm agreements had been reached with
respect to nearly all of the matters which their projected
long term contract would cover; the sole matter which
remained unresolved, so Complainant Union's business
representative contended, was a contractual provision with
respect to wage rates payable for Saturday work. Testifying
in Respondent's behalf, however, Turrin declared, with
Crites' corroboration, that he had never been definitively
"authorized" to commit Respondent H. C. Thomson with
respect to whatever long term contractual proposals
Ferguson presented; that he had merely promised to
submit them for his superior's review; and that Ferguson
could not reasonably have construed his remarks as more
than a commitment to recommend Complainant Union's
various proposals for President Crites' favorable consider-
ation.
Complainant Union's business representative testified,
inter alia, that he had preliminarily questioned Turrin's
power to bind Respondent with respect to their tugboat
"operator" negotiations, but that Respondent's general
manager had told him Crites was "out of the picture" so far
as H. C. Thomson was concerned, and that he [Turrin]
could speak, authoritatively, for that firm. Replying, Turrin
conceded that he had, indeed, given Ferguson such
reasurances during their February 3 discussion, previously
noted herein, with regard to Select Contractors' so-called
"construction" labor contract, negotiated with Complain-
ant Union herein to cover the latter firm's prospective San
Francisco Bay dredging project; Respondent's general
manager declared, however, that he had never represented
himself as Respondent H. C. Thomson's responsible head,
either during his February 7 negotiations with Complainant
Union's business representative, or thereafter. The record
herein, which I have considered in totality, with due regard
for the witness-chair mannerisms and behavior of Business
Representative Ferguson, Crites and Respondent's general
manager, persuades me that H. C. Thomson's president
and sole stockholder [Crites] would hardly have been likely
to delegate plenary powers, with respect to that firm's long
term labor contract negotiations, directly to his general
manager; within my view, Turrin's testimony that he was
never specifically "authorized" to commit his principal.
and that during the negotiations now in question he never
represented himself as possessed of such powers, merits
credence.
The business representative's proposals, particularly with
reference to tugboat "operators" pay scales, had paralleled
those set forth within Complainant Union's current Bay
Area commercial towing contracts. Presented with Fergu-
son's demands, General Manager Turrin probably did
declare his willingness to convey the business representa-
tive's contract proposals to President Crites, his superior;
he may, conceivably, have declared his willingness to
convey those proposals with a favorable recommendation.
However, the present record, within my view will not
support a determination that Ferguson's contractual
proposals were "accepted" definitively, by Respondent's
general manager.
During their final March 1975 conference, Complainant
Union's business representative presented Turrin with a
complete contract proposal. Ferguson's prepared draft
817
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contained proposals, with respect to wages, hours, and
conditions of work, which would cover "all boat operators
employed in [H. C. Thomson's] sand hauling operations"
while functioning as a private carrier transporting its own
sand as a commercial commodity. With respect to hourly
wage rates, Complainant Union's proposal provided that
$8.74 would be payable, with an April 1, 1975, effective
date; and that $9.03 would be payable, effective June 1,
1975. These rates matched those set for tugboat "opera-
tors" covered by Complainant Union's current General
Towing Agreement for San Francisco Bay, which shortly
prior thereto had been negotiated and signed February 24,
1975, by several firms, with a February I effective date.
Ferguson's proffered draft, further, provided that boat
operator's basic hourly rates would be adjusted on January
1, 1976, and June I of that year so that they would continue
"identical" with those set forth within Complainant
Union's General Towing Agreement, previously noted.
Respondent's general manager declared, so Ferguson's
credible testimony shows, that he would take Complainant
Union's proposal back to President Crites; Turrin made it
clear however, so I find, that he was "working" for Crites,
and that the latter would make Respondent's final
determination.
c. The April 4 conference
General Manager Turrin conferred with his principal
subsequently, so his testimony shows, with regard to
Ferguson's draft proposal. They compared Complainant
Union's proposed terms with those set forth within the
1974-77 Barge Agreement, then in force, covering barge
loaders and bargemen, which Operating Engineers, Local
Union No. 3, had previously negotiated with various
covered firms. And they concluded, so their composite
testimony shows, that Business Representative Ferguson's
draft contract terms and Local 3's barge contract were not
sufficiently "close" to warrant Respondent's concurrence.
On Friday, April 4, during a late evening restaurant
conference, Crites and Turrin discussed Complainant
Union's proposal with Complainant Union's business
representative. Respondent's president, during this talk,
substantially rejected the business representative's prof-
fered draft.
While a witness, Ferguson declared that throughout their
negotiations he had consistently taken the position that
Respondent's sand-hauling operations should be consid-
ered "commercial towing" for contract purposes. General
Manager Turrin, however, had, so Ferguson conceded,
proffered contract proposals based upon and comparable
with those found in Local 3's Barge Agreement, previously
noted. According to Complainant Union's business repre-
sentative, his complete draft proposal had reflected a
substantial "amalgamation" compassing terms derived
from both Local 3's Barge Agreement, and Complainant
Union's general towing contract; Ferguson claimed there-
fore, that Crites' negative reaction, with respect thereto,
had taken him by surprise.
Complainant Union's business representative strongly
protested Crites' professed determination that their con-
tract should parallel Local 3's Barge Agreement complete-
ly; he noted, inter alia, that Respondent's proposal, taken
literally, would mandate a wage rate reduction, from $8.74
to $6.30 hourly, for H. C. Thomson's tugboat operators,
who were then being paid, consistently with the terms of
their so-called "interim" contract, the current rates set
forth within Complainant Union's commercial towing
agreement.
There was a discussion, further, with respect to wage
rates which would be payable for Saturday work. Com-
plainant Union had previously proposed that time-and-a-
half rates should be considered payable for hours worked
beyond 8 hours daily, and/or for hours worked beyond 40
within a given week, while work performed after Saturday
noon, on Sundays, or during recognized holidays should be
considered compensable at twice the covered "operator's"
basic hourly rate. Respondent's president had, however,
declared his willingness, merely, to provide time-and-a-half
rate overtime compensation for work beyond 40 hours
weekly, with basic straight time hourly rates or time-and-a-
half rates alternatively payable for Sunday or holiday
work, with the particular rate dependent upon certain
specified circumstances. However, no consensus, with
regard to these divergent overtime time pay proposals, was
reached. With respect to President Crites' reaction, follow-
ing his [Ferguson's] rejection of Respondent's contract
proposals, the latter testified, credibly, that:
He, [Crites] told me, that MEBA wasn't the only
union that he could deal with. As a matter of fact, with
the employment situation the way it was, he really
didn't have to do business with any union, he said
.... To the best of my recollection, what I said was:
"You have a collective-bargaining relationship, and
you aren't going to walk away from it..." He just
repeated, "You've got my offer."
Crites, so the record shows, thereupon directed his
subordinate, Turrin, to prepare a complete counterpropo-
sal, which would "follow the lines" defined within Local
No. 3's barge contract previously noted. Respondent's
general manager was directed to prepare such a proposal
on Saturday, April 5, so that Ferguson could present it, for
the consideration of Complainant Union's members,
during a membership meeting scheduled for the following
day. Business Representative Ferguson promised that
Respondent's proposal would be considered, but forcast its
rejection. Upon this note, negotiations were concluded.
d. Respondent's proposal rejected
On Sunday, April 6, Respondent's general manager met
Ferguson, pursuant to prearrangement, while the latter was
en route to Complainant Union's hall; the business
representative was given a copy of Respondent's complete
contract proposal. Ferguson and Turrin reached a consen-
sual "understanding" that Respondent's proposal would be
submitted to Complainant Union's membership for possi-
ble ratification, and that H. C. Thomson would be given
written notice with regard to their ratification vote's result.
