Tracy Towing Line, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 81 (N.L.R.B. 1967)

TRACY TOWING LINE, INC.
Tracy Towing Line , Inc. and John Obermeier,
United Marine Division , Local 333 National
Maritime Union , AFL-CIO (Tracy Towing Line,
Inc.) and John Obermeier . Cases 2-CA-11093
and 2-CB-4438
June 28, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On March 3, 1967, Trial Examiner Wellington A.
Gillis issued his Decision in the above-entitled
proceedings, finding that the Respondents had en-
gaged in and were engaging in the unfair labor prac-
tices alleged in the complaint and recommending
that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Re-
spondents filed exceptions to the Trial Examiner's
Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and, for the reasons
set forth below, finds that no prejudicial error was
committed. The rulings, except as herein modified,
are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the Respondent's ex-
ceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with
the following comments and modifications.
In its answer to the complaint, the Respondent
Employer pleaded as a second affirmative defense
that employee Obermeier was unsuitable for reem-
ployment because he had made an allegedly false
accusation that the Respondent Employer had been
allowed to eliminate certain jobs through a corrupt
agreement between the Respondent Employer and
the president of Respondent Union. At the hearing,
the General Counsel moved that this affirmative
defense be stricken on the ground of irrelevancy.
After extensive argument by all parties, the Trial
Examiner struck the defense and prohibited the in-
troduction of any evidence with respect to this
defense. Thereupon, the Respondent Employer
made an offer of proof and offered into evidence a
document consisting of the transcript of a hearing
by a committee of the Respondent Union upon
which the Respondent Employer relies to support
its second affirmative defense. The Trial Examiner
rejected the offer of proof and refused to admit the
' See In. 5 of the Trial Examiner's Decision for a full recital of the
Respondent Employer's second affirmative defense.
2 See John F Cuneo Company, 152 NLRB 929.
166 NLRB No. 9
81
proffered exhibit into evidence. The Trial Examiner
also denied a similar offer of proof made by the
Respondent Union.
The Respondent Employer excepts to these
rulings by the Trial Examiner and contends that:
"By striking the second affirmative defense, and
by excluding evidence and cross-examination per-
tinent to that defense, the Examiner had to decide
the issue on the basis of the truth of the facts
pleaded in- that defense, namely, that (1) the libel
against Tracy is false; (2) the libel was uttered by
Obermeier either with actual knowledge of its falsi-
ty for ulterior reasons; or (3) in view of his admis-
sion under oath that he had no evidence to support
the charge, that it was published recklessly."
A perusal of the Employer's second affirmative
defense does not bear out the Employer's conten-
tion as listed in (2) and (3) above. The "facts
pleaded" in the second affirmative defense t are
that Obermeier's utterances were false, constituted
defamatory charge of criminal conduct, and, as
Obermeier refuses to disavow the charges, the Em-
ployer is unwilling to reinstate him.
It is well established that suitability for rehire is
a proper subject of inquiry in a case where a viola-
tion of Section 8(a)(3) is found, because it is materi-
al to the question of the appropriateness of the usual
remedy of reinstatement with backpay.2 We find,
accordingly, that it was error for the Trial Examiner
to strike the Respondent Employer's second affir-
mative defense alleging that Obermeier was un-
suitable for reemployment. We shall, therefore, ac-
cept Respondent Employer's proffered evidence as
part of the record in this proceeding and assume its
correctness and validity for the purposes of this
decision .3 Since we are at this stage considering
the Respondent's defense and the evidence
Respondent proffered to support it, we find that the
Trial Examiner's error in striking this defense was
not prejudicial. Further, we conclude on the basis
of all the evidence, including the evidence con-
tained in Respondent's offer of proof, that Obermei-
er is entitled to reinstatement with backpay.
Obermeier's statements to which the Respondent
Employer takes exception were made in the heat of
discussion at an internal union meeting and in the
course of discussion of union affairs. Obermeier's
charge, made directly to the Union's president, was
that on an earlier occasion the conduct of the
Union's president had been such as to indicate that,
in Obermeier's words, he "was working for the boat
owners." Obermeier did not state, as Respondent
Employer contends, that the "boat-owners" had
bribed or paid off the Union's president. Nor did he
specify or name any officer or other representative
of Respondent Employer as having engaged in im-
proper conduct. At the union committee hearing,
3 The Respondent Employer's request for oral argument is denied
because in our opinion the record , exceptions, and briefs adequately set
forth the issues and positions of the parties.
