Allied Mechanical

National Labor Relations Board - Board Decisions

Jul 24, 2008

352 N.L.R.B. 880 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 110
880
Tower Industries d/b/a Allied Mechanical, Inc. and
United Steelworkers of America, AFL–CIO,
CLC. Cases 31–CA–26120, 31–CA–26135, 31–
CA–26184, 31–CA–26194, 31–CA–26276, and
31–RC–8202
July 24, 2008
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AMD MEMBER LIEBMAN
On March 13, 2008, Administrative Law Judge Wil-
liam G. Kocol issued the attached supplemental deci-
sion.1 The Respondent filed exceptions and a supporting
brief. The General Counsel filed an answering brief and
the Respondent filed a reply brief.
The National Labor Relations Board has considered
the supplemental decision and the record in light of the
exceptions and briefs and has decided to affirm the
judge’s rulings, findings,2 and conclusions and to adopt
the recommended Order.3
ORDER
The National Labor Relations Board adopts the recom-
mended supplemental Order of the administrative law judge
and orders that the Respondent, Tower Industries d/b/a Al-
lied Mechanical, Inc., Ontario, California, its officers,
agents, successors, and assigns, shall take the action set
forth in the supplemental Order.
Jerry George and Arthur Yuter, Esqs., for the General Counsel.
Patrick W. Jordan, Esq. (Jordan Law Group), of San Rafael,
California, for Allied Mechanical.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This com-
pliance case was tried in Los Angeles, California, on December
3 and 4, 2007, and on February 5, 2008. In this case the Board,
among other things, ordered Tower Industries d/b/a Allied Me-
chanical, Inc. (Allied Mechanical) to make Timothy Hays and
Walter Reddoch whole for any loss of earnings and benefits

1 The underlying decision is reported at 343 NLRB 631 (2004).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
they suffered as a result of their unlawful discharges.1 The
compliance specification issued on September 25, 2007, and
Allied Mechanical filed a timely answer. Concerning Hays, the
compliance specification alleges that he is owed $31,442.51 in
backpay and $3,793.73 in benefits, plus interest. Allied Me-
chanical agrees that these figures are correct. Concerning Red-
doch, the compliance specification, as amended, alleges that he
is owed $76,284.41 in backpay and $6,002.82 in benefits, plus
interest. Allied Mechanical disagrees. The main issue is
whether Reddoch adequately searched for interim employment.
A secondary issue concerns the appropriate measure of over-
time hours.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Allied Mechanical, I make the
following
Findings of Fact
Reddoch worked as a machinist for Allied Mechanical until
his unlawful discharge on January 23, 2003. His backpay pe-
riod runs from January 24, 2003,2 through August 30, 2004,
when he returned to work for Allied Mechanical. The backpay
period spans seven calendar quarters. During the last four cal-
endar quarters Reddoch had substantial interim earnings and his
search for work during that time is not challenged. Rather,
Allied Mechanical challenges the adequacy of Reddoch’s
search for work during the first 35.7 weeks of his backpay pe-
riod.
Reddoch worked at Allied Mechanical as a CNC operator.
He did not have experience or skills performing other types of
specialized machinist work. Reddoch credibly testified that he
was unemployed for the first time in his adult life after Allied
Mechanical unlawfully discharged him for supporting the effort
to unionize its employees. On every other occasion when he
changed employers, Reddoch finished at one employer on a
Friday and started a new one on the following Monday. As
such, I infer he had little experience in finding work quickly
under the circumstances following his discharge. Moreover,
Reddoch was not highly computer literate and had to learn the
process on his own; he became more skilled as the backpay
lengthened. As his resume shows, he has been employed his
entire adult life and therefore has shown little propensity for
willful idleness.
Within a week after his termination and for the first time in
his life Reddoch created a resume. He placed that resume on
the web sites of monster.com, careerbuilder.com, and Ya-
hoo!.hotjobs. Thereafter he searched these web sites three or
four times a week for work and contacted employers listed
there either by email, fax, or telephone. He searched a local
newspaper, the Free Enterprise, and the Los Angeles Times in
their Sunday editions to find work. He also searched another
local newspaper, the Inland Valley Daily Bulletin, on a daily
basis. During the first week after his termination and continu-
ing thereafter he called the advertisements for machinist posi-
tions that he saw in the newspapers. That first week he also

1 343 NLRB 631.