With regard to tugboat "operator's" wage rates, through-
out a projected 21-month contract term, Respondent's
proposal paralleled precisely the rate progression set for
"barge loaders" within Operating Engineers Local Union
818
H. C. THOMSON
No. 3's Barge Agreement, previously noted herein. Like-
wise, with respect to Saturday, Sunday, and holiday
overtime rates, Respondent's proposal recapitulated the
provisions found in Local 3's contract. Complainant
Union's membership, so the record shows, rejected Re-
spondent's contract proposal. And shortly thereafter,
within a letter dated April 8, Business Representative
Ferguson notified Respondent H. C. Thomson, d/b/a
River Sands, that its April 6 proposal had been rejected,
following a membership vote.
e. Respondent's contacts with Masters, Mates and
Pilots
Following his receipt of Complainant Union's April 8
letter, Respondent's president concededly concluded,
within his own mind, that MEBA had "terminated" their
contract negotiations. Further, he concluded, so his
testimony shows, that since the tugboat Yolos two
"operators" with MEBA membership were not currently
manning Respondent's vessel, for reasons which will be
discussed subsequently within this decision, their labor
organization had forfeited whatever recognition rights it
might properly have been entitled to claim previously.
President Crites determined, therefore, that he would not
seek further negotiations with Complainant Union herein.
Concededly, he directed Respondent's general manager to
communicate, instead, with Captain Don Fuller of the
International Organization of Masters, Mates, and Pilots,
to determine whether that labor organization had "people"
available who could staff Respondent's tugboat. While a
witness, Crites testified that Captain Fuller had presum-
ably sometime during the prior 30-day term of Respon-
dent's so-called "interim" contract with Complainant
Union herein notifed him that Masters, Mates, and Pilots
had "licensed" members who could man Bay Area vessels.
Pursuant to his superior's directive, Respondent's general
manager telephoned Fuller, Masters, Mates, and Pilots'
business representative. He [Turrin] reported Respondent's
desire to procure tugboat operators; Fuller declared that
his organization could supply them, suggesting further that
"later on. down the road," they could negotiate a
collective-bargaining contract.
Shortly thereafter, General Manager Turrin and Captain
Fuller met; their discussion produced a verbal consensus
that Masters, Mates, and Pilots would supply Respondent
with tugboat "operators" whose wages and fringe benefits
would "follow the lines" defined within Operating Engi-
neers Union, Local 3's Barge Agreement, previously noted.
No correspondence memorializing this consensus has ever
been drafted or delivered, however. Respondent's manage-
ment representatives have never, so far, been requested to
sign a written collective-bargaining contract. While a
witness, Respondent's general manager testified that when
his "verbal understanding" with Captain Fuller was
reached, the latter knew MEBA men had manned H. C.
Thomson's tugboat before April 6, but that Respondent's
collective-bargaining negotiations with Complainant
Union, before that date, had failed to produce a contrac-
tual consensus. The record, further, warrants a determina-
tion, which I make, that sometime during this period
Respondent's management did send Masters, Mates, and
Pilots' representative a copy of their draft contract
proposal, which had previously been submitted to Com-
plainant Union herein. No contract consistent with that
proposal was ever signed, however.
Both Respondent's president and General Manager
Turrin testified that, consistently with their "verbal
understanding" described herein, two tugboat operators
whom Masters, Mates, and Pilots referred subsequently
were hired; they were paid hourly rates "somewhere near"
those which Local No. 3's barge contract provided for
barge loaders. Respondent's spokesmen claimed, however,
that they could not recall their firm's defined wage rates for
such personnel specifically.
Sometime within "one or two" weeks following Com-
plainant Union's April 6 rejection of Respondent's con-
tract proposal, the firm's tugboat, which had not been
running, was reactivated. The present record, though
hardly a model of clarity, warrants a determination, which
I make, that both "operators" referred by Masters, Mates,
and Pilots pursuant to Captain Fuller's commitment -
Keith Miller and Tom Vilas - thereupon manned the
vessel concurrently and/or successively.
f. Subsequent developments
Three or 4 weeks after Complainant Union's April 6
membership meeting, during which Respondent's draft
contract proposal had been rejected, that labor organiza-
tion's business representative called upon General Manag-
er Turrin; they met within the latter's "trailer" office,
located in Pittsburg, California. Ferguson suggested a
resumption of negotiations. His testimony with regard to
their conversation, proffered for the record without
significant contradiction, reads as follows:
I told him that we had better get back to negotiating the
agreement; and I tried to set a date. I think what [I]
said was, that this thing was getting ridiculous. So, I
said, "Let's get together and have a meeting." . . .
Well, I don't remember precisely what he said . . . He
said something about Floyd [Crites] either had, or was
going to enter into an agreement with the Masters,
Mates and Pilots. That that was his [Crites'] thinking.
But he [Turrin] said that he would get back to me -
that he would call me . . . I never heard from him.
[Interpolations provided to promote clarity.]
While a witness, Turrin generally corroborated Complain-
ant Union's business representative, so I find, save in
certain minor respects. He declared that, following Com-
plainant Union's April 6 rejection of Respondent draft
contract proposal, President Crites and he concluded that
Complainant Union was essentially disregarding a prior
commitment, which they thought Ferguson had made, to
frame a contractual consensus consistent with Operating
Engineers, Local Union No. 3's barge contract. Conse-
quently, so General Manager Turrin testified, Respon-
dent's management representatives determined that they
"did not want to negotiate" further with Complainant
Union's representative. Thus, when Ferguson visited him,
Respondent's general manager, so his testimony shows,
specifically rejected the business representative's sugges-
819
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion that negotiations should resume; he declared that,
since Complainant Union had rejected his firm's draft
contract proposal, Respondent had initiated "talks" with
another labor organization. Ferguson was told, so Turrin
presently claims, that his suggestion for a resumption of
negotiations had come too late.
Shortly thereafter, presumably on May 10, Respondent
H. C. Thomson's tugboat sank; the vessel was not refloated
and reactivated, so the record suggests, until sometime late
in June, when it resumed service.
President Crites' testimony, however, warrants a determi-
nation, which I make, that Respondent's tugboat has not
really been utilized regularly since its reactivation; some of
Respondent's continued barge-hauling operations have
been contracted out to so-called "independent" tugboat
firms. Further, while a witness, Crites claimed without
contradiction that his firm's tugboat has not been "operat-
ing" since sometime in late November 1975, 2 months
before the formal Board hearing with respect to the present
case convened,
3. The termination of Ferrari
With contract negotiations - between Complainant
Union's business representative and Respondent H. C.
Thomson's spokesmen - terminated, General Counsel's
representative requests consideration for a contention that,
following President Crites' determination to staff Respon-
dent's tugboat with "operators" recruited through Masters,
Mates and Pilots' hall, Petter J. Ferrari, previously in
Respondent's hire, was denied reinstatement because of
this MEBA membership. Proper determinations, with
regard to this contention, will require a retrospective
review, concerned with certain developments which pre-
ceded Complainant Union's April 6 rejection of Respon-
dent H. C. Thomson's contract proposal, previously noted.
a. Ferrari's work history
Ferrari began work aboard Respondent's tugboat, Yolo,
sometime in January 1975; together with a fellow operator,
Elwood Wilkinson, he [Ferrari j manned the vessel, hauling
barges laden with sand, for some 3 months. Though they
serviced a vessel which Respondent H. C. Thomson owned,
they were compensated, so the record shows, with checks
drawn on River Sands' payroll. Before his hire, for work on
Respondent's tugboat, Ferrari had worked presumably in a
similar capacity for West Coast Dredging; while in that
firm's employ, his wages, hours, and conditions of work
had been governed by a previously negotiated MEBA
contract.