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Obermeier, in substance, disavowed an intent to
imply criminal conduct of the kind imputed to his
statements by spokesmen for the committee. And
we find nothing in the transcript of the union com-
mittee hearing to indicate that Obermeier's ut-
terances, even though they may have been inaccu-
rate, were deliberately or maliciously false.4
Since the statements of Obermeier were made at
a union meeting, were pertinent to a debate involv-
ing internal union affairs, and, as we have found,
were not deliberately or maliciously false, it is clear
beyond doubt that Obermeier was engaged in con-
certed, protected activity when he made such state-
ments. If the Employer had discharged Obermeier
for making such statements, it would have com-
mitted a violation of the Act.5 Therefore, since such
statements would not constitute a valid basis for
discharge, a fortiori, they do not warrant denial of
the usual remedy of reinstatement and backpay
granted to an employee who, like Obermeier, has
been unlawfully discharged.
Accordingly, in all the circumstances of this case,
we find that the policies of the Act will best be ef-
fectuated by ordering Obermeier's reinstatement
with backpay in accord with the Trial Examiner's
recommendation.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Tracy Towing Line,
Inc., New York, its officers, agents, successors,
and assigns, and Respondent United Marine Divi-
sion, Local 333, National Maritime Union,
AFL-CIO, New York, New York, its officers,
agents, and representatives, shall take the action set
forth in the Trial Examiner's Recommended Order.
4 Walls Manufacturing Company, Inc., 137 NLRB 1317; Marlin
Firearms Company, 116 NLRB 1834; VermontAmerican Furniture Cor-
poration, 82 NLRB 408.
5 Walls Manufacturing Company, Inc., supra.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Trial Examiner: Upon
separate charges filed on September 16, 1966, as
separately amended on November 14, 1966, by John
Obermeier, an individual, the General Counsel of the Na-
tional Labor Relations Board, hereinafter referred to as
the Board, issued a consolidated complaint on November
23, 1966, against Tracy Towing Line, Inc., hereinafter
referred to as the Respondent Company or Tracy, and
United Marine Division, Local 333 National Maritime
Union, AFL-CIO, hereinafter referred to as the Re-
I As hereinafter discussed, during the early stages of the hearing, I
granted the General Counsel's motion to strike the Respondent Com-
spondent Union or Local 333, alleging violations of Sec-
tion 8(a)(3) and (1) and 8(b)(1)(A) and (2), respectively,
and Section 2(6) and (7) of the National Labor Relations
Act, as amended (61 Stat. 136), hereinafter referred to as
the Act. The Respondent Company and the Respondent
Union thereafter filed timely answers to the complaint
denying the commission of any unfair labor practices.
Pursuant to notice, a hearing was subsequently held on
December 19 and 22, 1966, at New York, New York,
before me, at which all parties were represented by coun-
sel and were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, to introduce
evidence pertinent to the issues,' and to engage in oral ar-
gument. Briefs were subsequently filed by the General
Counsel and by counsel for the Charging Party and for
the Respondent Company.
Upon the entire record in this case and from my obser-
vation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT COMPANY
Tracy Towing Line, Inc., maintaining an office and
place of business at New York, New York, is engaged in
providing marine towing services and related services.
During the year immediately preceding the issuance of
complaint,-the Company performed services valued in ex-
cess of $50,000, of which amount, services valued in ex-
cess of $50,000 were performed for various enterprises,
including the Public Service Electric and Gas Company
of New Jersey, each of which meets the standards of the
Board for the assertion of jurisdiction. The parties admit,
and I find, that the Respondent Company is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE RESPONDENT LABOR ORGANIZATION
The parties admit, and I find, that United Marine Divi-
sion, Local 333 National Maritime Union, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The sole issue to be resolved is whether the charging
individual, John Obermeier, who, until his discharge on
September 8, 1966, was employed as a first engineer
aboard one of the Respondent Company's tugboats, is a
supervisor within the meaning of the Act.
