C. H. Heist Corp.

National Labor Relations Board - Board Decisions

Aug 4, 1980

250 N.L.R.B. 1400 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. H. Heist Corporation and Michael Mitchell.
Case 9-CA-13640
August 4, 1980
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On February 27, 1980, Administrative Law
Judge Irwin H. Socoloff issued the attached Deci-
sion in this proceeding. Thereafter, the Respondent
filed exceptions and a supporting brief, and the
General Counsel filed a brief in answer to the Re-
spondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, C. H. Heist
Corporation, Cleves, Ohio, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order.
MEMBER TRUESDALE, dissenting:
For the reasons set forth in my dissent in Gould
Corporation, 237 NLRB 881 (1978), I would find
that Respondent did not violate Section 8(a)(3) of
the Act by discharging Union Steward Michael
Mitchell.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOI.OFF, Administrative Law Judge: Upon
a charge filed on March 20, 1979, by Michael Mitchell,
an individual, against C. H. Heist Corporation, herein
called the Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Director
for Region 9, issued a complaint dated May 15, 1979, al-
leging violations by Respondent of Section 8(a)(3) and
(I) and Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended, herein called the Act. Respond-
ent, by its answer, denied the commission of any unfair
labor practices.
Pursuant to a notice, a hearing was held before me in
Cincinnati, Ohio, on November 1, 2, and 27, 1979, at
which the General Counsel and Respondent were repre-
250 NLRB No. 185
sented by counsel and all parties were afforded full op-
portunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence. Thereafter, the parties
filed briefs which have been duly considered.
Upon the entire record in this case, and from my ob-
servations of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New York corporation, maintains its
principal place of business in Clearwater, Florida, and is
engaged, throughout the United States and Canada, in in-
dustrial cleaning operations. Its Cleves, Ohio, office,
serving an area including portions of the States of Ken-
tucky, Indiana, and Ohio, is involved in this proceeding.
During the 12 months ending May 15, 1979, a repre-
sentative period, Respondent, in the course and conduct
of its business operations, derived gross revenues in
excess of $50,000 for services performed in States other
than the States of Ohio and Florida. I find that Respond-
ent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
11. L.ABOR ORGANIZATION
International Brotherhood of Painters and Allied
Trades, AFL-CIO, Local 1144, herein called the Union,
is a labor organization within the meaning of Section
2(5) of the Act.
Ill. THE UNFAIR IlABOR PRACTICES
A. Background'
The Union is the collective-bargaining representative
of Respondent's "specialized plant service workers, train-
ees and helpers" at its Cleves, Ohio (Cincinnati area), fa-
cility. The current contract between the parties, an in-
dustrywide agreement, runs from January 1, 1979, to De-
cember 31, 1981. That agreement was negotiated in De-
cember 1978, at Pittsburgh, Pennsylvania, and among the
members of the Union's negotiating committee was the
then steward at the Cleves plant, Michael Mitchell. The
contract contains, inter alia, the following clauses:
Article VIII Stewards:
Section 1. The Union shall have the right to ap-
point one chief shop steward and one alternate at
each of the area and/or regional offices of the Em-
ployer, both of whom shall be employees covered
by this Agreement ....
Section 2. The steward's duties shall consist of
seeing that all terms and conditions of this Agree-
ment are being complied with ....
Article XXI Dispute/Grievance Procedure:
Section 5. There shall be no strike or lockout,
slowdown, interference, or work interruption on
any job over any grievance or dispute while it is
Errors in the transcript are hereby noted and corrected.
1400
C. H. HEIST CORPORATION
being processed through this grievance procedure,
and until the said procedure has been exhausted. If
any employees engage in any such activity, they
may be disciplined by management without re-
course except to establish that they actually partici-
pated in or were a part of such activity ....
From February 28, 1979, until March 2, 1979, the
great majority of the bargaining unit employees at the
Cincinnati area plant, including the steward, Mitchell,
engaged in a strike, neither authorized nor sanctioned by
the Union, in protest against Respondent's action demot-
ing six employees, from full-time to part-time status, in
accordance with its interpretation of the new collective-
bargaining agreement. This "wildcat" strike was not
thereafter condoned by Respondent. On March 13, 1979,
Michael Mitchell was discharged while, at the same time,
Respondent announced that "nothing would be held
against the other employees," some 25 in number, who
had engaged in the unprotected walkout.