The record, with regard to Ferrari's January 1975 hire for
work on Respondent's tugboat, merits characterization as
less than clear. With due regard for probabilities, however,
I am satisified that Respondent's management representa-
tives first suggested his shift from West Coast Dredging to
H. C. Thomson's vessel, where he would join Wilkinson,
who had previously been similarly transferred. Prompted
by Respondent's hiring offer, Ferrari had voluntarily
procured a dispatch slip from Complainant Union's hall,
referring him to H. C. Thomson, despite the fact that
MEBA then had no formal contractual relationship with
Respondent herein. When previously transferred from
West Coast Dredging for service on Respondent's tugboat,
sometime during the latter part of calendar 1974 presum-
ably, Ferrari's companion, Wilkinson, had likewise volun-
tarily procured a formal referral from Complainant
Union's dispatcher. Testifying herein, Respondent's presi-
dent and general manager have both conceded their
awareness that, during the 3-month period which followed
Ferrari's shift from West Coast Dredging to Respondent
H. C. Thomson's hire, both "operators" who were then
manning their firm's tugboat held MEBA membership.
b. Complainant Union's March 1975 work stoppage
Throughout the 3-month period during which Wilkinson
and Ferrari manned Respondent's tugboat, Crites' sand-
hauling operations were being conducted with three- or
four-man crews. There were, of course, two licensed
tugboat "operators" responsible for handling the vessel.
Concurrently, River Sands, previously designated herein as
Crites' so-called "operational" firm, had workers specifical-
ly designated to handle sand barges, and to provide certain
incidental services; during the period with which we are
now concerned, these men were represented by Operating
Engineers, Local Union No. 3, with their wages, hours, and
conditions of work set pursuant to that organization's
barge contract. Respondent's witnesses testified that a
single "barge loader" worked with their tugboat's two-man
crew. However, Ferrari, while a witness, mentioned a
second barge worker whom he designated a leverman. For
present purposes, the testimonial discrepancy which Fer-
rari's passing comment generated need not be resolved.
With respect to licensed tugboat personnel, generally, U.S.
Coast Guard regulations currently provided, so the record
herein shows, that particular "operators" may not be
required by their employers to work more than 12-hour
shifts daily. Respondent's two-man licensed "operator"
complement, therefore, was, so I find, maintained to
provide personnel, qualified to conduct tugboat operations
without interruption, throughout barge-hauling trips which
frequently required more than twelve hours for their
completion.
Sometime within March 1975's last 15 days, on a date
which no witness herein could designate precisely for the
record, both Wilkinson and Ferrari, following a directive
which Complainant Union's business representative con-
cededly gave them, left Crites' Port Chicago, California,
sand dredging grounds, with their tugboat, hauling a
partially laden barge; they returned to River Sands'
Richmond, California, dock, where they left their vessel.
Thereafter, so the record shows, Complainant Union
picketed the Richmond dock, together with some of Crites'
other facilities, sporadically. Between the first day of
Complainant Union's work stoppage and Sunday, April 6,
when that organization's membership rejected Respondent
H. C. Thomson's draft contract proposal, the firm's
tugboat was, so the record shows, continuously out of
service.
The concatenation of circumstances which concededly
persuaded Business Represenative Ferguson to direct a
work stoppage, calculated to halt Respondent's tugboat
operations, merits careful consideration. Unfortunately,
820
H. C. THOMSON
General Counsel's presentation with respect thereto,
proffered through Ferrari's testimony primarily, can hardly
be considered crystal clear.
While a witness, Business Representative Ferguson
testified that Wilkinson and Ferrari, presumably while
their tugboat was berthed at Crites' Port Chicago sand-
dredging grounds, had telephoned Complainant Union's
headquarters through their "ship-to-shore" radio telephone
facilities to report a complaint. With respect thereto, they
had requested instructions; Complainant Union's business
representative had concededly directed them to return to
River Sands' Richmond dock, where they were to "tie up"
their vessel.
Ferrari, when questioned with respect to these develop-
ments, conceded that he had indeed telephoned Complain-
ant Union's business representative. When queried further
with regard to his reason for doing so the tugboat operator
testified that:
One thing, we wanted to clarify if the contract [which
Business Representative Ferguson and Respondent's
general manager were then discussing] was settled; and
another thing was, that they wanted one of us boat
operators to be aboard the tug Yolo. with an Operating
Engineer and a licensed man to run the boat to and
from the job.
Q. [Ms. Rosen] Who told you that they wanted just
one of you to work on the boat with the Operating
Engineer?
A. Mr. Kuzak [River Sands' salesman and Crites'
putative surrogate] did.
Q. Explain to me, if you had those two men on the
tugboat, who is operating the boat, driving the boat,
when there are just two men? Is one man doing it 24
hours a day?
A. No. It has got to be two tugboat operators there
. . . You cannot operate a tugboat for more than
twelve hours; and then you are supposed to get twelve
hours of sleep, after your eight hours in the wheel-
house.
Q. Well, if you were sleeping, who would have been
running the tugboat - if you had followed Mr.
Kuzak's request?
A. A non-operator. An unlicensed man would have
been operating the boat ...
Q. If you are a boat operator, and you permit an
unlicensed man to run that boat, can you be fined by
the U.S. Coast Guard?
A. You can be fined, yes - and your license can be
pulled.
Before he left the witness stand, Ferrari was questioned
further, particularly with regard to the specific tugboat
"manning" problem affecting licensed personnel which
had prompted his "ship-to-shore" communication with
Complainant Union's business representative. He testified
as follows:
JUDGE MILLER: How had you discovered, or heard,
or learned that you were supposed to be operating the
boat with just one [licensed ] man?
THE WITNESS: When we left there [Richmond] that is
what Kuzak said - that Woodie [Wilkinson] and I
were to be split up .... We discussed it, in the boat,
that we would not operate the boat with one unlicensed
man and one licensed man.
JUDGE MILLER: How had you and Mr. Wilkinson
learned that you were to be split up?
THE WITNESS: That was when we left Richmond -
when we got our [barge loading] orders from Mr.
Kuzak . . . When we were tied up to the Richmond
yard . . . Mr. Kuzak gave us the [barge loading]
orders, and said that Mr. Crites wanted this boat to be
operated with one boat operator and one non-licensed
man.
Q. [Mr. Brotsky] You and Mr. Wilkinson were in
the Richmond yard, waiting to go out on a trip to Port
Chicago - is that correct?
A. Yes.
Q. Was it at that time, that Kuzak told you that
Mr. Crites wanted only one, rather than two, operators
on the boat?
A. Yes - only one licensed operator at a time.
Q. And he told you that, before you started on that
trip?
A. Yes.
Q. So he didn't tell you that you had to make that
particular trip with only one operator?
A. No, he didn't. ...
Q. Did both of you still go out on the trip?
A. Yes, we both left together . . .
Q. All you knew, at that time when he talked to
you, was that you were to take the barge, the tug, up to
Port Chicago, and take on a load of sand? Is that right?
A. Yes.
Q. Then, when you got to Port Chicago, were you
going to radio the company and Kuzak, and find out
where they wanted you to take that load?
A. Yes.
Q. Now, wherever you went - whether it was to be
Redwood City, or back to Richmond, or to Oakland,
would the full trip from [Richmond] up to Port
Chicago, and back down to any one of those places,
have taken more than twelve hours? ...