B. The Facts
For 22 years John Obermeier worked aboard tugboats,
the last 19 as a marine engineer, and the last 9 as a first
assistant engineer for the Respondent Company. During
these 22 years, Obermeier was a member of the Respond-
ent Union. For an undisclosed number of years the
Union and the Company have been parties to a
collective-bargaining contract covering engineers and
other employees of the Company and containing a union-
security clause requiring membership in the Union as a
condition of employment with the Company.
pany's second affirmative defense and thereafter refused to receive
evidence pertaining thereto.
TRACY TOWING LINE, INC. 83
By letter dated September 8, 1966,2 the Company was
notified by the Union that Obermeier had been
suspended from union membership for a period of 6
months and deprived of his union privilege for a period of
1 year, and demanded that the Company relieve
Obermeier of his duties immediately. Pursuant to the
Union's request, Obermeier was discharged on this date,
and at no time since has received an unconditional offer
of reinstatement from the Company or been notified by
the Union that it has advised the Company that it no
longer has any objection to his employment.
Based upon the assertions of counsel for both Re-
spondents, separately and collectively, it appears that
Obermeier was suspended from the Union for having
charged at a union membership meeting the collusion
several years earlier between a union officer and a com-
pany official in allowing the Company to eliminate certain
jobs on its tugs, and after Obermeier, who had been given
a hearing before union officials on the matter, refused to
withdraw his charges or disavow them publicly. Early in
this hearing, both Respondents admitted that the Union's
request and thus the Company's discharge were based
upon factors other than Obermeier's failure to tender
dues or initiation fees, and both conceded that such is a
technical violation of the Act.3 While it is difficult to un-
derstand the Union's defense to the 8(b)(1)(A) and (2)
charges,4 unless it is bottomed on the proposition that
these asserted circumstances warrant an exception being
made to the "dues and the initiation fees" limitation of
Section 8(b)(2), the Respondent Company, in its second
affirmative defense set forth in its answer and argued at
length by counsel at the start of the hearing, took the posi-
tion that, notwithstanding an improper discharge, because
of the nature of Obermeier's conduct and his continued
refusal to disavow his remarks publicly, it would not ef-
fectuate the purposes of the Act to order Obermeier's
reinstatement.5 After extensive argument by counsel for
all parties, and in part because I was of the opinion that
even assuming the truth of the facts asserted by the
Respondent Company there existed no valid basis for
denying the discriminatee's reinstatement, I granted the
General Counsel's motion to strike the Respondent Com-
pany's second affirmative defense and denied the latter's
offer of proof pertaining thereto.
In view of my ruling in this regard, only the Respond-
ent Company's first affirmative defense, on which the
Respondent Union also relied, remained to be litigated,
to wit, that Obermeier, a first assistant engineer, is a su-
pervisor within the meaning of the Act and, by reason
thereof, is not an employee entitled to the protection of
the Act. In this regard, the record reveals that Tracy
owns and operates seven tugboats in and around the New
York City waterfront. As is common with many tugboat
operations, Tracy's boats are staffed with a deck crew
and a engineroom crew, the former consisting of the cap-
tain, a mate, four deckhands, and a cook. The engineroom
crew aboard Tracy's tugs, with the exception of the
Walter Tracy, hereinafter alluded to, is made up of the
chief engineer, a first assistant engineer, a second
assistant engineer, and an oiler. There is no interrelation-
ship in any way between the deck department, which is
responsible for the steering, docking, and undocking
operations of the tug, and the engineeroom department,
the jurisdiction of which is limited to the confines of the
engineroom where it is responsible for the operation and
maintenance, including preventative maintenance, of the
room, powerplants, and all allied equipment such as en-
gines, compressors, pumps, electric motors, etc.
The four enginefoom personnel operate on rotating
shifts, each on 7 days, off 3 days, on 7 days, and off 4
days, during which, on a 24-hour day, the three engineers
alternate standing 6-hour watches, 6 hours on and 6 hours
off. Functionally there appears to be little or no difference
among the three classes of engineers, each of whom is
responsible for the proper operation of the engine, includ-
ing its pressures, lubrication, and coolness. The chief en-
gineer, who performs a small amount of paper work not
required of the others, also receives a higher pay than the
first and second assistant engineers, who receive identical
compensation. The oiler is responsible primarily for keep-
ing the engineroom clean, the floors scrubbed, the paint-
work washed, the brass shined, and the engine wiped. It
is clear that, barring the infrequent engine breakdown,
there is little mechanical or manual work required of the
engineers, each of whom is licensed and skilled in his
profession. Similarly, it would appear that, in the course
of his regular workday, and excepting the unusual break-
down when he would assist the engineers, the oiler, who
is well acquainted with his duties and responsibilities,
requires no direction.