In this case, the General Counsel contends that Mitch-
ell was discharged, in violation of the Act, because, at
the time of the strike, he held the position of union ste-
ward and because, in that capacity, he had, prior to the
strike, engaged in protected concerted activity, includ-
ing, inter alia, a protest against allegedly unsafe working
conditions. Respondent urges that it discharged Mitchell,
not because he was a union steward, but solely because,
in its view, Mitchell "led the strike and picketing at Re-
spondent's facility" and "actively sought the support of
other individuals to join in sympathy with the strike."
B. Facts2
Michael Mitchell was employed by Respondent from
November 1976 until his discharge in March 1979. He
became assistant steward in September 1978, and, 1
month later, Mitchell was chosen as the steward at the
Cleves plant. In the latter capacity, he served on the
Union's contract bargaining committee and on an em-
ployer-employee safety committee. During his tenure as
steward, Mitchell filed numerous employee grievances
with respect to safety, wage rates, and working condi-
tions. However, the record does not reflect that he was
any more active in that regard than previous stewards.
On January 14, 1979, Mitchell sent a letter to William
J. Sheehan, Respondent's area manager at the Cleves
office, and sent copies to several individuals, including
Sheehan's superior, Thomas Graham, complaining about
the safety conditions at a particular jobsite. Thereafter,
on January 19, Mitchell was approached by Sheehan and
Foremen Ambrose Lawhorn and Ronald Carroll.3 Shee-
2 At the conclusion of the General Counsel's case in chief, Respondent
decided not to present a defense but. rather, to rely upon its motion to
dismiss the complaint for failure of the General Counsel to establish a
prima facie case of unfair labor practice conduct. Accordingly, the fact
findings contained herein are based upon a composite of the testimonial
and documentary evidence offered at the hearing during presentation of
the General Counsel's case. The record is generally free of evidentiary
conflict. All the witnesses in this case, particularly Mitchell, impressed
me as honest and forthright in their narration of events.
3 The complaint alleges, and the answer admits, that, at all times mate-
rial herein, Sheehan, Lawhorn. Carroll, and Respondent's executive vice
president, Charles H Heist 111, were statutory supervisors
han pointed his finger at Mitchell and, Mitchell testified,
asked him "where in the fuck did I get off writing a
letter like that." Sheehan told Mitchell that the letter had
gotten his "temper up" and that if he, Mitchell, wanted
trouble, Sheehan would give it to him. Sheehan further
stated that Mitchell had better watch his step and that
the next time he "stepped out of line" he "would be
gone." Afterwards, Foreman Lawhorn told Mitchell that
"he would be gone in 2 weeks" and that the decision to
discharge him had already been made. One month later,
Mitchell, accompanied by four other employees, visited
the offices of the United States Department of Labor Oc-
cupational Safety and Health Administration, OSHA, to
complain about a lack of shower facilities at the plant. In
late February, or early March, Mitchell told Lawhorn
and Carroll, about the OSHA charges and warned them
that OSHA investigators would visit the plant.4
On February 26, 1979, Sheehan posted on the employ-
ee bulletin board new seniority lists reflecting a change
in status for six Cleves plant employees, from full time to
part time, and a resultant decrease in wage rates and
benefit levels for those employees. Late that night, em-
ployee William Grimes telephoned Mitchell, at his home,
and told him that he, Grimes, and several other employ-
ees, wanted to obtain from Mitchell a list of employee
telephone numbers so that they could ascertain the feel-
ings of the plant employees concerning Respondent's
action of that day. Grimes also inquired about the
Union's position on the matter. Mitchell stated that he
had not yet conferred with the Union's business agent,
Charles Brown, and, therefore, he urged the employees
to do nothing until the Union had been consulted. When
Grimes and employees John Hall, Stephan Mossburger,
and Gary Parker insisted upon receiving the list of phone
numbers, Mitchell agreed to supply it and, shortly there-
after, the above-mentioned employees arrived at Mit-
chell's home. They informed him that they wanted to or-
ganize an employee "show of strength." Mitchell advised
them, instead, to utilize the contractual grievance proce-
dures. However, Mitchell permitted those employees to
telephone the other plant workers, from his home, in
order to arrange a confrontation with Sheehan, because,
he told them, he "wanted to be in on it" and wanted "to
know what was going on."
