Industry General Corp.

National Labor Relations Board - Board Decisions

Sep 8, 1976

225 N.L.R.B. 1230 (N.L.R.B. 1976)

1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industry General Corporation and John E. Byers.
Case 25-CA-7634
September 8, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
and concerted activities for the purpose of collective bar-
gaining and mutual aid and protection," in violation of
Section 8(a)(3) and (1) of the Act.
Upon the entire record I and my observation of the wit-
nesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION OF RESPONDENT
On June 25, 1976, Administrative Law Judge Ber-
nard Ries issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
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.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' 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, Industry General Cor-
poration, Memphis, Tennessee, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
BERNARD RIES, Administrative Law Judge: Upon a
charge filed on January 2, 1976, and a complaint issued on
February 24, 1976, and amended on April 6, 1976, a hear-
ing was held in this case in Logansport, Indiana, on May 6,
1976. The complaint, which was denied in all material re-
spects by Respondent, alleges that Respondent discharged
John E. Byers because he `joined and assisted the Union,
acted as its steward, and engaged in other union activity
The Respondent, a Tennessee corporation, at all materi-
al times has maintained its principal place of business at
Memphis, Tennessee, with construction sites in various
states of the United States, including construction sites at
Logansport, Indiana, and Delphi, Indiana. During the year
preceding issuance of the complaint, a representative peri-
od, Respondent purchased, transferred, and delivered to
the Logansport facility goods and material valued in excess
of $50,000 which were transported to Logansport directly
from States other than the State of Indiana. By its answer,
Respondent admits, and I find, that it is now, and has been
at all material times, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find , as the complaint alleges and the answer admits,
that Local Union No. 379 of the International Association
of Bridge , Structural and Ornamental Iron Workers, AFL-
CIO, is now, and has been at all material times, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
At least as early as May 1974, Respondent was engaged
in a construction project in Logansport, Indiana, called the
"Farm Bureau Coop project." In September 1974, John
Byers, the Charging Party here, was employed as an iron-
worker on the project. Subsequently, Byers was laid off for
economic reasons, but he later returned to Respondent's
employment in April 1975. About June 1975, Byers be-
came the recognized job steward for ironworkers on the
project, on behalf of Local Union No. 379, International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, which was the collective-bargaining
representative of the ironworkers.
Beginning in September 1975, Gerald Nipple, also re-
ferred to as "Hank," who had been a regular foreman on
the project since October 1974, was appointed general fore-
man of the project by Field Superintendent Harold Reyn-
olds. Other ironworker foremen on the project, conceded
to be statutory supervisors, were Robert Peters and John
Reppert. Another Nipple of significance to this case is
Hank Nipple's brother, Lorence (Andy) Nipple, the busi-
ness agent for Local No. 379.
On Saturday morning, October 4, 1975, Field Superin-
tendent Reynolds received word that there was an emer-
gency situation at the Logansport jobsite which required
Certain errors in the transcript have been hereby noted and corrected
225 NLRB No. 182
INDUSTRY GENERAL CORP.
the employment of ironworkers. Reynolds testified that he
attempted to contact Andy Nipple, the union business
agent , and John Byers, the steward, to no avail. He then
called General Foreman Hank Nipple and told him to
round up some men to do the work. Reynolds testified that
he called Byers because "it is mandatory. He is the job
steward, he would have to be notified, or they would throw
us in violation." At some point on that Saturday morning,
Hank Nipple, his son Chris, and an ironworker named El-
bert Brewer arrived at the construction site and began to
perform the repair work.
About 8:30 a.m. on that Saturday, Robert Peters, who
had been Byers' immediate foreman for some 3 months
prior thereto, called Byers at home and told him that there
were three men working on the project without a steward
being present. Peters had gone to the project on a personal
errand and had seen the work being done. While there, he
had asked Brewer where Byers was and had told him that
he was going to call Byers "because it wasn't right." After
the call from Peters, Byers drove out to the project, arriving
there about 10 or 10:30 a.m. He made his presence known
to the three men, spoke inconsequentially to Brewer, vis-
ited his two sons, who were elsewhere employed on the
project, and returned home.
Later that day Byers had a telephone conversation with
Foreman Peters, in which he told Peters that he had ascer-
tained that the men had been working on the jobsite with-
out a steward, that they were "going against the rules and
regulations," and that he intended to go to the union hall
in Lafayette on Monday to file charges against them.2 He
informed Peters that he would not arrive at the jobsite until
about noon on Monday.