A. Yes, it would ....
Q. So it was clear to you, when he told you that he
wanted just one operator, that he was asking you to
have one operator work for more than 12 consecutive
hours?
A. Yes, that's right.
Q. And it was on that trip [to Port Chicago], in the
course in that trip, that you radioed to Mr. Ferguson?
A. Yes.
Q. You told him, in effect: "Kuzak has told us that
we can only have one licensed operator on these trips,
and not two?" Is that correct?
A. Yes....
Q. And he told you what?
A. Mr. Ferguson says, "Pick her up and take her
back to Richmond." "Now!" he says . . . And he said
821
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Tie her up." [Interpolations provided to promote
clarity.]
Shortly thereafter, so Ferrari's credible testimony shows,
Complainant Union's picket line was established. The
record, however, warrants a determination, which I make,
that Complainant Union's pickets did not patrol continu-
ously; nor did they confine their picketing to Crites'
Richmond facility, where Respondent's tugboat had been
docked. Credible testimony herein proffered without
contradiction suggests that several facilities utilized in
connection with Crites' various business operations were
picketed sporadically. I so find.
While testifying herein, Respondent's general manager
and Michael Kuzak, River Sands' salesmen, proffered no
recitals specifically calculated to controvert Ferrari's
testimonial recollections, particularly with reference to
Kuzak's purported comments, which had stimulated
Respondent's tugboat operators to make their crucial
"ship-to-shore" telephone call. Their testimony, however,
does suggest that Ferrari and Wilkinson may have
misconstrued Kuzak's remarks. With respect thereto,
General Manager Turrin testified as follows:
Q. [Mr. Brotskyj Didn't there come a time, in early
April [sic] of 1975 when a decision was made by the
company to operate with just one operator - rather
than with two?
A. Yes: For certain parts of our operation. But I
would have to explain that . . . Well, under the new
licensing law, they require that a tow boat operator
cannot have more than 12 continuous hours at the
wheel. But after the 12 continuous hours, a lesser-
licensed person could operate the boat; as long as the
other licensed person was available, in case of need -
either asleep or somewhere else on board. Our opera-
tion wasn't quite that way; but we did have the facility
to run men out to our digging ground, so that no man
would have to remain on the boat for more than 12
hours - and then, we would not have to have two fully
licensed men on the boat, at the same time. There's no
law that says that we have to have two boat operators
on the tugboat at the same time. It just says that no
tow-boat operator will operate a boat for more than
twelve continuous hours ...
Q. Isn't it true, that you had Mr. Kuzak tell the two
boat operators that the company was proposing to
make this change in its operations?
A. I'm quite sure we did, yes.
Consistently with Turrin's testimony, River Sands' sales-
man, when summoned as Respondent's witness, proffered
a version of his conversation with Wilkinson and Ferrari
which could conceivably warrant a determination that they
misunderstood him. Specifically, Kuzak recalled that when
he queried Wilkinson and Ferrari with respect to their
reason for bringing Respondent's tugboat with a partially
loaded barge back to River Sands' Richmond dock they
mentioned the contract negotiations and Respondent's
projected "one man" proposal. With respect thereto, River
Sands' salesman testified that:
I tried to explain to them what the caucus at River
Sands had been thinking about, in regard to the
switching on and off. But I don't think they understood
or realized what we were talking about. I think that at
that time they thought that the one guy would go from
Richmond to the digging grounds, back to Richmond,
and would spend more than twelve hours at the wheel.
But the idea we had there was to have three operators,
maybe even four operators - and switch'em off.
Because the overtime was becoming a major problem
for us.
Q. [Mr. Fujinaga] So, in other words, it wasn't the
design or the plan, of River Sands or of H. C. Thomson,
to violate the twelve-hour rule, if I may call it that? But
rather, it was a plan so that you could work out your
labor scheduling, so that you wouldn't have to have
somebody in violation of that 12-hour rule? Is that
correct?
A. Right.
Q. [Mr. Brotsky] The day that the Richmond
occurrence took place, is it not true that before Ferrari
and Wilkinson went out and started on the trip, that
you told them that the company was going to end the
practice of having two operators on the boat at one
time? Didn't you tell them that?
A. I told [them] that that was what we were
thinking about doing, and that that was what I was in
charge of trying to work out, so as to have one operator
on the boat at one time. . . I can't remember now what
phase it was in; but I am sure it wasn't in the form of an
order. I was probably just in the form of telling them
what our ideas were, about the boat.
This record, which I have reviewed with due regard for
Ferrari's somewhat confused testimonial recitals and
demonstrably poor recollection, persuades me that Re-
spondent's two tugboat operators must have misconstrued
Kuzak's comments. Wilkinson and Ferrari were not, so I
find, told that Respondent's management would reduce
their vessel's licensed "operator" complement, so that one
licensed man would be required to handle the vessel for
more than 12 continuous hours; rather, they were told that
their employer proposed to draft a manning schedule
pursuant to which a single operator, designated to handle
the tugboat would be replaced when his 12-hour stint had
been completed with a relief operator ferried to the tugboat
for that purpose wherever it might be located. Further,
Respondent's spokesman, so I find, never told Wilkinson
or Ferrari that Respondent's projected program would
become operative forthwith, either for their current trip or
some designated future trip; rather, Respondent's tugboat
operators were told merely that new manning schedules
whereby a single tugboat operator would be "replaced"
whenever necessary with a relief man were being consid-
ered.
When Wilkinson and Ferrari thereafter concededly
struck their vessel, pursuant to Business Representative
Ferguson's directive, the latter participated in Complainant
Union's picketing; the record, however, warrants a deter-
822
H. C. THOMSON
mination, which I make, that his participation was limited.
Wilkinson, so far as the record shows, did little or no
picketing; shortly after Respondent's tugboat had been
secured at River Sands' Richmond dock, he [Wilkinson]
declared that he would resign. Within a formal "Notice of
Termination" which Respondent's general manager had
signed, proffered for the record by General Counsel's
representative, Wilkinson was reported as "terminated at
own request" on April 4; Ferrari's testimony, proffered
herein without contradiction, will within my view support a
determination, which I make, that his fellow operator
found "regular and substantially equivalent" work shortly
thereafter.
c. Respondent's resumption of tugboat operations
From the date on which Wilkinson and Ferrari struck
Respondent's tugboat, whenever that was, until Sunday,
April 6, the Yolo was concededly not in service. Though
Complainant Union's pickets may not have patrolled River
Sands' Richmond dock facility regularly, MEBA's mem-
bers, so I find, never boarded, serviced, or manned the
struck vessel.
Thereafter, throughout a vaguely defined "one or two"
week period which followed April 6, the situation contin-
ued without change. Complainant Union's picketing
though sporadic, continued; Respondent's tugboat re-
mained inoperative regardless.
During this period, however, President Crites and
Respondent's general manager negotiated their "verbal
understanding" with Masters, Mates, and Pilots' business
representative, previously noted. Then, sometime in mid-
April, Respondent's management hired two tugboat "oper-
ators" whom Captain Fuller had referred. Thus manned,
Respondent's tugboat was reactivated.
d. Ferrari's request for reassignment
Sometime in April Ferrari discovered that Respondent's
tugboat had resumed operation. He telephoned River
Sands, spoke with Kuzak, and queried him with respect to
"what the score" was. The tugboat operator's credible
testimony, with regard to their conversation, reads as
follows:
He says, "The boat is operating" ... I said, "Then I
am laid off'?" He says, "No, you are not." "Well, I am
not working," I says. "But I never got a discharge." I
says, "I can't draw my unemployment pay, because I
never got a discharge slip." "Well, you are not
discharged," he says. But the Yolo was operating.