Whenever the chief engineer is off the boat, which is
one-third of the time, the first assistant engineer assumes
the position of acting chief, and is paid accordingly.
Although the chief engineer is the senior engineer when-
ever he is aboard, the engineer on watch, whoever he
might be, is in charge of the engineroom while on watch
and has the authority, inter alia, when he deems it neces-
sary, to break out of watch any other engineroom person-
2 All dates herein refer to the year 1966.
3 While counsel for the Respondent Company stated that Obermeier's
remarks, contained in a transcript of the union hearing, were not made
known to the Company until shortly after Obermeier 's discharge, he ad-
mitted that at the time of the Union 's demand the Company was aware of
the fact that it was based upon considerations other than the failure to
tender dues or fees , and that it was accompanied by a statement that "if
we didn 't [discharge Obermeierl , why, the boat won't work," to which
economic pressure the Company yielded.
4 This section provides in pertinent part that:
(b) It shall be an unfair labor practice for a labor organization or its
agents-
(1) to restrain or coerce (A) employees in the exercise of the rights
guaranteed in section 7 . .
(2) to cause or attempt to cause an employer to discriminate against
an employee in violation of subsection (a)(3) or to discriminate
against an employee with respect to whom membership in such or-
ganization has been denied or terminated on some ground other than
his failure to tender the periodic dues and the initiation fees uniformly
required as a condition of acquiring or retaining membership ... .
5 The Respondent Company's second affirmative defense read as fol-
lows:
Shortly after the employment of the charging party, Obermeier,
was terminated by Tracy, Tracy was given a copy of a transcript at a
hearing before representatives of the Union , said transcript having
been taken by a qualified reporter and a reading of said transcript
revealed the following facts
Obermeier charged that Respondent Tracy had been allowed by
the Union to eliminate certain jobs by reason of an assertedly corrupt
agreement between Captain Joseph O'Hare, an executive of the
Union, and a representative or representatives of the Tracy Com-
pany. The acts imputed to the Tracy management by Obermeier, if
true, would constitute a serious Federal crime. Obermeier, in
response to questions of the aforesaid hearing before the union
representatives admitted that he had no evidence to support such ac-
cusations Such allegations by Obermeier are and were false in all
respects.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
net then aboard, including the chief, and, additionally, has
the responsibility to certify the fact on the record for
overtime purposes.6
Because of the fact that the first assistant engineer
aboard Tracy's tugboats spends one-half of his working
time (one-third of his total time) in the capacity of acting
chief engineer with the chief's authority during such
period, considerable testimony was elicited from both
Obermeier, the first assistant engineer aboard the Helen
Tracy, and from the Respondent Company's witness,
Charles Hagen, the chief engineer aboard the same boat,
particularly with reference to the oiler. Such testimony,
practically none of which is conflicting, reveals that
oilers, and presumably engineers as well, are hired at the
shoreside office, and, like engineers, are scheduled by the
dispatcher or personnel manager. With respect to the
chief engineer's authority over the oiler, it is established
that no job description setting forth duties, responsibili-
ties, and authority was ever issued by the Company.
Hagen testified without contradiction, however, that (a)
when he was hired by the Company 23 years ago as chief
engineer he was told that he was responsible for the en-
gineroom and the personnel in it,7 (b) on one occasion
during his 23 years, Hagen discharged an oiler, which ac-
tion was not challenged by the Company, (c) on one other
occasion during his tenure with the Company, Hagen
recommended that an oiler with whom he had previously
worked be rehired by the Company, which recommenda-
tion was favorably acted on, (d) in case of needed
assistance in an engineroom breakdown or other out-of-
the-ordinary repair, the chief or any engineer in charge at
the time has the authority to direct the oiler as to how the
job is to be done, to the extent that direction is necessary,
and (e) once or twice he had been asked whether an oiler
was competent, and had prepared a report with respect
thereto.8 Hagen further testified, however, apparently
with the exception of this one instance, he never per-
sonally asked the Company to hire an oiler, and that he
knew of no instance in the 23 years when an oiler was
referred for hire by others in the engine department.