On Monday, October 6, Byers drove to the union hall in
Lafayette. After paying up his back dues and assessments,
he asked Business Agent Andy Nipple to give him the ap-
propriate forms for bringing internal union charges against
other members. He specified that he needed sufficient
forms for charges against three members. Andy Nipple had
been serving as union business agent for about 4 years, but
he had never received a request for such forms, and he had
some difficulty in finding them. When he finally collected
them and handed them over to Byers, Nipple said, accord-
ing to Byers, "You are going to stir up a lot of trouble if
you go through with this." Byers replied, "Yes." He left the
union hall. Byers candidly testified that he did not, in so
many words, tell Andy Nipple the basis for the charges he
intended to file or the indentity of the members he intend-
ed to charge. Byers knew that Andy Nipple was the brother
of General Foreman Hank Nipple. Byers returned to the
construction site around noon and worked for the remain-
der of the day under the supervision of Peters.
On October 7, at 7:30 a.m, Byers was called into a
meeting by Hank Nipple. Also present were Foremen Pe-
ters and Reppert, and another brother of Hank Nipple,
Richard Nipple 3 Hank Nipple said, "I don't know whether
2
Hank Nipple testified that he has been a union member for 30 years It
is apparent from the record, although not explicit therein, that Nipple's son
and Brewer were also members of the Union
3 Richard Nipple was a rank-and-file ironworker until the conclusion of
this meeting , as described infra
1231
you guys know it or not, but I am general foreman again."
He then told Byers, "Byers, you are fired." Byers asked,
"Did you notify the hall?," and Hank Nipple replied, "Last
night." 4 Nipple further told Peters that he was "back in the
gang," and announced that Reppert and Richard Nipple
were his foremen as of then. Nipple gave no reason to
Byers for the termination. Peters quit on the spot. Due to
the operation of the 24-hour notification rule, Byers was
permitted to work 8 hours on October 7 and 2 hours on
October 8. At the end of Byers' 2 hours of work on October
8, Hank Nipple gave him his check and Byers departed the
project. The check stub contains the words "unsatisfactory
work" as the reason for Byers' termination.
On October 8, Byers filled out the intraunion charge
forms against Hank Nipple, Chris Nipple and Elbert Brew-
er and mailed them by registered mail. As of the instant
hearing, May 6, 1975, Byers had received no word from
Business Agent Andy Nipple or any other union represen-
tative regarding the charges that he had filed on October 8.
Hank Nipple, who had been working at the project since
October 1974, testified that he had occasion over the prior
year to observe the performance of Byers.5 He described
that performance as "very poor." He testified that "every
time I would see him, he would be sitting on his can." He
further stated that he had observed that, on the average of
twice a week, Byers was anywhere from 1 to 2 hours late in
arriving for work, and that he would leave early.
Nipple testified that while he had seen other nonworkers
on the job sitting around, no one had done it as frequently
as Byers. He further testified that he had laid off two or
three other employees for cause, but named only one.' He
said he told that employee that he was "laid off." In ex-
plaining why he told Byers that he was "fired," he stated,
"You can't lay off a steward, you have got to fire him"
Even though Nipple was the general foreman, he per-
formed craft work with his own gang of three-four iron-
workers; Byers had worked directly for Nipple "very lit-
tle." Nipple conceded that he had not consulted with
Peters on the decision to fire Byers. Under cross-examina-
tion, Nipple expanded his testimony to indicate that he saw
Byers sitting around "every day," and then contracted it to
"practically every day." He had begun to notice this im-
proper behavior by Byers as early as late 1974 or early
1975. Nipple admitted that Reppert, the foreman who su-
pervised Byers prior to Peters, had never complained to
him about Byers; Peters testified without contradiction
that he also had not complained about Byers.