At 9:30 a.m. on February 27, some 20 employees gath-
ered at the plant to meet with Sheehan. The latter called
Mitchell into the office and told him that he, Sheehan,
would not meet with the employees "as a mob," but
would meet with them if they designated their assem-
blage as a "union meeting." When Mitchell delivered
that message to the employees they agreed to the condi-
tion. Sheehan then appeared and Mitchell and several
other employees presented their grievance. Sheehan re-
' In view of my disposition herein. I need not decide whether, as
urged h) the General Counsel, Mitchell's safet!-relaled complaints. his
lisit tO OSHA. and the grievance acltiities in which he engaged were
factors in Respondent's decision to discharge him While the comments
of Sheehan and Lawhorn. on January 19. tend Iot supportr, Im part, the
General Counsel's theory, the record evidence does nolt shoa that Re-
spondent thereafter harbored a lingering hostilit! Moreovcr. after Jalu-
ar) 19, and at the instance of Sheehan. there deeloped a lo,ser emplo)-
er-emplo!ee consultal.ion channel s.ith respect to soafeil maiters
1401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plied that the reclassification decision had been made at a
level higher than his and that it could not be changed at
the plant level. The employees then dispersed.
On February 28, employee Marshall Lawhorn orga-
nized a meeting of Respondent's workers, at a trailer
owned by employee Mossburger, for the purpose of con-
ducting a strike vote. Lawhorn and employee Albert
Hopkins arrived at the trailer, about 7 p.m., and proceed-
ed to telephone the workers,5 asking them to come to
the trailer. By 8:30 p.m., when Mitchell and Mossburger
arrived, some 20 to 25 employees were already there. 6
Lawhorn and Mossburger called the meeting to order
and Lawhorn asked that each employee state his views
and, then, vote either to strike, not strike, or "go with"
the majority. Mitchell urged the gathered employees not
to strike but, rather, to allow the Union to handle the
matter through the contractual grievance procedure. He
also opined that, at the least, the employees should
obtain legal counsel before taking action on their own.
Nonetheless, the tally of votes taken by Lawhorn
showed that a majority favored a strike. Immediately
after that result was announced, Lawhorn and employee
Lamont Richardson went to Respondent's facility to set
up a picket line, while employees Grimes, Hall, Rick
Haye, Ed Dunn, and Sandra Mortashed retrieved Re-
spondent's trucks, which were situated at various cus-
tomer locations, and brought them back to the plant.
Later that night, Mitchell arrived at Respondent's facili-
ty, when requested to do so by employee Hensley, who
informed him that Sheehan, Ambrose Lawhorn, Ronald
Carroll, and the police were already there. Sheehan
asked Mitchell what was going on and Mitchell informed
him that the employees had voted to strike. Ambrose La-
whorn then asked the police to arrest Mitchell, but they
declined to do so. The police officers did instruct Mitch-
ell to move the employees away from Heist property and
onto an adjacent road. Mitchell complied with that di-
rective.
The picket line' remained operative until 4:30 p.m. on
Friday, March 2, 1979, when the strikers were ordered
to return to work by a Federal district court judge. The
line was honored8 by all but 2 or 3 unit employees and,
during the course of the strike, some 6 to 12 pickets, on
a volunteer basis, were present at any given time. Em-
ployees Marshall Lawhorn, Richardson, and Mortashed
were there almost 24 hours per day. Others spent less
time at the picket site; for example, Mitchell, who was
present, "on-and-off," 8 hours per day. Several strikers
did not appear for picket duty at all.
Throughout the course of the strike, Respondent and
the Union chose to communicate with the picketers, at
L .awhorn made some 25 calls while Hopkins made 2 or 3.