Notwithstanding_ the existence or lack of existence of
supervisory indicia with respect to the chief engineer over
the oiler, there exists one big distinguishing factor
between the chief engineer and the first assistant engineer
when the latter is acting as chief. The record is clear that
today, and for the past 3 or 4 years, the practice is that the
chief engineer and the oiler always are on and off
8 To break out of watch encompasses the calling to work of one who is
on the boat but off duty.
7 At that time, and for the next 7 or 8 years , the tugs were steam rather
than diesel , and were staffed with three engineers , three firemen, and one
oiler.
8 The accuracy of this, however , is challenged by Hagen's testimony on
cross-examination where he testified that he did not exactly remember the
Company ever asking for a report on a particular person.
9 As briefly alluded to above, the one exception to the general tugboat
operation of Tracy is the boat , the Walter Tracy. In this regard , the uncon-
tradicted testimony of Obermeier reveals that for a number of years he has
worked primarily aboard the tug the Helen Tracy, but there had been oc-
casions when he filled in aboard the Walter Tracy. Unlike the other
boats , the Walter Tracy is engaged in transporting coal barges around pier
18, and on this boat there is a day watch and a night watch. An engineer
works with an oiler on the day watch, and another engineer works alone
on the night watch Obermeier credibly testified that, except for two
periods in 1965 when he substituted for 1 week as the oiler aboard the
Walter Tracy and subsequently worked 4 weeks as the night engineer, he
had not worked on the Walter Tracy for 3 or 4 years Accordingly, I find
without merit the argument set forth in the brief of the Respondent Com-
pany pertaining to Obermeier 's service aboard the Walter Tracy
together, that the oiler always works only with the chief
engineer , and never works with the first assistant en-
gineer. When the chief is off the boat, the oiler is off the
boat. In addition to Hagen's substantiation of this fact,
Obermeier testified that it had been several years since he
worked with an oiler,9 and that at no time had he ever
discharged or disciplined an oiler or recommended such
action. Hagen corroborated Obermeier in this regard, tes-
tifying that he knew of no instance in his 23 years when a
first assistant engineer discharged or disciplined an oiler.
Hagen further testified that under the system operating
today, a first assistant engineer , whether acting as chief
engineer or not, never needs the assistance of an oiler.
Thus, whether or not the chief engineer on Tracy's boats
can be said to have the authority responsibly to direct the
work of the oiler, as asserted by both Respondents, the
fact remains that a first assistant engineer, even when act-
ing as the chief, does not have such authority, for he has
no oiler working with him. 10
In support of their mutual position that Obermeier is a
supervisor within the meaning of Section 2(11) of the
Act,11 the Respondents argue that, in line with the
Board's Mississippi Valley Barge case,12 regardless of
whether he exercised authority over the oiler, Obermeier
has the right to do so and that is all that is required for a
supervisory finding. A close perusal of that decision,
however, discloses that the whole impact of the Board's
rationale in finding supervisory status is keyed to the rela-
tionship existing between the engineers and the strikers
(oilers) and the fact that each engineer "has a single
striker working for him." In the instant case, first
assistant engineers, including Obermeier, do not work
with oilers and accordingly have no employees to super-
vise.13
On the record as a whole, I find that John Obermeier
does not possess any of the indicia of supervisory authori-
ty set forth in Section 2(11) of the Act, and that, ac-
cordingly, he is an employee entitled to the full protection
of the Act.14 I find therefore that the Respondent Com-
pany, in discriminatorily discharging Obermeier on Sep-
tember 8, 1966, and in refusing thereafter to offer him un-
conditional reinstatement, violated Section 8(a)(3) and (1)
of the Act, and further find that the Respondent Union,
in unlawfully causing the Respondent Company to
discharge Obermeier, violated Section 8(b)(1)(A) and (2)
of the Act.
19 This.fact alone renders moot a number of hypothetical questions put
to, and answered by, Hagen with respect to that period when a first
assistant engineer is acting as a chief.
Nor is there substance to the Respondent's assertion that, at times, first
assistant engineers are in a position to supervise other employees when
the tug is in for shipyard repairs. The record shows that such repairs are
performed by employees of Cadell's Drydock Co. under their own super-
vision, and that, during such times, the Respondent's chief engineer is also
present.