According to Nipple, he made the decision to discharge
Byers on Monday morning, when Byers did not arrive at
work on time. He estimated that he reached the decision at
8.30 or 9 a.m 7 Nipple said that after he made the decision,
The reference here was to a requirement that before a job steward is
discharged, the Union must be given 24 hours' notice
5 Although at one point, there were as many as 40 ironworkers on the
project, perhaps 12 or so were employed as of October 6
6 Field Superintendent Reynolds testified that he did not believe that any
employee had been terminated for cause prior to Byers' discharge Exfore-
man Peters testified that employees had been laid off for "lack of work" and
"lack of ability to do the work," but did not indicate that any employee had
been terminated for poor attendance or loafing
7 Byers' starting time was scheduled at 7 30 a in
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he called his brother, the business agent, and told him that
he was going to have to fire the steward.
Discussion and Conclusions
The issue presented is whether Respondent, through its
supervisor Hank Nipple, discharged John Byers on Octo-
ber 7 because Nipple was angered at Byers' expressed in-
tention to file internal union charges against Nipple and
others. If in fact Byers was discharged for that reason, such
conduct would clearly constitute prohibited discrimination
in violation of Section 8(a)(3), and restraint and coercion
of Byers in violation of Section 8(a)(l). Western Extermina-
tor Company, 223 NLRB 1270 (1976)
There is no direct evidence that Hank Nipple was aware
on October 7, when he notified Byers of his discharge, that
Byers had taken steps to initiate charges against Nipple
and the other two employees who had performed work on
thejobsite the previous Saturday. Byers testified that when
he obtained the charge forms from Andy Nipple on Octo-
ber 6, he did not tell him the purpose for which he intended
to use them. Byers did testify, as noted, that Andy Nipple
said to him, "`You are going to stir up a lot of trouble if
you go through with this." I credit Byers, who seemed a
straightforward witness, over Andy Nipple's denial. The
statement strongly implies that Andy Nipple was aware of
the circumstances which had induced Byers to ask for the
forms.'
Although Byers and Peters both credibly testified that
Byers had told Peters on Saturday that he was going to the
union hall on Monday to file charges, and, although Peters
was at the time a statutory supervisor, whose knowledge
might technically be imputed to Hank Nipple, Peters' testi-
mony gives every indication that he said nothing to Hank
Nipple about the information conveyed to him by Byers on
Saturday. Since Peters appeared as a witness for the Gener-
al Counsel, and testified that he could not recall telling
anyone about Byers' Monday morning errand, I infer that
Peters did not relay to Hank Nipple the information that
Byers had gone to the union hall on Saturday morning to
pick up charge forms in order to file charges against Nipple
and the others.
The absence of direct proof of Hank Nipple's knowledge
of this event, of course, is no barrier to finding that such
knowledge existed. It is established that circumstantial evi-
dence may supply the predicate for a finding of knowledge
Many years ago, in N L.R.B. v. Link-Belt Company, 311
U.S. 584, 602 (1941), the Supreme Court held, "The Board
was justified in relying on circumstantial evidence of dis-
crimination and was not required to deny relief because
there was no direct evidence that the employer knew these
men hadjoined Amalgamated and was displeased or want-
ed to make an example of them." Reliance on the circum-
stances surrounding an alleged discrimination has become
standard. Angwell Curtain Company, Inc v. N L.R B, 192
8 Andy Nipple testified, contrary to Byers, that Byers said to him on
October 6 that "if they paid him for Saturday, he probably wouldn't need
[the forms] " Although I found Andy Nipple to be an unconvincing witness,
such a statement, had it been made, would also have tended to put Andy
Nipple on notice of the reason for filing charges
F.2d 899, 903 (C A. 7, 1951); N.L.R.B. v. Dove Coal Com-
pany and Lark Coal Company, 369 F.2d 849, 851 (C.A 4,
1966); N.L R.B v. Pembeck Oil Corporation, 404 F.2d 105,
110 (C.A 2, 1968); N L.R.B. v. Lawson Printers, Inc., 408
F 2d 1004, 1005 (C.A. 6, 1969); N.L R B. v. Ampex Corpo-
ration, 442 F.2d 82, 86 (C.A 7, 1971); N L R.B. v. Fred
Stark, et al., 525 F.2d 422, 431, fn. 8 (C.A. 2, 1975)
In the present case , the evidence shows that Byers ap-
peared at the jobsite on Saturday morning and made his
presence known to Hank Nipple and the other two em-
ployees then working Nipple knew very well that union
rules required that a steward be present on the job while
work was being performed;' in fact, he testified that em-
ployee Brewer was appointed as an ad hoc "steward" for
the work that morning. When Byers went to the union hall
on Monday morning to pick up the charge forms, it was,
according to Business Agent Andy Nipple, the first time in
his 4 years as business agent that anyone had attempted to
secure such forms in order to file charges against other
members. Andy Nipple also testified that he knew that
steward Byers was working on the Logansport project.