2 All dates are in 2003, unless otherwise indicated.
ALLIED MECHANICAL, INC. 881
called a friend, Andy Cabrera, who works at a machine shop
where Reddoch used to work. Cabrera told Reddoch that he
did not think the employer was hiring machinists and that four
machinists had left that employer and gone elsewhere. Red-
doch asked both of his sons-in-law to ask their friends if they
knew any business that was hiring machinists. He called friends
to see if they knew if any businesses that were looking for ma-
chinists. He called a couple of places where he used to work
and drove around looking for help wanted signs, all to no avail.
He also registered to obtain unemployment benefits. After a
few months he began getting the Los Angeles Times on a daily
basis and searched there for work daily. During the first 3 or 4
weeks Reddoch and Hayes, the other discriminatee involved in
this case, on at least three occasions went to look for work to-
gether.3 Reddoch looked at the local Yellow Pages for machine
shops. He remembered seeing about 15 listings. Some shops
performed the type of work for which he had no experience.
He called three shops but no one answered the telephone, lead-
ing Reddoch to conclude that they were no longer in business.
Reddoch submitted forms to the appropriate state agency to
report his search for work. Portions of copies of those forms
are illegible. Nonetheless, based upon Reddoch’s credible
testimony, on January 30, he applied at Contour Aerospace, on
February 3, he sought employment at Program Composites,
Incorporated, and on February 5, he applied at 4-Flight Aero-
space. Although not listed on the form, during that time period
Reddoch also called Certified Fabricators, Incorporated; Red-
doch had worked there before working for Allied Mechanical.
He asked to speak to Donna Self, who was the HR person when
he had worked there, but Reddoch was told that she no longer
worked there and that they were not hiring.4 On February 13,
he went to the 4-Flight facility, where he had earlier sent in an
application; he was told he was overqualified. On February 20,
he was interviewed by Program Composites, whom he had
called on February 3. He was interviewed by three persons and
was told that they would notify him by the next week. During
this same time period he saw an advertisement in the Inland
Valley Daily Bulletin for a position at MDI and he applied
there. On February 27, he applied at Loud Manufacturing but
was told that they had no work at the time; on March 3, he ap-
plied at Team Losi but was told he was overqualified. On
March 11, Reddoch applied via the Internet at Electric Gear but
received no answer. The next day he applied at Union Pacific
through its web site for a scale inspector position. He applied
through the internet on March 18, at Commercial Machining
and Engineering but received no reply. During this time period
he noticed that Certified Fabricators, Incorporated had an ad-
vertisement on either the Monster or Careerbuilders web site;

3 Hayes corroborated Reddoch’s testimony that they searched for
work together.
4 This is an example of why I have decided to credit Reddoch’s tes-
timony concerning his search for work. I find this type of detail to be
persuasive. Not all of Reddoch’s testimony is so detailed; Allied Me-
chanical argues Reddoch’s testimony is therefore not credible. I dis-
agree. After all, these events occurred 5 years ago. It is not surprising
that some of the details of his search for work may fade from memory.
My observation of Reddoch’s demeanor convinced me that he was
being accurate as his memory allowed.
he again applied, this time via the web site. On March 27, 28,
and April 3, he applied at Saint Gobin, Clayton Industries, and
PWP, respectively; he received no replies. On April 7, 9, and
14, he applied at Ultramet, NED Industries, and Excel, respec-
tively, but again received no replies. On April 22, 24, and 27,
he applied at Cutting Edge, Roncely Plastics, and Richo Tech,
respectively. On May 6, 8, and 9, he applied at Aero (in
Gardena), Tri (in Huntington Beach), and New Century, respec-
tively. On May 27, Reddoch went to Roncely Plastics for a
second interview. On June 3, Reddoch applied at CCI Valve.
