K-Mechanical Services, Inc.

National Labor Relations Board - Board Decisions

Jul 26, 1990

299 N.L.R.B. 114 (N.L.R.B. 1990)

114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
K-Mechanical Services, Inc. and Donald E. Arthur.
Case 8-CA-21799
July 26, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On November 24, 1989, Administrative Law
Judge Marvin Roth issued the attached decision
The Respondent filed exceptions and a supporting
brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findmgs, 1 and
conclusions, 2 and to adopt the recommended
Order 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, K-Mecham-
cal Services, Inc, Toledo, Ohio, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order
'The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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
The Respondent claims that the judge erroneously found that Klorer
was refernug to Arthur's April 26, 1989 layoff when he testified that
Arthur had been laid off for poor work The Respondent contends that,
while Arthur had been laid off on April 26 for unsatisfactory work,
Klorer's testimony actually refers to Arthur's March 9, 1989 layoff Al-
though we agree with the Respondent that Klorer's testimony apparently
refers to the March 9 layoff, this does not affect the result in this case
Member Devaney, in adopting the judge's conclusion that it is map-
propnate to defer the 8(a)(3) allegation to the joint employer-union com-
mittee's disposition of Arthur's grievance, relies on the judge's findings
that the committee did not decide the merits of the grievance and that
the contractual and unfair labor practice Issues were not factually paral-
lel Further, in adopting the judge's conclusion that the Respondent's ter-
mination of Arthur violated the Act, Member Devaney notes that no spe-
cific exception was taken to the judge's alternative finding that Arthur
acted in concert and with the participation of a fellow employee in com-
plaining to management about overtime work
3 Consistent with the judge's findings that the Respondent violated
Sec 8(aX3) and (1) by terminating Arthur on April 26, 1989, and by sub-
sequently informing the Union that it did not want him back, backpay
calculated from the date of Arthur's discharge until the Respondent no
longer had work for him, and additionally Includes moneys Arthur
would have earned dunng future employment with the Respondent had
he been referred in a nondiscriminatory manner, according to the Union's
normal referral procedures
Charles Z Adamson, Esq , for the General Counsel
Steven J Stanford, Esq , of Toledo, Ohio, for the Re-
spondent
299 NLRB No 25
Donald E Arthur, of Toledo, Ohio, for the Charging
Party
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge This case
was heard at Toledo, Ohio, on September 21, 1989 1 The
charge was filed on May 15 by Donald E Arthur The
amended complaint, which issued on July 24, alleges that
K-Mechanical Services, Inc (the Company or Respond-
ent) violated Section 8(a)(1) and (3) of the National
Labor Relations Act The gravamen of the complaint is
that the Company allegedly terminated employee Arthur
because of his union and concerted activities The Com-
pany's answer denies the commission of the alleged
unfair labor practices 2 All parties were afforded full op-
portunity to participate, to present relevant evidence, to
argue orally, and to file bnefs General Counsel and the
Company each filed a bnef
On the entire record in this case, 3 and from my obser-
vation of the demeanor of the witnesses, and having con-
sidered the bnefs and arguments of the parties, I make
the following
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
The Company, an Ohio corporation with an office and
place of business in Toledo, Ohio, is engaged in the busi-
ness of providing mechancial contracting services to
commencal customers In the operation of its busmess,
the Company annually provides services valued in excess
of $50,000 to General Mills, Inc, an enterpnse which is
engaged directly in interstate commerce within the
meaning of the Act I find, as the Company admits, that
it is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Local 50, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefittmg Industry of the
United States and Canada, AFL-CIO, CLC (the Union)
is a labor organization within the meaning of Section
2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
The Company, as a member of Mechanical Contrac-
tors Association of Northwestern Ohio, Inc (Associa-
tion), a multiemployer bargaining association, is a party
to a collective-bargaining contract with the Union The
current contract, commonly referred to as the "Blue
'All dates are for 1989 unless otherwise indicated
2 By its answer the Company raised three affirmative defenses I denied
two at the outset of the hearing The third is addressed to the merits of
the complaint (alleged failure to state a claim on which relief can be
granted) The answer did not affirmatively allege that the complaint
should be deferred to any contractual grievance or arbitration procedure
'The corrections in the transcript have been noted and corrected
K-MECHANICAL SERVICES 115
Book," is effective by its terms from July 1, 1987,
through June 30, 1990, and covers welders, fitters, and
plumbers employed by the Company The Association
and the Union are also signatories to the Toledo Mainte-
nance Agreement (Addendum) which is an Addendum
to the Blue Book covering repair, replacement, mainte-
nance, and renovation work The Company is a succes-
sor to Klorer-Willhardt, Inc , which from its inception in
1965 was party to a series of contracts with the Union
0 Steven Klorer was president and principal owner of
Klorer-Willhardt, Inc from 1965 to 1982, and since
April 22, 1987, has been company president Klorer is a
"hands on" chief executive who is actively involved in
his firm's day-to-day operations Donald Arthur has been
a steamfitter welder and union member since about 1968
He is also a qualified plumber He served nearly all of his
5-year apprenticeship with Klorer-Willhardt, Inc Arthur
subsequently worked for Klorer-Willhardt on two or
three occasions Arthur was union president from De-
cember 1985 to December 1988 He has not been on
good terms with the present union leadership, having
previously fought a pay increase for the present business
manager Klorer was and continued to be of the opinion
that Arthur was a slow worker with a propensity to
waste time on the job Company Foreman Bob Pershing,