Kuzak told Ferrari, so the latter's testimony shows, that
Respondent had a new tugboat crew. Further, Respon-
dent's general manager, while a witness, conceded that it
was "very possible" he had likewise told Ferrari sometime
during this period, that he could reapply for work, but that
Respondent had no MEBA contract, and that should he
come to work he would "have to join" the Masters, Mates,
and Pilots' organization.
4. The refusal to hire Taliaferro
a. General Counsel's presentation
Early in May 1975, presumably on May 5, one Anthony
Taliaferro received a telephone call, so he testified, from
Michael Kuzak; River Sands' salesman reported that
Respondent was looking for a boat operator. He asked if
Taliaferro was looking for work; the latter replied affirma-
tively. Previously, sometime in 1973, Taliaferro had spoken
with General Manager Turrin regarding work on River
Sands' barge operation; he had been told that River Sands
had no openings. The record, however, warrants a
determination, which I make, that River Sands had
retained a record of Taliaferro's contact. Kuzak promptly
asked Taliaferro whether he could visit Pittsburg, Califor-
nia, that very afternoon. Taliaferro said he could; he
commented, further, that while on his way he would stop in
San Francisco and clear Kuzak's job offer with his union.
Kuzak asked which union Taliaferro meant; the latter
named Complainant Union herein. At that point, so
Taliaferro testified, their conversation "changed in tone"
immediately; Kuzak declared that he would be busy that
afternoon, and would not be "able to see" the tugboat
operator. When Taliaferro asked, however, whether they
could meet the following afternoon, Kuzak replied affirma-
tively. The tugboat operator requested River Sands'
salesman to designate a convenient time; Kuzak specified
3:30 p.m. for their next day's conference.
The next day, May 6 presumably, when he reached
Respondent's yard, Taliaferro was told that Kuzak was not
there and that no one knew when he might return. The
tugboat operator decided to wait. Approximately I hour
later, Kuzak telephoned; Taliaferro was notified and spoke
with him. While a witness, Taliaferro recapitulated their
conversation as follows:
I asked him if the job was still open; because, with him
not being there, I wasn't sure. He said, Yes, that it was.
So I asked him what the job paid; and he told me ...
He said that it was between $6.00 and $6.50 an hour -
he didn't know exactly. I think I then asked him further
details about the job, and he told me that it was on the
tug Yolo - and that it was four days on, and four days
off. I indicated that that sounded fine to me. He then
asked me if I was a member of the Masters, Mates and
Pilots; and I said No. And he said that one [would have
to be a member of become a member] of the Masters,
Mates and Pilots in order to have the job. I asked him if
I could take the job without joining it, and he said, No
. . .Then I mentioned that I really did not want to join
another union; but I didn't rule it out. I believe then, in
our discussion, he asked me if I would be willing to
"ride the boat" to see if I liked it - and, I guess, for
them to see if they wanted to hire me. I said, "Fine!"
However, Taliaferro, so his testimony shows, never heard
from Kuzak or any other H. C. Thomson spokesman,
thereafter. He has never been on Respondent's tugboat.
823
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Respondent's defensive presentation
While a witness, General Manager Turrin claimed that,
during this period, Respondent had not been seeking
tugboat operators, either on May 5, or thereafter. Kuzak
conceded, however, that he had himself communicated
with Taliaferro. When queried with regard to his contact's
background and consequences, River Sands' salesman
testified as follows:
. . . [At] that time, I was asked by Mr. Crites to try
and work out a viable solution, and present it to him,
on a program for switching people from River Sands in
Pittsburg to the barge, so that at no time would a
boatman be on the tugboat longer then twelve hours.
So at that time I called - I remember now, calling Mr.
Taliaferro . . . And I set up a meeting with him, to
discuss what we were looking for. I had been told to
interview him, and see if he would be interested in the
job . . . in the conversation, I was telling him basically
what we do, and what the boat was like. This was on
the phone. And he said, "Can I come out this
afternoon?" . . . And I can't say, for sure, whether I
said No, or Yes. But it was mentioned, by him, that he
wanted to go by the Union hall. I then asked him what
union he belonged to; and he said, the MEBA . . .I
can't remember verbatim [what I said to him] it was
almost a year ago. But I imagine that what I said would
probably be along the lines that we had already gone
through negotiations with the MEBA and that we are
now in negotiations, or in agreement, with the Masters,
Mates and Pilots . . .
Kuzak was then queried specifically with respect to
whether Taliaferro had been told that he would have to
join the last named organization, in order to work on
Respondent's tugboat. River Sands' salesman conceded
that he did not know "for sure" because of the time lapse
since their conversation. He declared, however, that:
I certainly doubt that I said that. Because, in the
first place, I have not the authority to tell anybody that
they have to join anything. Nor do I have the bluntness
to say it. I don't think I was ever that blunt . . .I
imagine I would have said . . . something like: "River
Sands, or H. C. Thomson, is now involved in negotia-
tions with the Masters, Mates and Pilots. And if you
did come to work with us, and if we get a contract with
them, the Masters, Mates and Pilots would probably
expect you to join their union."
When queried further, Kuzak testified that suggestions
looking toward a prospective modification of Respondent's
tugboat manning schedule had been propounded during a
so-called management-sponsored "caucus" while he, Presi-
dent Crites and General Manager Turrin were present; that
he (Kuzak) had been directed to determine whether a
revised manning schedule would be possible, and how it
could best be done; that while pursuing this directive from
Respondent's management, thereby discharging the partic-
ular task which he had been "authorized" to perform, he
had telephoned Taliaferro; and that the tugboat operator
had been told he (Kuzak) wished to discuss the "feasibili-
ty" of working him (Taliaferro) into a job. River Sands'
salesman testimonially conceded his knowledge, during
this period, that Respondent's contract negotiations with
Complainant Union had broken down; that Masters,
Mates, and Pilots had, thereupon, provided Respondent
with two tugboat operators; and that these operators were
currently manning H. C. Thomson's vessel. Thus, Kuzak's
testimony shows he told Taliaferro consistently with his
knowledge that Respondent had tried to negotiate a
contract with Complainant Union, without success; how-
ever, he denied telling the tugboat operator that a position
with Respondent would have to be procured through a
Masters, Mates, and Pilots referral. River Sands' salesman
could not recall whether he had mentioned Respondent's
proposed work schedule for a new tugboat operator, or
whether he had mentioned Respondent's projected pay
scale. According to Kuzak, Taliaferro was told that
President Crites liked to have prospective tugboat opera-
tors make one trip aboard Respondent's tugboat, "to see if
they liked it." He could not, however, recall a commitment
to telephone Taliaferro the next morning so that his
(Taliaferro's) trial run could be arranged.
Finally, River Sands' salesman reported his "thought"
that he had told President Crites he had contacted a
prospect, but that respondent's president had decided he
would continue the two-man crew arrangement which H.
C. Thomson then maintained. Concededly, however,
Kuzak never telephoned Taliaferro with such a message.
c. Credibility determination
Upon this record, Kuzak's testimony that Respondent's
management had specifically "authorized" him to develop
a program whereby H. C. Thomson's tugboat manning
schedules could be modified for cost reduction purposes
merits credence. River Sands' salesman so testified without
challenge or contradiction.