Every time he saw an advertisement from 4-Flight Aerospace
he applied, doing so again on June 9. On June 19, he applied at
Ronco Engineering and on June 19, at Lockheed Martin. On
July 7, he applied again at 4-Flight and on July 8, he applied at
Capo Industries. On July 14, Reddoch went for an interview at
Capo Industries. On July 24, he applied at S&B Filters; on July
28, that company replied that Reddoch was not qualified for the
position. On August 3, he applied at Union Pacific for a train
service inspector. On August 12, he applied at Flathers Preci-
sion and on August 13, he applied at Summit Precision. On
September 2, 3, 11, 15, 16, 18, 19, 25, and 29, he applied at
Miller Brewing, Caco, Barry Controls, Dart Container,
Northrup/Gruman, Mag Instruments, Cummings Aerospace,
Harte Enterprise, and Burlingame Industries, respectively. On
October 2, Reddoch applied at Waterstone.
Reddoch began working again as a machinist in early No-
vember. His interim employer was located in Anaheim, Cali-
fornia, this required Reddoch to drive his car 45 miles more per
day to get there and back than he would have traveled had he
remained employed at Allied Mechanical.
Legal Principles
I apply the following settled legal principles. An unlawfully
discharged employee must make a reasonable search to find
interim employment. Arlington Hotel, Co., 287 NLRB 851
(1987), enfd. in relevant part 876 F.2d 678 (8th Cir. 1989). In
assessing the reasonableness of that effort the entire backpay
period is examined and not just isolated portions. Electrical
Workers, Local 3 (Fischbach & Moore), 315 NLRB 1266
(1995). The Board also may examine the employee’s age, edu-
cation and skills, and employment history. United Aircraft
Corp., 204 NLRB 1068 (1973). The General Counsel must
establish gross backpay owed an employee. It is then the re-
spondent’s burden of establishing a willful loss of interim earn-
ings. Millennium Maintenance & Electrical Contracting, 344
NLRB 516 (2004).
Recently, the Board has required unlawfully discharged em-
ployees to begin the search for interim employment with the 2-
week period following their unlawful discharge. Grosvenor
Resort, 350 NLRB 1197, 1200–1201 (2007), In that case the
Board focused its examination on individual months and calen-
dar quarters in determining whether there has been an adequate
search for work despite the fact that the employees found in-
terim employment during other months and calendar quarters.
Id. at 1202–1203. And while the Board acknowledged that
some of the employees were old, had limited skills and educa-
tion, did not speak English well, lacked access to public trans-
portation, and had been employed by the respondent for years if
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD882
not decades prior to their unlawful discharge, these factors did
not appear to carry much weight. Id., slip op. at 3. In St.
George Warehouse, 351 NLRB 961 (2007), the Board stated
that the contention that a discriminatee failed to make a reason-
able search for work generally has two elements: (1) there were
substantially equivalent jobs within the relevant job market, and
(2) the discriminatee unreasonably failed to apply for those
jobs. The Board in that case altered the existing legal analytical
framework by placing the burden of going forward with evi-
dence that the discriminatee made reasonable efforts to apply
for jobs, shifting it from the respondent that had unlawfully
fired the employee to the unlawfully discharged employee and
the General Counsel. The Board made clear, however, that the
burden of persuasion remained with the respondent; that is, a
respondent still had to establish, based on a preponderance of
the evidence that a discriminatee failed to make a reasonable
search for work.
Allied Mechanical argues that Reddoch applied in person at
only 14 shops during the disputed period. But it does not ex-
plain why Reddoch’s online applications, in this increasingly
computerized environment, should be discounted. Allied Me-
chanical argues that “there are in excess of 3000 machine shops
in the relevant area,” but it does not explain why it would re-
quire Reddoch to apply if those shops were not hiring machin-
ists nor does it explain why Reddoch’s decision to focus his
efforts on those machine shops that were hiring was unreason-
able. Next, Allied Mechanical points to help wanted ads for
machinists that appeared in the Inland Valley Daily Bulletin, a
newspaper that Reddoch used in his search for work. The Sun-
day edition of that paper generally had one or two such ads, but
sometimes as many as five or six. But I accepted those ads into
evidence for the limited purpose of assessing the impact they
might have on Reddoch’s credibility. I now explain why I
affirm that ruling. As indicated above, copies of the forms
Reddoch used to document his search for work were often il-
legible. Although Allied Mechanical was given the forms be-
fore the hearing, their use to Allied Mechanical was limited
until Reddoch, at the hearing, deciphered them. In fairness to
Allied Mechanical, and over the objections of the General
Counsel, I granted what became 2-month continuance so that
Allied Mechanical could challenge Reddoch’s testimony, but
limited to his credibility concerning his search for work. At the
reconvened hearing Allied Mechanical offered the advertise-
ments from the Inland Valley Daily Bulletin. Those documents
normally would have been part of Allied Mechanical’s case;
they were unrelated to the purpose for which I granted the con-
tinuance. I therefore received them in evidence solely for
credibility purposes. I have considered them for that purpose
and I find nothing therein persuades me that Reddoch’s testi-
mony was not credible. To the contrary, given the fact that
after the 2-month continuance Allied Mechanical did not seri-
ously challenge Reddoch’s testimony concerning his search for
work, I am all the more persuaded of Reddoch’s testimony.