Mitchell had been at the trailer from 4 to 6 and then accompanied
Mosshurger on a personal trip.
I The picketers neither patrolled nor carried signs. Rather. two signs
were placed against a barrel and the picketers "stood around the barrel"
and/or sat in their trucks.
" On March 1, employee Wesley Young was about to enter a customer
location when he was told by employee Steven Allen that he, Young.
"had better not work." Employee Ronald Lawhorn agreed, on March 1,
to join the strike, when so instructed by employees Richardson and Mar-
shall Lawhorn. Also, on March 1, employees Robert Brickner and Jackie
Carroll decided not to work after they were followed, en route to a job-
site, by employees Allen and Snow.
the plant, through Mitchell. Thus, Mitchell, accompanied
by Hopkins, accepted, in the foremen's office, three tele-
phone calls from the Union during the February 28 to
March 2 period. After each call, he delivered the
Union's message to the strikers; namely, that the strike
was illegal, in violation of the contract, and not sanc-
tioned by the Union. Mitchell also told the strikers that
the Union wanted them to go back to work and that it
would not be able to help any employee who was dis-
charged, or otherwise disciplined, for refusing to do so.
On one occasion, Mitchell informed the employees that
he had been told by the Union that he, Mitchell, had al-
ready lost his job and that the other employees would
have to decide what they wanted to do. Mitchell encour-
aged them to return to work so that they would not be
discharged. They refused. Likewise, the picketers, in-
cluding Mitchell, refused to report to work when re-
quested to do so individually by Respondent's officials.
Respondent also made that request, to the strikers,
through Mitchell. At no time during the course of the
strike did Mitchell urge the employees to remain on
strike. Rather, he urged them to return to work or, at
the least, to seek legal counsel.
Preceding and during the strike period, Mitchell was
in telephone contact with the stewards at Respondent's
plants in Pittsburgh, Pennsylvania, Marietta, Ohio, and
Dunbar, West Virginia, where Respondent had similarly
reclassified certain full-time employees. Mitchell and the
other stewards passed along reports with respect to the
situations at their respective shops and, during those con-
versations, Mitchell learned that the Pittsburgh plant em-
ployees had engaged in a 1-day walkout and that the
Dunbar plant employees had voted to strike. At no time
did Mitchell ask those stewards, or the employees they
represent, to strike or otherwise support the walkout at
the Cleves plant.
On the third day of the strike, Friday, March 2, Shee-
han and Respondent's attorney, Terry Schreader, in-
formed Mitchell and Marshall Lawhorn that Respondent
would obtain an injunction against continuation of the
strike. Mitchell so advised the picketers, who then decid-
ed to consult an attorney. Mossburger and Marshall La-
whorn located a lawyer and they, along with Mitchell,
Grimes, and Parker, went to see him. After Respondent
obtained the injunction, at 4:30 p.m., a picketer was se-
lected to inform Sheehan that the employees, on advice
of counsel, were ready to return to work. The next day,
Saturday, Mitchell telephoned Sheehan to advise him
that he, Mitchell, as an individual, was ready to return.
Thereafter, Respondent informed the returning strikers
that it did not condone the walkout and that it would
conduct an investigation of the matter. On March 3, by
letters to the Union and Sheehan, Mitchell announced his
resignation as steward.
Sheehan interviewed Mitchell on March 8, and had a
secretary record the employee's answers to a list of ques-
tions about his strike participation.s Mitchell was asked,
inter alia, whether he was steward at the time of the
9 When, at the hearing, Mitchell was shown a purported transcription
(of the questions and answers, he testified that a substantial number of his
answers may have been incorrectly transcribed
1402
C. H. HEIST CORPORATION
strike; whether he attended the meeting preceding the
strike; whether he was at the picket line; whether he
placed calls, during the strike, to other stewards; wheth-
er he directed the removal of trucks from customer loca-
tions; whether he refused Respondent's requests that he
return to work. Sheehan did not interview the other
strikers and he declined employee Allen's offer to answer
questions about his own participation in the strike. When
Sheehan asked Supervisor Carroll if he thought that
Mitchell had led the walkout, Carroll stated that he did
not think so. On March 13, Mitchell was discharged by
Sheehan and Vice President Heist.