" Section 2(11) provides that:
(11) The term "supervisor" means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay off, re-
call, promote, discharge, assign , reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely routine or
clerical nature, but requires the use of independent judgement.
Mississippi Valley Barge Line Co., 151 N LRB 676.
Graham Transportation Company, 124 NLRB 960.
" Capital Transit Company, 114 NLRB 617
TRACY TOWING LINE, INC.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent Company and the
Respondent Union set forth in section III, above, occur-
ring in connection with the operations of the Respondent
Company described in section I, above, have a close, inti
mate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
It having been found that Tracy Towing Line, Inc., and
United Marine Division , Local 333 National Maritime
Union , AFL-CIO , have engaged in certain unfair labor
practices , it is recommended that each cease and desist
therefrom and take certain affirmative action which is
necessary to effectuate the policies of the Act.
It having been found that Tracy Towing Line, Inc., on
September 8, 1966 , at the request of Local 333, dis-
criminatorily discharged John Obermeier , it is recom-
mended that Tracy offer him immediate and full reinstate-
ment to his former or a substantially equivalent position,
without prejudice to his seniority and other rights and
privileges . It is further recommended that Tracy , jointly
and severally with Local 333, make John Obermeier
whole for any loss of earnings he may have suffered as a
result of the discrimination against him , by making pay-
ment to him of a sum of money equal to the amount he
would have earned from the date of the discrimination to
the date of the offer of reinstatement , less net earnings
during said period , to be computed on a quarterly basis in
the manner established by the Board in F . W. Woolworth
Company, 90 NLRB 289, and shall include the payment
of interest at the rate of 6 percent per annum to be com-
puted in the manner set forth by the Board in Isis Plumb-
ing & Heating Co., 138 NLRB 716.15
It is also recommended that Local 333 notify Tracy
and John Obermeier , in writing, that it has no objection to
the employment of Obermeier aboard Tracy 's tugboats or
elsewhere and that , Local 333's liability for further ac-
crual of backpay shall cease 5 days after the giving of
such notification . It is further recommended that Tracy
post appropriate notices at its office , including all places
where notices to employees are customarily posted, and
that Local 333 post appropriate notices at its business of-
fice and at any other usual membership meeting places.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Tracy Towing Line, Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. United Marine Division, Local 333 National
Maritime Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging John Obermeier because of his non-
membership in the Union, the Respondent Company en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act.
15 See Reserve Supply Company v. N.L.R.B., 317 F.2d 785 (C.A. 2).
16 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
85
4. By attempting to cause and by causing the Respond-
ent _ Company _ to discriminate against John Obermeier
because of his nonmembership in the Union , the Re-
spondent Union engaged in unfair labor practices within
the meaning of Section 8(b)(2) and (1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
case, it is recommended that:
A. Tracy Towing Line, Inc., its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in United-Marine Divi-
sion, Local 333 National Maritime Union, AFL-CIO, by
discriminating against John Obermeier or any employee
for nonmembership in that organization, except as
authorized in Section 8(a)(3) of the Act, as amended.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer to John Obermeier immediate and full rein-
statement to his former or substantially equivalent posi-
tion, without prejudice to his seniority or other rights and
privileges.
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Jointly and severally with Local 333 make John
Obermeier whole for any loss of earnings he may have
suffered as a result of the discrimination against him in
the manner set forth in the section entitled "The
Remedy."
(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 compute the amount of backpay due
under the terms of this Recommended Order.
(e) Post at its New York office and place of business
copies of the attached notices marked "Appendix A" and
"Appendix B."ts Copies of said notices, to be furnished
by the Regional Director for Region 2, upon being
respectively signed by representatives of Respondents,
shall be posted by Tracy 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 Tracy to insure that
said notices are not altered, defaced, or covered by any
other material.
(f) Mail to the Regional Director for Region 2 signed
copies of the attached notice marked "Appendix A," for
event that the Board's Order is enforced by a decree of a United States
Court of Appeals; the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
308-926 0-70-7
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posting by Local 333. Copies of the notice, to be
furnished by the Regional Director, shall, after being
signed by a representative of the Respondent Company,
be returned forthwith to the Regional Director for post-
ing.