Allied Mechanical relies on the testimony of John David
Belzer. Belzer is president and chief operating officer of TCI
Precision Metals, a family owned business located in Gardena,
California. For many years Belzer has also served as an officer
at the Los Angeles chapter and at the national level of the Na-
tional Tooling and Machining Association. The NTMA repre-
sents machining job shops employing about 25–35 employees.
The NTMA sponsors training centers in Southern California for
the purpose of training persons to become machinists. In 2003
it operated four such training centers in the Los Angeles area.
About 90 percent of the graduates of the training centers found
jobs as machinists. However, these graduates were placed in
entry level machinist positions, unlike Reddoch who was an
experienced machinist. Belzer identified 43 businesses in the
greater Los Angeles area that employed machinists, but Belzer
conceded that he did not know whether any of those businesses
were hiring machinists in 2003. Belzer also identified eight
businesses in the same general location as Allied Mechanical
that employed machinists. Finally, Belzer pointed out that
there were five companies that he had used as a source for em-
ploying machinists on a temporary basis. Belzer is acquainted
with Mark Slater, Allied Mechanical’s president. Slater too
served as Los Angeles chapter president of the NTMA. I have
decided not to credit Belzer’s testimony beyond the largely
undisputed matters cited above. Belzer testified under oath that
the market for the machining industry was in recovery in 2003,
the time period Reddoch was looking for work. Yet on May
17, 2003, Belzer told a local newspaper that the market for job
growth in metal-forming companies was flat. He also said that
they had hit the bottom of the trough and were bouncing on the
bottom. Belzer’s demeanor while trying to reconcile the two
contradictory statements was entirely unconvincing. I credit
Belzer’s 2003 statements over his courtroom testimony. More-
over, Reddoch credibly testified that Belzer’s company per-
forms mostly grinding type of machine work and he did not
have the skills or experience to do that work. Reddoch had
attended classes at the NTMA and after he was fired by Allied
Mechanical he contacted that organization to inquire if his ap-
prenticeship classes there could be converted into actual college
credits. But he did not use the NTMA as a resource for seeking
employment because he concluded, not unreasonably, that
given Slater’s leadership roles in that organization and because
Slater had unlawfully fired him for his union activities, finding
a job through that organization would be unlikely. More im-
portantly, Reddoch was unaware that the NTMA assisted any-
one other than its recent trainees in finding work and indeed,
the record does not indicate that it does.
Allied Mechanical also relies on the testimony of Robert
Page. Page and his wife own Nutek Industrial Sales, an indus-
trial supplier for the machining industry. He testified he buys
mailing lists for the industry to mail literature to customers
“and there’s over 3,500 machine shops” in the Southern Cali-
fornia area. He defined this area as ranging from Bakersfield
on the north to Mexico on the south. Although there were no
objections raised to this testimony, I note it is hearsay at several
levels, and, because the testimony appeared to be reciting the
content of a document, that document is the best evidence of its
content. I take this into account in discounting this testimony.
He testified that sales in his business increased 14 percent in
2003 compared to 2002. But he did not testify as to when in
2003 that increase in sales occurred, nor whether the increase in
sales resulted in Nutek hiring any additional machinists. Page’s
testimony generally lacked specifics and was at times exagger-
ALLIED MECHANICAL, INC. 883
ated; his demeanor was unpersuasive. Accordingly, I find little
in his testimony that is useful in resolving the issues in this
case.