Brothers Hank Nipple and Andy Nipple both reside in
the tiny community of Rockfield. Andy Nipple testified
that after Byers had come into the hall and picked up the
charge forms, he received a telephone call from his brother
Hank informing him that Byers was to be discharged. He
further testified that he said nothing to his brother about
Byers having been at the hall earlier that morning to pick
up charge forms. He did, however, concede that he found
out on Monday morning that there had been work per-
formed on the site on Saturday. He could not remember
the source of his information precisely: "I think some of
the members come in and said something about it." I find
completely incredible Andy Nipple's description of what
he claimed to be his entire conversation with his brother on
Monday morning: "He dust told me Mr. Byers' work was
unsatisfactory and he was going to fire him." Both brothers
were unpersuasive witnesses , and I have no doubt about
the fact, given the attendant circumstances, that Andy Nip-
ple informed Hank Nipple on Monday morning that Byers
had been at the hall to pick up the charge forms. I further
have no doubt, in these circumstances, that Hank Nipple
knew exactly why Byers was preparing to file charges,10
and that he thereafter discharged Byers because of his pro-
tected union activities.
Further support for this conclusion may be derived from
the clearly frivolous reason given at the hearing for the
discharge of Byers at this particular time. Byers appears to
have had an acceptable work history; he had worked in the
trade for 16 years for some 70-80 employers, and had nev-
er previously been discharged. As indicated, however,
Hank Nipple testified that Byers had been consistently late
9 Respondent's brief notes that "the local union rules call for a Union
Steward to be present during work," a fact which Byers testified to without
contradiction
10 That Hank had already informed Andy of the Saturday events and of
the possibility that Byers might initiate charges is indicated by Andy's state-
ment to Byers, You are going to stir up a lot of trouble if you go through
with this " That Hank might have anticipated such charges is suggested by
Peters' testimony that he told Brewer on Saturday morning that he was
going to call Byers to tell him that the men were working without a steward,
a remark that Brewer likely communicated to Hank Nipple
INDUSTRY GENERAL CORP 1233
for many months and that every time Nipple saw Byers, he
was loafing. This characterization of Byers' work perfor-
mance was denied by ex-foreman Peters, who appeared as
a witness for the General Counsel Foreman Reppert, who
was still employed by Respondent at the time of the hear-
ing, also gave testimony, on Respondent's behalf, which
hardly squared with that given by Nipple. He testified that
during the summer of 1975, when Byers worked directly for
him for about 3 months, Byers was "late a few times," was
"probably late a few more times ... than anybody else in
my gang," and that he saw Byers loafing on some occa-
sions, at which times Reppert "kidded him about drinking
coffee." He stated that he recalled a single occasion when
Byers was as late as 1-1/2 hours in arriving at work Rep-
pert stated that "there probably" were other employees
who had also been as late as 1-1/2 hours Reppert testified
that he made no complaint to his superiors about Byers'
work performance." I credit the testimony of Byers that,
during his entire employment with Respondent, he was late
perhaps 1/2 hour for a total of 10 times, that he may have
been late as much as an hour on two or three occasions,
and that he was, in one instance, 1-1/2 hours late in arriv-
ing, about 2 months prior to his discharge.12 The record
shows that it was not uncommon for employees to be late;
in fact, employees were usually not docked for tardiness. 13
From the testimony given by Hank Nipple, one might
conclude that an employee more unsatisfactory than Byers
had seldom come down the pike in the annals of employ-
ment history. Yet neither Peters nor Reppert, Byers' two
foremen over a 6-month period, had ever complained
about him. Although Hank Nipple had been the general