(g) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of receipt of this Deci-
sion, what steps the Respondent Company has taken to
comply herewith.17
B. United Marine Division, Local 333 National
Maritime Union, AFL-CIO, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Tracy Towing Line,
Inc., or any other employer to discriminate against John
Obermeier or any employee in violation of Section 8(a)(3)
of the Act, except to the extent permitted by Section
8(a)(3) of the Act.
(b) In any like or related manner restraining or coercing
employees in the exercise of their rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Jointly and severally with Respondent Company,
make John Obermeier whole for any loss of earnings he
may have suffered as a result of the discrimination against
him, in the manner set forth in the section entitled "The
Remedy."
(b) Notify the Respondent Company, in writing, that it
has no objection to the employment of John Obermeier
aboard its tugboats or anywhere else, and send a copy of
the aforesaid notice to John Obermeier.
(c) Post at its business office and usual membership
meeting places copies of the attached notices marked
"Appendix A" and "Appendix B."111 Copies of said
notices, to be furnished by the Regional Director for Re-
gion 2, after being respectively signed by representatives
of the Respondents, shall be posted by Local 333 im-
mediately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are usually
posted. Reasonable steps shall be taken by Local 333 to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Mail to the Regional Director for Region 2 signed
copies of the attached notice marked "Appendix B," for
posting by the Respondent Company. Copies of said
notice, to be furnished by the Regional Director, after
being signed by a representative of the Respondent Local
333, shall be returned forthwith to the Regional Director
for posting.
(e) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of receipt of this Deci-
sion, what steps the Respondent Union has taken to
comply herewith. 19
19 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director,
in writing , within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
1e See fn. 16, supra.
's See faa. 17, supra.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT encourage membership in United
Marine Division , Local 333 National Maritime
Union , AFL-CIO, by discharging or otherwise dis-
criminating against John Obermeier, or any other
employee, for nonmembership in that organization,
except as permitted under Section 8(a)(3) of the Na-
tional Labor Relations Act, as amended.
WE WILL NOT in any like or related manner inter-
fere with , restrain , or coerce employees in the exer-
cise of rights guaranteed them in Section 7 of the Na-
tional Labor Relations Act.
WE WILL offer to John Obermeier immediate rein-
statement to his former or substantially equivalent
position , without prejudice to his seniority or other`
rights and privileges.
WE WILL, jointly and severally with Local 333,
make John Obermeier whole for any loss of earnings
he may have suffered as a result of the discrimination
against him.
All of our employees are free to become or remain, or
refrain from becoming or remaining , members of United
Marine Division , Local 333 National Maritime Union,
AFL-CIO , or any labor organization , except to the ex-
tent that this right may be affected by an agreement ex-
ecuted in conformity with Section 8(a)(3) of the National
Labor Relations Act.
TRACY TOWING LINE, INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Fifth Floor,
Squibb Building, 745 Fifth Avenue, New York, New
York 10022, Telephone 751-5500, Extension 852.
APPENDIX B
NOTICE TO ALL MEMBERS OF UNITED MARINE DIVI-
SION, LOCAL 333 NATIONAL MARITIME UNION,
AFL-CIO, AND TO ALL EMPLOYEES OF TRACY
TOWING LINE, INC.
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
TRACY TOWING LINE, INC. 87
order to effectuate the policies of the National Labor
Relations Act, as amended, w° hereby notify you that:
WE WILL NOT cause or attempt to cause Tracy
Towing Line, Inc., to discharge or otherwise dis-
criminate against John Obermeier or any other em-
ployee in violation of Section 8(a)(3) of the National
Labor Relations Act, except to the extent permitted
under Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of rights
guaranteed them in Section 7 of the National Labor
Relations Act.
WE WILL, jointly and severally with the Respond-
ent Company, make John Obermeier whole for any
loss of earnings he may have suffered as a result of
the discrimination against him.
WE WILL notify Tracy Towing Line, Inc., and
John Obermeier that we have no objection to the em-
ployment of Obermeier aboard the Respondent's
tugboats or anywhere else.
UNITED MARINE DIVISION,
LOCAL 333 NATIONAL
MARITIME UNION,
AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, Fifth Floor,
Squibb Building, 745 Fifth Avenue, New York, New
York 10022, Telephone 751-5500, Extension 852.