Robert Santana is a market manager for Benchmark Staffing,
a division of Robert Half, International. Benchmark is a spe-
cialized staffing company that focuses on placing persons in
manufacturing and distribution jobs. In 2003 Santana was the
branch manager for Benchmark’s Ontario, California branch.
He testified that in 2003 if he had 10 orders he would be able to
fill only 2 or 3 of them. He did not give any figures concerning
the actual number of requests Benchmark had for machinists in
2003. He testified that he searched Benchmark’s computer
records and found no record that Reddoch ever sought em-
ployment through Benchmark. Reddoch admitted that he never
searched for staffing companies in telephone books because it
never occurred to him to do so. Reddoch credibly testified that
he was unaware of the fact that Benchmark was a staffing
agency and therefore made no effort to seek employment
through it. But the Board does not require that unlawfully dis-
charged employees have comprehensive knowledge of the full
range of job opportunities; instead, reasonable efforts to secure
interim employment suffice.
Patricia Louise McNeil works as a human resources adminis-
trator for Votaw Precision Technologies. Votaw is a precision
machine shop for aerospace industry. Votaw keeps a database
of machinist applicants. McNeil testified that she searched that
database for a record that Reddoch had applied there but found
no such record. Reddoch credibly explained that he called
Votaw and asked to speak to Dick Berg, whom he knew as
Votaw’s vice president. Reddoch explained to the receptionist
that he was looking for work. The receptionist told him he
would have to call back, but he never did so. But in light of the
more comprehensive effort to secure interim employment de-
scribed above, Reddoch’s failure to follow up in one instance
appears isolated and is insufficient to taint the rest of his search
for work. Prince Herzog, the CEO of Tri-Models, Inc., located
in Huntington Beach, testified that he had no record that Red-
doch submitted an application to his company. But this testi-
mony, viewed in the context of the many contacts that Reddoch
made to employers, does not persuade me that Reddoch’s tes-
timony was not credible.
Finally, Allied Mechanical points to the testimony of Mark
Slater, Allied Mechanical’s president, who testified that Allied
Mechanical hired machinists in early 2003 but it laid off ma-
chinists in October 2003. But it is not surprising that Allied
Mechanical hired machinists in early 2003; it had unlawfully
fired Hayes and Reddoch at that time.
Although the Board in Grosvenor seemed to focus exclu-
sively on the numbers of applications submitted by the unlaw-
fully discharged employees, the General Counsel argues:
To engage in an adequate search for work, a discriminatee
may do more than merely submit applications. Creating and
maintaining a resume, looking through a phone book, inquir-
ing about jobs from friends and family, documenting job
searches, looking for job postings online and in newspapers,
and registering with various employment services also consti-
tute reasonable searches for work.
I agree. Viewed in its entirety, Reddoch satisfied his obligation to
search for interim employment.
Turning now to the remaining issue, John Travis Williams,
the compliance officer, computed the overtime hours Reddoch
would have worked by computing a weekly average of the
overtime hours Reddoch actually worked in the nearly 6-month
period beginning August 1, 2002, to his termination on January
23, 2003, and then projecting that number forward into the
backpay period. Allied Mechanical suggests a different
method. This method also uses a 6-month period preceding
Reddoch’s termination, computes a weekly average, and pro-
jects the average into the backpay period. However, unlike the
General Counsel’s pretermination period, Allied Mechanical
would eliminate the first 4 weeks preceding Reddoch’s termi-
nation—a period when Reddoch worked overtime—and add 5
weeks at the other end of the period in June and July—a period
when Reddoch worked no overtime. As the General Counsel
points out in his brief, the same method was used in computing
Hayes’ backpay and Allied Mechanical did not object to the use
of that method for Hayes. Allied Mechanical does not explain
in its brief why its method would result in a more accurate de-
piction of the overtime Reddoch would have worked than the
General Counsel’s method. I conclude the General Counsel’s
method is reasonable. Performance Friction Corp., 335 NLRB
1117 (2001).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Tower Industries d/b/a Allied Mechanical,
Inc., its officers, agents, successors, and assigns, shall make
whole the individuals listed below, by paying them the amount
following their name, with interest to be computed in the man-
ner prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1983), minus tax withholdings required by Federal and
State law:
Timothy Hayes—$35,236.24
Walter Reddoch— 84,286.93

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.