While a witness, General Manager Turrin did claim that
during the May 5-6 period now in question his firm did not
"need" more tugboat operators. He proffered no denial,
however, with respect to record testimony which persua-
sively suggests that President Crites, during this period,
wanted to reduce Respondent's costs for overtime worked
by tugboat crew members.
However, confronted with the somewhat divergent
testimony which Kuzak and Taliaferro proffered, with
regard to the substance of their several conversations, I
credit Taliaferro's recital rather than the less-than-positive
recollections of Respondent's witness. River Sands' sales-
man knew that Respondent's contract negotiations with
Complainant Union had broken down; further, he knew
that Respondent's tugboat had, recently, been reactivated
and staffed with Master, Mates, and Pilots referrals.
Confronted with Taliaferro's testimony that he [Taliaferro]
had been told he would have to join Masters, Mates, and
Pilots, to work on Respondent's tugboat, Kuzak could not
recall his remarks precisely; he testified with commendable
candor that the "doubted" he had made such a blunt
statement, that he did not "think" he had done so, and that
he "imagined" he had "probably" volunteered some less
positive statements. Such tentative testimony, within my
824
H. C. THOMSON
view, normally reflects a process of rationalization, bot-
tomed upon afterthought primarily, rather than firm
recollections or conviction. Taliaferro's contradictory
testimony, with regard to their several conversations,
merits Board credence, within my view.
C. Conclusions
1. Respondent's withdrawal of recognition
Within her brief, General Counsel's representative points
to Respondent's concession that when Complainant Union
reported that the firm's contract proposal had been
rejected H. C. Thomson's management representatives
promptly contacted a rival union which agreed to furnish
"operators" qualified to man their tugboat. Further,
General Counsel notes Respondent's concession that when
Business Representative Ferguson subsequently tried to
resume negotiations he was told that his belated request
would not be honored, and that H. C. Thomson's
management would no longer negotiate with his organiza-
tion.
With matters in this posture, General Counsel contends
that Complainant Union's rejection of Respondent's draft
contract proposal provided no sufficient ground for
Respondent's repudiation of their collective-bargaining
relationship. Thus, Respondent's refusal to resume negotia-
tions, sometime following Business Representative Fergu-
son's April 8 letter, plus the firm's hasty "recognition"
granted a rival union, should be considered, so General
Counsel contends, conduct statutorily proscribed.
Within my view, Board determination with regard to
these contentions must begin, however, with a review of
Respondent H. C. Thomson's situation when President
Crites and General Manager Turrin rejected Business
Representative Ferguson's request for continued negotia-
tions. Respondent's tugboat had previously been struck.
Between a date never specified within March 1975's last 15
days, and some other date within the 2-week period which
followed Complainant Union's April 6 rejection of Re-
spondent's contract proposal, the firm's vessel, so far as the
record shows, was never in service.
During the hearing, Complainant Union's counsel
sought to develop testimony that Respondent's tugboat
had been manned sporadically during this period. When
queried in this connection, however, Ferrari several times
conceded failures of recollection. The record considered in
totality will not warrant a determination, within my view,
that Respondent's tugboat made any trips during the
period now in question.
With matters in this posture, we really confront a
question significantly divergent from General Counsel's
formulation: Was Respondent H. C. Thomson's refusal to
resume contract negotiations, with Complainant Union
herein, privileged because the firm's two tugboat "opera-
tors" had, pursuant to their business representative's
direction, generated a work stoppage which had resulted in
their subsequent replacement? This question must now be
considered.
General Counsel's representative proffers no characteri-
zations, herein, with respect to Complainant Union's strike.
Upon careful consideration, however, I am persuaded that,
since Respondent's tugboat was never "tied up" within the
firms' Richmond facility because Complainant Union,
thereby, planned to protest conduct, chargeable to Respon-
dent's management, which could properly have been
considered unfair labor practices, the work stoppage which
resulted cannot legitimately be designated a so-called
"unfair labor practice" strike. My conclusion, thus baldly
stated, rests upon several grounds.
First: Ferrari did testify, herein, that Wilkinson and he
telephoned Complainant Union's business representative,
presumably from Respondent's Port Chicago digging
grounds, because their contract had not yet been settled.
However, throughout March 1975 negotiations between
Business Representative Ferguson and Respondent's gen-
eral manager had been, and were still in progress. While a
witness, Ferguson claimed that whenever he directed a
work stoppage that stoppage was calculated to "induce"
bargaining. However, nothing within the present record
would warrant a determination that during March 1975
specifically any collective-bargaining impasse had devel-
oped, or that General Manager Turrin was, then, consid-
ered to be bargaining in bad faith. Since the parties'
contract negotiations had not then reached deadlock, no
conclusion would be justified that Ferrari and Wilkinson
were directed to strike Respondent's tugboat because their
employer's representative was then refusing to bargain.
Second: The present record considered in totality will
not, within my view, support a determination that Com-
plainant Union's members were directed to strike Respon-
dent's tugboat because Respondent's management had
significantly modified their working conditions unilaterally
without consulting Complainant Union, their recognized
bargaining representative. For present purposes, we may
presume, arguendo, that had Respondent's management
representatives really effectuated some March 1975 unilat-
eral change, with respect to Wilkinson's and Ferrari's
working conditions, that change's effectuation would have
constituted an unfair labor practice. However, Ferrari's
testimony, taken at face value, provides no substantial,
reliable, or probative evidence that Respondent's tugboat
"manning" schedules were effectively modified. The
tugboat operator reported merely that Wilkinson and he
were told Respondent's management "wanted" certain
changes made.
Previously, within this decision, I have found that Ferrari
misconstrued Salesman Kuzak's message regarding the
particular change which President Crites was then consid-
ering. Ferrari's mistaken belief, with respect to the
projected change's purport and consequences, may have
prompted his decision to telephone Complainant Union's
business representative. With matters in their present
posture, however, the fact that Ferrari's communication
derived from a mistaken, but good-faith belief may be
considered immaterial, with respect to this case's disposi-
tion.
Further, Ferrari conceded that Wilkinson and he were
permitted to make the particular trip, which they were
being directed to undertake together. He proffered no
testimony, whatever, that Respondent's spokesman had
designated a specific future trip with respect to which
Respondent's tugboat crew complement would be reduced.
825
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mindful of Ferrari's limited testimony, I credit Kuzak's
proffered recollection that Respondent's tugboat operators
essentially, were merely told their employer's management
was "thinking about" making a change, and that he
[Kuzak] was "in charge of trying to work out" modifica-
tions in Respondent's tugboat manning schedule. Since no
real "unilateral" change was then effectuated, or definitive-
ly set for some future tugboat run, Business Representative
Ferguson could have requested consultations and bargain-
ing with respect thereto; he reacted, however, reflexively.
His decision that Respondent's vessel should be "tied up"
forthwith, within my view, cannot, properly, be considered
a protest directed against statutorily proscribed conduct.
Third: Upon the present record, no determination would
be warranted within my view that President Crites' April 4
rejection of Complainant Union's contract proposal re-
flected a concurrent rejection of collective-bargaining
principles. Conceivably, General Counsel's representative
and Complainant Union's counsel might contend that,
when Respondent's president rejected those provisions,
within Business Representative Ferguson's draft proposal,
with which his designated representative, General Manager
Turrin, had previously concurred, his [Crites'] reaction
revealed "bad faith" negotiations. Compare N.L.R.B. v.