After the Mitchell discharge, Heist met with the unit
employees and informed them that "nobody else would
be condemned for their actions during the strike but
Mike Mitchell was fired because he was the man that
held the position of union steward at that time, and he
had to get rid of somebody, that Mike held the position."
At that point, employee Vernon Fields stated that "it
wasn't right" because Mitchell had not been the leader
of the strike. Heist responded, stating that that made no
difference because Mitchell held the "postion" and,
therefore, he was the one that had to be fired.' °
Conclusions
Where, as here, employees engage in an economic
strike, in violation of a no-strike clause in the governing
collective-bargaining contract, they are vulnerable to dis-
charge. So long as the employer has not condoned the
unprotected conduct of the strikers, it may "pick and
choose" strikers for discharge. However, the choice may
not be based upon "union considerations." I Thus, while
the employer may discipline a "union steward who has
participated in an unprotected strike, or engaged in other
misconduct as an employee, the basis for discipline must
be the misconduct itself and not the employee's position
as a union official. 12
In Precision Castings Company,i3 a case in which the
governing contract required that the union, in the event
of a work stoppage, "take all reasonable steps to restore
normal operations," the employer, following an unau-
thorized strike, disciplined the union stewards because, as
stewards, they had failed to abide by their contractual
responsibility to take steps to terminate the strike. The
Board held:
The fact that the disciplined employees participated
in an unauthorized strike in breach of a valid con-
tract provision does not legitimize Respondent's
action in this situation. Respondent's freedom to dis-
cipline anyone remained unfettered so long as the
criteria employed were not union-related. In the
case before us, however, Respondent admits that
the reason for selecting these five employees for dis-
cipline was that each held the position of shop ste-
ward and, therefore, under the terms of the con-
tract, could assertedly be held to a greater degree
'° At the hearing. Mitchell categorized his role in the strike as that of
an observer for the Union, rather than a participant.
X' American Beef Packers, Inc., 196 NLRB 875 (1972).
i1 Armour-Dial,. Inc.. 245 NLRB No 123 (1979)
13 233 NLRB 183 (1977).
of accountability for participating in the strike.
However, discrimination directed against an em-
ployee on the basis of his or her holding union
office is contrary to the plain meaning of Section
8(a)(3) and would frustrate the policies of the Act if
allowed to stand.
In Gould Corporation,'4 following a wildcat strike, the
employer discharged the steward for failure to abide by
the requirements of the no-strike clause obligating union
officers to "use every reasonable effort to terminate such
unauthorized action;" to refuse to "aid or assist such
action" and to "order members to return to work." A
majority of the Board, Members Penello and Truesdale
dissenting, reaffirmed the Precision decision, holding:
Here the steward acted in concert with approxi-
mately 50 other employees, but was singled out for
discipline solely because he was the steward. He
was discharged not because of his actions as an em-
ployee, but because of his lack of actions as a ste-
ward, a legally impermissible criterion for discipline
under the Act, and one which is not validated by a
contract clause that specifies the responsibilities of
union officers while acting as union officers. The
contract is binding between the employer and the
union but does not grant the Employer the power
to enforce it by discharging union officials. The em-
ployer's recourse is against the union entity ....
In Indiana & Michigan Electric Company v. N.L.R.B., 15
and in Gould, the United States Court of Appeals
reached contrary results. In Indiana & Michigan, the
court held that union stewards, by virtue of their status
as such, have a greater responsibility than rank-and-file
employees to abide by the terms of a no-strike agree-
ment. Accordingly, the court said, stewards may be dis-
ciplined more severely for participation in an unlawful
strike than other employees since the more severe pun-
ishment is "not based merely on the officials' status but
upon their breach of their higher responsibility that ac-
companies that status, a breach that makes their miscon-
duct more serious than that of the rank-and-file." In
Gould, the court held that it was not an unfair labor
practice for the employer to have singled out for disci-
plinary discharge a union steward who participated with
rank-and-file union members in an illegal work stoppage
since the steward failed to discharge his contractual obli-
gation, as a union officer, to take positive steps to termi-
nate the work stoppage. The court ruled that the basis
for the discharge was "a breach of a duty imposed by
the office" and not "the office as such."