foreman for 1 month prior to Byer's discharge,14 he had
taken no steps to discipline or discharge Byers (who had
assertedly been I to 2 hours late on the average of twice a
week, who left early, and who was allegedly observed loaf-
ing "practically every day") until the morning after Byers
secured forms from Andy Nipple with the intention of
bringing intraunion charges against Hank Nipple and the
other two employees. Somehow, Respondent had managed
to endure Byers' outrageous work performance (as so de-
scribed by Hank Nipple) until the day after Byers set about
to file union charges against Nipple. According to Nipple,
he made the decision to fire Byers about 8:30 or 9 a m.,
when Byers was only 1 or 1-1/2 hours late for work. He did
not seek out Foreman Peters to ask if Byers had called to
indicate why he was not in attendance, nor did he consult
11 I discount the testimony of Ralph Cobbs, a witness for Respondent
who was employed by Respondent at the time of the hearing His testimony
about Byers' attendance was most unclear and uncertain, he was a very
nervous witness, and he is a close friend of Field Superintendent Reynolds
12
Other testimony by Byers, that he was late "about once every 3 or 4
weeks," about "15 to 20 minutes," appears to have been a careless rejoinder
on direct examination which he more carefully considered when giving the
foregoing testimony in rebuttal
13
There are no records in evidence detailing Byers' attendance Exfore-
man Peters credibly testified that Byers was late, on average, no more than
once every 2 weeks, and that Byers' performance in that regard was no
worse than that of the other employees Peters also said that employees
would be docked "if it gets into hours" Since there are no records in evi-
dence showing that Byers was ever docked, I infer that his tardiness was
never a serious problem
14
Nipple testified that, in fact, he was the general foreman "all the way
through, but I didn't get paid for it"
Peters about his decision to discharge Byers Instead, he
merely told his brother that he was going to fire Byers.
Neither on October 6 nor October 7, in a working environ-
ment which plainly had tolerated tardiness in the past, did
Nipple ask Byers what had prompted his tardiness on
Monday morning; he simply discharged him.
Finding, as I do, that the reasons given by Hank Nipple
for the discharge of Byers were baseless and pretextual, the
rule of Shattuck Denn Mining Corporation v. N L.R.B, 362
F.2d 466, 470 (C.A. 9, 1966), may properly be invoked:
If [the trier of fact] finds that the stated motive for a
discharge is false, he certainly can infer that there is
another motive More than that, he can infer that the
motive is one that the employer desires to conceal-an
unlawful motive-at least where, as in this case, the
surrounding facts tend to reinforce that inference.
For recent applications by the Board of the Shattuck Denn
inference, see Dan Lipman, Norman Ruttenberg and Abe
Goldstein, d/b/a Ascot Nursing Centre, 216 NLRB 680
(1975), and Sinclair & Valentine Company, 223 NLRB 1043
(1976).
As indicated, I find that Byers was not unusually tardy
during his several months of work on the project, and I
further find that Byers did not engage in work habits which
violated the norms on the project. But even if I were to
believe Hank Nipple's testimony, which I do not, about the
manner in which Byers performed, Respondent could
scarcely profit therefrom. According to Nipple, Respon-
dent had tolerated Byers' totally unacceptable work perfor-
mance for many months. The coincidence of discharging
Byers on the day after he had taken his first step towards
filing charges against Hank Nipple is simply too fortuitous
to be written off to chance. Western Exterminator Compa-
ny, supra 15 The record indicates that there was perhaps
only a week's work left at the Logansportjobsite. The deci-
sion to discharge a job steward in that circumstance is not
lightly taken. "The abiuptness of a discharge and its timing
are persuasive evidence as to motivation," N.L R B v.
Montgomery Ward & Co., Inc. 242 F.2d 497, 502 (C.A. 2,
1957); accord, N.L.R.B. v. Dorn's Transportation Company,
Inc, 405 F.2d 706, 713 (C.A. 2, 1969).