Shannon & Simpson Casket Company, 208 F.2d 545, 548
(C.A. 9, 1953), enfg. 99 NLRB 430 (1952). The record,
however, will support a determination, which I have made
previously within this decision, that Respondent's general
manager had never been "authorized" specifically to
commit his principal; that he had never represented
himself as possessing plenary powers in Respondent's
behalf; and that Ferguson's belief, regarding Turrin's
presumed power to bind Respondent herein, derived from
a mistaken recollection. Thus, when Respondent's presi-
dent, during their April 4 restaurant session, rejected
Complainant Union's proffered contract and directed
General Manager Turrin to prepare a counterproposal, he
was not thereby "widening the area of disagreement"
between Respondent and Complainant Union's negotiator.
His conduct therefore could not transform Complainant
Union's tugboat strike, which continued thereafter, into the
so-called "unfair labor practice" stoppage.
To put the matter shortly then, since Business Represen-
tative Ferguson's March 1975 decision to strike Respon-
dent's vessel cannot properly be characterized as calculated
to protest some statutorily proscribed conduct, both
Wilkinson and Ferrari must for present purposes be
considered economic strikers. As such, they were legiti-
mately subject to permanent replacement. And, within
"one or two" weeks following Complainant Union's April
6 rejection of Respondent's contract proposal, they were
replaced. Before his replacement, Wilkinson had, so the
limited record herein shows, presumptively lost "employ-
ee" status. See Section 2(3) of the statute. He had formally
resigned; thereafter, he had, so Ferrari's testimony prof-
fered without contradictions suggests, secured "regular and
substantially equivalent" work elsewhere.
Despite a contrary suggestion, proffered by General
Counsel's representative within her brief, the record herein
supports a determination, which I have made, that
Respondent's striking tugboat operators had been replaced
before Ferrari presented himself for reinstatement. Thus,
when Complainant Union's business representative, some-
time thereafter, requested General Manager Turrin to
resume their contract talks, MEBA no longer represented
Respondent's tugboat operators. And Turrin's refusal to
resume negotiations was, therefore, privileged.
Again, despite a contrary contention suggested within
General Counsel's brief, no determination would be
warranted, within my view, that Respondent's manage-
ment had "hastily" recognized Masters, Mates, and Pilots
for collective-bargaining purposes, while Complainant
Union herein was still entitled to demand recognition as
the collective-bargaining representative for Respondent's
tugboat operators. The record reveals that Respondent's
general manager, pursuant to President Crites' direction,
had merely queried Captain Fuller with respect to whether
his organization could provide licensed personnel qualified
to staff Respondent's vessel. When Captain Fuller reported
that such personnel could be supplied, he suggested merely
that a collective-bargaining contract could be later negoti-
ated. These reciprocal communications, within my view,
reflect nothing more than Respondent's determination to
procure licensed tugboat operators from a known referral
source; they reflect no a priori commitment to recognize
Masters, Mates, and Pilots for collective-bargaining pur-
poses.
With matters in this posture, finally, Respondent's
refusal to resume contract negotiations, pursuant to
Business Representative Ferguson's somewhat belated
request, cannot be considered a refusal to bargain,
statutorily proscribed. General Counsel's contention, with
respect thereto, must be rejected.
2. The termination of Ferrari
Clearly, when Ferrari sought reinstatement, he was told
that he had neither been laid off, nor discharged.
Respondent's spokesman, when he denied the propriety of
these descriptive characterizations with respect to Ferrari's
situation, was technically correct. The tugboat operator,
while a striker, had been permanently replaced. Though he
retained "employee" status, since he had not, so far as the
record shows, procured "regular and substantially equiva-
lent" work elsewhere, Respondent had no continuing
statutorily mandated "obligation" with respect to his
reinstatement forthwith. Cf. The Laidlaw Corporation, 171
NLRB 1366, 1368-70 (1968). The firm's refusal to put
Ferrari back to work immediately, therefore, cannot
properly be considered reflective of discrimination, statuto-
rily proscribed.
Conceivably, because his "unconditional application for
reinstatement" nevertheless continued current, Ferrari may
arguably have subsequently been deprived of statutorily
guaranteed rights, defined within this Board's Laidlaw
decision previously noted, since Respondent presumably
failed to "seek him out" with a reinstatement offer,
whenever some later tugboat operator vacancy developed.
The present record, however, provides no substantial,
reliable, or probative basis for a determination that since
April 1975 tugboat operator vacancies have developed or
been filled. Thus, a determination that Respondent has
failed to fulfill some statutory obligation, with respect to
826
H. C. THOMSON
Ferrari's post-application reinstatement, would not be
warranted herein.
While a witness, General Manager Turrin did concede
that Ferrari had very possibly been told sometime during
this period that he could reapply for work, but that
Respondent had no MEBA contract, and that, should he
be rehired, he would "have to join" the Masters, Mates,
and Pilots organization. Such a statement - with respect to
which Ferrari, while a witness, was never questioned - might
arguably be considered reasonably calculated to restrain
and coerce him, with respect to rights statutorily guaran-
teed. The present record, however, provides no clue, pro or
con, with respect to whether Respondent's management,
since April 1975 particularly, has negotiated a collective-
bargaining contract with Masters, Mates, and Pilots,
compassing a union-security provision. Thus, since Gener-
al Manager Turrin's testimonial concession that he made
the statement was merely tentative, and since the state-
ment, whenever made, could conceivably have been
bottomed upon some valid contractual provision, no
statutory violation with respect thereto has, within my
view, preponderantly been established.
3. The refusal to hire Taliaferro
General Counsel contends, herein, that Respondent
discriminated with respect to Taliaferro's hire, since the
firm's management refused to employ him because of his
membership in Complainant Union, or because it condi-
tioned his hire upon his willingness to become a Masters,
Mates, and Pilots member. The record considered in
totality persuades me that, with respect to this particular
facet of the present case, the General Counsel's contention
merits Board concurrence.
a. The status of Kuzak
Since River Sands' salesman, Michael Kuzak, was the
person who communicated with Taliaferro regarding his
possible hire, Respondent's liability for the salesman's
course of conduct must necessarily rest upon some
determination with respect to his status as President Crites'
surrogate.
Before the hearing convened, with respect to this matter,
Respondent's answer, duly filed, had conceded, through a
failure to plead, Kuzak's supervisory status, together with
his status as Respondent's statutory "agent" for present
purposes. However, I permitted Respondent's counsel to
withdraw these tacit concessions during the hearing and to
note denials with respect to both of General Counsel's
contentions.
The present record, considered in totality, persuades me
that, while Kuzak may not have been a statutory "supervi-
sor" with respect to Respondent H. C. Thomson's sand-
dredging and sand-hauling operations, he clearly func-
tioned as the firm's designated agent, throughout his
several contacts with Taliaferro, previously noted.
While a witness, Kuzak conceded that Respondent's
president had specifically requested him to develop a
program, pursuant to which Respondent's tugboat man-
ning schedule might be revised; further, he conceded that,
pursuant to this general directive, Taliaferro had been
contacted. In this connection, Kuzak testified that Presi-
dent Crites had specifically "authorized" him to proceed,
during a management-sponsored "caucus" wherein he,
Respondent's president, and General Manager Turrin had
participated. Both Crites and Turrin were present, within
the hearing room, when Kuzak's testimony to this effect
was proffered; neither, however, challenged the correctness
of their salesman's recital. With matters in this posture,
Respondent's failure to controvert Kuzak's testimony,
within my view, warrants a determination, consistent
therewith, that his subsequent conversations with Taliafer-
ro were conducted pursuant to specific "authority" with
which he had been vested. In addition, the record reveals
that Respondent's management representatives have regu-
larly utilized Kuzak as their "conduit" whereby orders and
information were relayed to tugboat and barge personnel.