In the instant case, while I do not accept Mitchell's
own characterization of his role in the walkout, as that
of an observer rather than a participant, the record evi-
dence decidedly demonstrates that Mitchell was a reluc-
tant participant and, certainly, not a leader in the strike
effort. He was not an organizer of the prestrike meeting
and, at that meeting, he counseled against a walkout.
14 237 NLRB 881 (1978), enforcement denied 612 F 2d 728 (3d Cir.
1979)
'1 599 F 2d 227 (7th Cir 1979)
1403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the strike itself, he urged his fellow employees to
return to work. While the Union and Respondent chose
to utilize Mitchell to transmit messages to employees at
the picket line, there was nothing in Mitchell's conduct
during that time period from which it could be conclud-
ed that he served as a leader of the strike effort. Nor was
Respondent at the time of the discharge in possession of
contrary information. In any event, this is not a case in
which the motivation for a discharge must be pieced to-
gether from circumstantial evidence. For, on the day of
Mitchell's discharge, Vice President Heist informed Re-
spondent's employees that, while Respondent would take
no action against the other strikers, Mitchell had been
fired "because he was the man that held the position of
union steward at that time .... " Thus, as a result of
the illegal walkout, Respondent chose to discipline only
I of the 25 strikers, Mitchell, not because of his actions
as an employee and his role in the strike but solely be-
cause he was also a union official. Under Board law, Re-
spondent thus acted in violation of Section 8(a)(3) of the
Act. '
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(3) and
(1) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Respondent, C. H. Heist Corporation, is an employ-
er engaged in commerce, and in operations affecting
commerce, within the meaning of Section 2(2), (6), and
(7) of the Act.
2. International Brotherhood of Painters and Allied
Trades, AFL-CIO, Local 1144, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging Michael Mitchell for his participa-
tion in an unprotected strike, solely because of his posi-
tion as union steward, Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
i' I note that here, unlike Gould. vupra, the no-strike clause in the con-
tract does not specifically require that union officials take affirmative
steps to prevent a walkout. Nor may such a requirement be inferred from
the generalized language in the stewards clause
ORDER L7
The Respondent, C. H. Heist Corporation, Cleves,
Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees who have participated in
an unprotected strike solely because those employees are
also union stewards.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Michael Mitchell immediate and full rein-
statement to his former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority and other rights and privi-
leges.
(b) Make Michael Mitchell whole for any loss of pay
he may have suffered by reason of Respondent's discrim-
ination against him by payment to him of a sum of
money equal to that which he normally would have
earned as wages, from the date of the discrimination to
the date of Respondent's offer of reinstatement, less net
earnings during such period, with backpay to be comput-
ed in the manner prescribed in F. W. Woolworth Compa-
ny, 90 NLRB 289 (1950), with interest as set forth in
Florida Steel Corporation, 231 NLRB 651 (1977) (see,
generally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962).)
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its facility located in Cleves, Ohio, copies
of the attached notice marked "Appendix."' 8 Copies of
said notice, on forms provided by the Regional Director
for Region 9, after being duly signed by Respondent's
representative, shall be posted by it immediately upon re-
ceipt 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 Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
i" In the event no exceptions are filed, as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board. the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
in 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
1404
C H HEIST CORPORATION
APPENDIX
NoriclI. To EmPI Of t iS
PoSTI IE) BY ORI)IR OF I Ht
NA rIONAI LABOR Rt L.A ONS BOARD
An Agency of the United States Government
W ill. Nor discharge employees who partici-
pate in an unprotected strike solely because those
employees are also union stewards.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE Wlt l offer Michael Mitchell immediate and
full reinstatement to his former position or, if that
position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority and
other rights and privileges.
WE wILt. make Michael Mitchell whole for any
loss of earnings he may have suffered because of the
discrimination against him, plus interest.
C. H. HEIST CORPORATION
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