The evidence of record, and the inferences arising there-
from, convince me that Hank Nipple had learned from his
brother by October 7 that Byers intended to file charges
against him for working on the job without a steward, and
that Nipple discharged Byers for that reason and that rea-
son alone. Accordingly, I find that Respondent violated
Section 8(a)(3) and (1) of the Act by the discharge of John
Byers on October 7, 1975.16
15 "it stretches credulity too far to believe that there was only a coinciden-
tal connection between Thomas' enthusiastic solicitation upon behalf of the
union on Monday, Tuesday and Wednesday and the abrupt termination of
her employment on Thursday, at a time when there was plenty of work in
her department" Angwell Curtain Company, inc v N L R B, supra, 192
F 2d at 903
16 In its amended answer, and at the hearing, Respondent urged that the
matter be deferred to arbitration, presumably under the procedure first
enunciated in Collyer Insulated Wire, A Gulf and Western Systems Co, 192
NLRB 837 (1971) Respondent's brief does not renew the contention As
counsel conceded at the hearing, the applicable bargaining agreement con-
tains no provision requiring "just cause" for the discharge of employees, or
Continued
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Industry General Corporation is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Local Union No. 379 of the International Association
of Bridge , Structural and Ornamental Iron Workers, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. By discharging John E. Byers on October 7, 1975,
Respondent violated 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
THE REMEDY
In order to remedy the unfair labor practices found here-
in, I shall recommend that Respondent be required to
cease and desist therefrom and take certain affirmative ac-
tion Having found that Respondent discriminatorily dis-
charged John E. Byers on October 7 , 1975, I shall recom-
mend that Respondent be ordered to offer Byers
immediate and full reinstatement to his former job, or, if
that job no longer exists , to a substantially equivalent one,
without prejudice to his seniority or other rights and privi-
leges, and to make him whole for any loss of earnings he
may have suffered from the time of his termination to the
date of Respondent's offer of reinstatement. His backpay
shall be computed in accordance with F. W Woolworth
Company, 90 NLRB 289 (1950), with interest as prescribed
in Isis Plumbing & Heating Co., 138 NLRB 716 (1962)
I shall also recommend that Respondent be required to
post appropriate notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER 17
Industry General Corporation , Memphis , Tennessee, its
officers , agents, successors, and assigns , shall:
I Cease and desist from:
(a) Discharging or otherwise discriminating against em-
ployees for assisting Local Union No. 379 of the Interna-
affording them similar contractual protection Counsel referred at the hear-
ing to a provision in article XXII of the agreement, pertaining to job stew-
ards, which requires that a steward "will not be discharged until after proper
notification has been given to the Union " Since there is no question that
proper notification was given , the grievance procedure , which applies only
to disputes "as to the proper interpretation of this Agreement ," could not
possibly afford relief to Byers
In addition , the Board will not defer to arbitration where " the interests of
the Charging Parties-the alleged discrimmatees-are in apparent conflict
with the interests of the Union and certain of its officials ," Kansas Meat
Packers, a Division of Aristo Foods, Inc, 198 NLRB 543 (1972 ), Local Union
675, International Brotherhood of Electrical Workers, AFL-CIO (S&M Elec-
tric Co). 223 NLRB 1499 ( 1976) Such an "apparent conflict" clearly is
present here
n 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
tional Association of Bridge , Structural and Ornamental
Iron Workers , AFL-CIO, or any other labor organization,
or for engaging in other union activity or concerted activi-
ties for the purpose of mutual aid and protection.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization , to form, join , or assist any labor organiza-
tion , to bargain collectively through representatives of their
own choosing , or to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection or to refrain from any and all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer to John E. Byers full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position , without prejudice to his seniority or
other rights and privileges , and make him whole in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents , for examination and copying , all pay-
roll records , social security records, timecards , personnel
records and reports, and all other records necessary, or
appropriate , to analyze the amount of backpay due to
Byers.
(c) Post at any construction site on which it is working
in the State of Indiana copies of the attached notice
marked "Appendix ." 18 Copies of the notice , on forms pro-
vided by the Regional Director for Region 25, after being
duly signed by Respondent's authorized representative,
shall be posted by it for a period of 60 consecutive days
thereafter , in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered , defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 25 , in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
is In the event that the Board ' s Order is enforced by a Judgemnt of a
United States Court of Appeals, the words in the notice reading Posted by
Order of the National Labor Relations Board" shall read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had a chance to give
evidence , the National Labor Relations Board has found
that we violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form , join, or help unions
INDUSTRY GENERAL CORP. 1235
To bargain collectively through representatives of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all these things.
WE WILL NOT discharge or otherwise discriminate against
any employee to discourage membership in Local Union
No. 379 of the International Association of Bridge, Struc-
tural and Ornamental Iron Workers, AFL-CIO, or any
other labor organization, or to interfere with the union ac-
tivities or other protected concerted activities of employ-
ees.
WE WILL NOT in any other manner interfere with the stat-
utory rights of employees.
WE WILL offer John E. Byers immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent one, and WE WILL compensate
him with interest for any loss of pay he may have suffered
because we discharged him.
INDUSTRY GENERAL CORPORATION