Abilene Area Sheet Metal

National Labor Relations Board - Board Decisions

Jan 24, 1979

240 N.L.R.B. 178 (N.L.R.B. 1979)

178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Abilene Area Sheet Metal Contractors Association
and Abilene Sheet Metal, Inc. and Thomas F.
Walker
Area Association of the Journeymen and Apprentices
of the Sheet Metal Workers in Central West Texas
and Thomas F. Walker. Cases 16-CA-7007 and
16-CB-1221
January 24, 1979
ORDER CLARIFYING DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On July 18, 1978, the Board issued a Decision and
Order' in the above-entitled proceeding in which it
found, inter alia, that Respondent Abilene Sheet
Metal, Inc., hereinafter also called the Company, had
violated Section 8(a)(1) and (3) of the National La-
bor Relations Act, as amended, by discharging em-
ployee Thomas Walker.
Thereafter, on August 31, 1978, the General Coun-
sel filed a motion entitled "Motion for Clarification
of the Board Order in Cases Nos. 16-CA-7007 and
16-CB-1221." On September 14, 1978, Respondent
Abilene Sheet Metal, Inc., filed a brief entitled "Brief
in Response to General Counsel's Motion for Clarifi-
cation of the Board Decision."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
In order to remedy the unfair labor practice re-
garding the unlawful discharge of employee Walker,
the Board's Decision and Order required in para-
graph 2(a) that the Company take the following affir-
mative action:
Offer Thomas Walker immediate and full re-
instatement to his former job or, if his job no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other
rights and privileges, and make him whole for
any loss of pay and other benefits in the manner
set forth in the Remedy section.
In his motion, the General Counsel requests the
Board to clarify its Order to require the Company to
offer Walker reinstatement at a journeyman's posi-
tion and to make him whole for his loss of pay at a
journeyman's rate of pay. In requesting such clarifi-
cation the General Counsel relies on a finding of the
Administrative Law Judge that employee Walker
236 NLRB 1652.
240 NLRB No. 33
would have received the journeyman rate of pay if
the Respondent Union 2 had fairly and impartially
represented Walker in his grievance on this matter.
Respondent Abilene Sheet Metal, Inc., also re-
quests the Board to clarify its Order, but it seeks to
have the Board indicate that Walker is entitled to
reinstatement only to the job he held at the time of
his discharge.4 The Company contends that it should
not be obligated to reinstate Walker to a better posi-
tion than that which he held during his employment
with it.
In this case, the Administrative Law Judge found,
in effect, that the Respondent Union unlawfully pre-
vented a determination as to the merits of Walker's
claim for the journeyman rate of pay. As heretofore
noted, the Administrative Law Judge presumed, only
for the purpose of fashioning a remedy for the Re-
spondent Union's unlawful refusal to process a griev-
ance, that Walker's grievance would have been found
to be meritorious. Significantly, the Administrative
Law Judge made no finding that the Company un-
lawfully refused to promote Walker or paid him a
lesser wage for discriminatory reasons.5 Further, on
the record before us, we are unable to conclude that
Walker, absent the discrimination against him,
would have become classified as a "journeyman"
sh-et metal worker.6 Thus, it follows that the
Company's obligation is to restore Walker to the po-
sition he held at the time of discharge.7
Accordingly, based on the foregoing, we grant the
clarification of our Order sought by Respondent Ab-
ilene Sheet Metal, Inc.
ORDER
It is hereby ordered that the Board's Decision and
Order in this matter be, and it hereby is, clarified to
provide in a footnote (to be designated footnote 5
ard the subsequent footnotes renumbered accord-
ingly) to paragraph 2(a) of the Order as follows:
"5 In ordering that the discriminatee be rein-
Area Association of the Journeymen and Apprentices of the Sheet
Metal Workers in Centra! West Texas.
'We note that the Administrative Law Judge did not specifically find
that Walker's grievance was meritorious or that he would have received the
higher wage rate had the Respondent Union fairly and properly represented
him Rather, for the purposes of fashioning a remedy for the Respondent
Union's unlawful refusal to process Walker's grievance, the Administrative
Law Judge properly "presume[d]" that Walker's grievance. if fairly and
impartially processed, would have been found meritorious and would have
resulted in his receiving the contractual journeyman rate of pay.
4 When discharged. Walker had been considered an "apprentice" sheet
metal worker by the Company and was paid accordingly.
Cf. (California School of Professionil Prcholog,. 227 NLRB 1657 (1977);
(Communitv Hospital of Roanoke Valley. Inc.. 220 NLRB 217 (1975).
6Cf. Golden State Bottling (omparn, Inc., dh a Pepsi-Cola Bottling Corn-
panit of Sacramento, 187 NLRB 1017 (1971), enfd. 467 F 2d 164 9th Cir.
19721.
Walker is, of course, entitled to receive any interim raises and benefits
he would normally have received had he not been unlawfully discharged.
See F M Broadcasting Corporation, 233 NLRB 326 (1977).
ABILENE AREA SHEET METAL 179
stated to "his former job or, if that job no longer
exists, to a substantially equivalent position," we
have indicated that Respondent Abilene Sheet
Metal. Inc., must restore Walker to the position
he held at the time of his discharge (i.e.. an "ap-
prentice" position). with any interim raises and
benefits he would normally have received absent
the discrimination against him."