Mindful of these circumstances, I conclude that Kuzak's
conversational statements and course of conduct, with
respect to Taliaferro specifically, can be imputed to
Respondent herein. Clevenger Logging, Inc., 220 NLRB
768, 778 (1975); Broyhill Company, 210 NLRB 288, 294,
fns. 40, 41 (1974); cf. Paramount Trends, Inc., 222 NLRB
141, 142 (1976) in this connection.
b. The refusal to hire
There can be no doubt, upon the present record, that
Kuzak had himself communicated with Taliaferro; further,
there can be no doubt that Taliaferro had been specifically
solicited to contact him (Kuzak) with regard to possible
employment. During their May 6 telephone conversation,
when the tugboat operator asked whether Respondent's
position was still open, Kuzak declared that it was.
Further, he proffered details with respect to Respondent's
pay scale and the position's projected work schedule.
Finally, he queried Taliaferro with regard to whether the
latter would be willing to make a trial run.
During this conversation, so Taliaferro's credited testi-
mony shows, Kuzak had likewise asked whether he
(Taliaferro) held Masters, Mates, and Pilots membership;
when the tugboat operator replied negatively, Kuzak had
declared that whatever person Respondent hired would
have to be a Masters, Mates, and Pilots member, or
become a member, to retain the position.
Previously, during their preliminary May 5 conversation,
Taliaferro had told Kuzak he would clear Respondent's job
offer with Complainant Union herein. Kuzak's reaction,
though not forthrightly negative, had been, so I find, subtly
discouraging. Taliaferro, so his credited testimony shows,
did declare his reluctance to consider joining "another"
labor organization; however, he did not "rule out" such a
possibility, prospectively. During the balance of their
conversation, neither Kuzak nor Taliaferro pursued the
matter further.
Nevertheless, Taliaferro was never summoned for his
promised trial run on Respondent's vessel, which River
Sands' salesman had designated a hiring prerequisite. With
matters in this posture, there can be no doubt that thereby
Kuzak effectively withdrew a job "offer" which Taliaferro
could reasonably consider made, or alternatively, that
River Sands' salesman suspended certain standard proce-
827
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dures which normally would have preceded a formal
"offer" with respect to some position. I so find.
While a witness, Kuzak reported his present "thought"
that Taliaferro was never hired because President Crites
had decided he would continue Respondent's current two-
man crew arrangement, pursuant to which no relief
operators would be required. Such testimony necessarily
suggests that, whatever Taliaferro may have thought, the
firm's search for a tugboat operator was really suspended
for business reasons. I have not, however, been persuaded.
The record shows that Kuzak had previously been directed
to consider and formulate some revision in Respondent's
tugboat manning schedule during March 1975; conceded-
ly, he was still working on President Crites' project some
one and one-half months later. Under these circumstances,
the salesman's suggestion that he was directed to forego
any further communication with Taliaferro, because
Respondent's president had thus belatedly changed his
mind, carries no ring of truth.
Whether Kuzak himself decided that his contacts with
Taliaferro should be terminated, or whether President
Crites directed him to forego further contacts need not be
determined. Respondent's management representatives
had clearly manifested already their desire to refrain from
further contacts with Complainant Union herein. Conced-
edly, they had been and were concerned that, should they
rehire or hire MEBA members for tugboat operations the
continuity of those operations might be jeopardized. Their
decision to forego Taliaferro's hire - clearly manifested
when Kuzak failed to maintain their previously initiated
contacts - stemmed, I find, from their concerns. That
decision, thus motivated, violated the law.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
Respondent H. C. Thomson's course of conduct set forth
in section III, above, since it occurred in connection with
Respondent's business operations set forth in section I,
above, had, and continues to have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States; absent correction, such conduct,
so far as it has been found subject to statutory proscription,
would tend to lead to labor disputes burdening and
obstructing commerce, and the free flow of commerce.
CONCLUSIONS OF LAW
In view of these findings of fact, and upon the entire
record in this case, I make the following conclusions of
law:
1. Respondent, H. C. Thomson, Inc., is an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce and business activities which affect commerce
within the meaning of Section 2(6) and (7) of the Act, as
amended.
2. District No. I - Pacific Coast District, Marine
Engineers Beneficial Association, is a labor organization
within the meaning of Section 2(5) of the Act, as amended,
which admits certain employees of H. C. Thomson, Inc. to
membership.
3. Respondent H. C. Thomson's management represen-
tatives, when they withdrew a job offer or determined that
Anthony Taliaferro would not be offered a tugboat
operator's position because he proposed to clear his
possible employment with Complainant Union herein, and
because Taliaferro had suggested his possible reluctance to
seek a work referral through International Organization of
Masters, Mates, and Pilots, or to seek membership therein,
discriminated against Taliaferro with respect to his hire
and further interfered with, restrained, and coerced
Respondent's employees generally, with respect to their
exercise of rights statutorily guaranteed.
4. General Counsel's representative has not provided,
for the present record, substantial, reliable or probative
evidence sufficient to justify a determination that Respon-
dent H. C. Thomson, Inc. has violated Section 8(a)(5), (3),
or (I) of the statute, save in the particular respect
hereinabove noted.
THE REMEDY
Since I have found that Respondent H. C. Thomson has
committed, and has thus far failed to remedy, the specific
unfair labor practice found herein which affects commerce,
I shall recommend that it be directed to cease and desist
therefrom, and to take certain affirmative action, including
the posting of appropriate notices, designed to effectuate
the policies of the statute.
Specifically, since I have found that Section 8(a)(3) and
(1) of the statute were violated when Respondent's
management representatives withdrew a job offer which
Anthony Taliaferro had previously received, or determined
to suspend their firm's standard procedures which normal-
ly would have preceded his prospective hire, for statutorily
proscribed reasons, I shall recommend that Respondent be
required to offer Taliaferro a tugboat operator's position
promptly discharging, if necessary, to make a position
available for him, any operators hired after May 6 without
prejudice to his seniority and other rights and privileges
which he would have enjoyed had he been employed on
May 6, 1975. Should it be determined, however, that no
tugboat operator vacancy presently exists, and that
Respondent has hired no tugboat operators since May 6,
1975, Respondent H. C. Thomson, Inc. should prepare a
preferential hiring list headed with Anthony Taliaferro's
name. With this done, Taliaferro should be offered
employment whenever a tugboat "operator" vacancy
develops, with respect to Respondent's vessel. Consolidated
Dairy Products Company, d/b/a Darigold Dairy Products
Company, 194 NLRB 701, 706-707 (1971); cf. W. B. W.
Services, Inc., 190 NLRB 499, 504 (1971); Lipsey, Inc., 172
NLRB 1535-36, 1551-53 (1968); The Hughes Corporation,
135 NLRB 1222, 1223 (1962). Respondent should, further,
make Taliaferro whole for any pay losses which he may
have suffered by reason of the discrimination practiced
against him, by paying him a sum of money equal to the
amount which he normally would have earned as wages,
from the date when his services would have been required,
initially, to the date of Respondent's hiring offer, or the
date of his placement on Respondent's preferential hiring
list, less his net earnings during the period designated.
Taliaferro's backpay should be computed by calendar
828
H. C. THOMSON
quarters, pursuant to the formula which the Board now
uses, cf. Yuba Consolidated Industries, Inc., 136 NLRB 683,
688-689 (1962); F. W. Woolworth Company, 90 NLRB 289.
Interest thereon should likewise be paid, computed at 6
percent per year. See Isis Plumbing & Heating Co., 138
NLRB 716 (1962), in this connection.
[Recommended Order omitted from publication.]
829