a union member, also believed that Arthur did not work
hard enough On December 28, 1988, the Union referred
Arthur to the Company through the union hiring hall
Under the contract, which provides for an exclusive re-
ferral system, the Company had the right to reject
Arthur or any other referred applicant However, the
Company did not reject Arthur, who worked for the
Company until March 9, when he was laid off for lack of
work Klorer testified that he did not reject Arthur, or
terminate him for unsatisfactory performance, because
the Union might refer someone who was worse 4 There-
fore Klorer followed a practice of keeping on the best
performers as long as possible, even to the point of put-
ting them on cleanup or other unskilled work, while
laying off less productive employees like Arthur when
the work force had to ,be reduced Klorer testified that
on some 10 or 12 occasions he told Pershing that he was
tried of Arthur goofing off, and that on 2 occasions he
told Pershing to get rid of Arthur if he continued to
goof off However, at no time prior to the week of April
24 did Klorer or any other company supervisor complain
to Arthur or the Union about Arthur's work perform-
ance Arthur usually was assigned to weld carbon steel
During his stint from December 28 to March 9, he was
assigned to weld stainless steel tanks Arthur testified
that this was not his specialty, and he had difficulty in
performing the work He complained to Klorer Klorer
testified that in his opinion, stainless steel welding was
easier than carbon steel welding, and Arthur took too
long to perform the work The Company transferred
4 The Company repeatedly states in its brief that Arthur was laid off
on March 9 for poor work performance, citing Tr 24 However, Klorer
was at this point referring to Arthur's April 26 layoff, i e, the layof
which is at issue in this case Thus Klorer testified that at this time he
told the Union that he did not want Arthur back again Arthur testified
without contradiction that Klorer's son, company official Gerald Klorer,
told him on March 9 that he was laid off because of lack of work
Arthur to another job, and on March 9 laid off Arthur
for lack of work On March 23 the Union again referred
Arthur to the Company Again, the Company did not
reject him
The Company does a substantial amount of work for
General Mills, and may be working on more than one
contract for General Mills at any given time The Asso-
ciation and the Union have agreed that under their col-
lective-bargaining agreements, each contract is viewed as
a separate job Under the Blue Book, when unsheduled
overtime occurs on a jobsite, priority must be given to
unit employees working on the jobsite, and no employee
can be brought from an outside jobsite to replace an em-
ployee already worlcmg on the job for the sole purpose
of working overtime However, under the Addendum,
the employer has sole discretion to determine who will
work overtime, although the employer must attempt to
equalize overtime among employees whenever practical
In April Arthur and his fitter, Joe Kaloszar, were work-
ing on the "Top Gun" line at the General Mills facility
On April 22 and 23 (Saturday and Sunday) the Company
assigned overtime work under another contract with
General Mills The Company did not ask Arthur or Ka-
loszar to work on those days When Arthur and Kalos-
zar arrived at work on Monday, April 24, they learned
about the weekend overtime Arthur asked union stew-
ard Bill Peacock to check into the matter However,
shortly thereafter Peacock was summoned off the job on
an unrelated matter Later, as Arthur was cutting rod, he
saw Klorer Arthur asked why he and Kaloszar were not
offered the overtime work Klorer answered that they
did not show enough enthusiasm on the job, and that
Arthur did not work fast enough Klorer said that he
had the nght to decide who would work overtime
(meaning under the Addendum) Arthur suppressed his
anger and went back to work As indicated, this was the
first time that the Company told Arthur that his work
was less satisfactory Later that day, the Manpower
Practices Committee, comprised of union and employer
representatives, met in accordance with their usual prac-
tice to discuss problems, i e, in order to resolve such
problems before they ripened into grievances Klorer
told the comnuttee that he had enough of Arthur's poor
work performance, described how Arthur sat down on
the floor of an aisleway to attach a nut to a rod, and said
that Arthur "would be laid off in the near future"
Klorer added that Arthur did not work overtime the
previous weekend, and the committee "would most
likely be receiving a grievance because of that" (In a po-
sition letter to the Board's Regional Office, Klorer stated
that this meeting took place on April 20 However, in
light of the testimony of Association Executive Vice
President Ronald Cook, who was presented as a compa-
ny witness, it is evident that the meeting took place on
April 24, after Arthur complained to Klorer ) The next
day (Tuesday, April 25) while at work, Arthur asked
Foreman Pershing whether Pershing ever said that
Arthur was not working hard enough Pershing an-
swered that he did not Arthur asked if Pershing would
testify at his grievance (Arthur anticipated that he would
file a grievance) Pershing said that Arthur might not
116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
want him, because Pershing thought that Arthur did not
work hard enough That evening, after work, Arthur
went to the union hall and talked to Business Manager
Dave LaPlante about a grievance over the Company's
failure to offer him the weekend overtime work La-
Plante referred the matter to Union Business Agent Bob
Lynn, who made an appointment to see Klorer On Apnl
26, at about 1 30 p m, Lynn met with Klorer m the Gen-
eral Mills parking lot, while Arthur was at work Lynn
testified in sum as follows He said that Arthur com-
plained about not working overtime on the weekend
Klorer answered that the overtime was on a different
job, and there was no contract violation Lynn referred
to the Blue Book Klorer said that the job was covered
by the Addendum Lynn asked if there was any way to
resolve the complaint Klorer answered "not really"
Lynn responded that therefore Arthur would probably
file a grievance, and the Union had a duty to represent
him Klorer said that Arthur would do what he had to
Lynn said that he was just gathering the facts, Klorer
said nothing about laying off Arthur Klorer testified in
sum about the conversation as follows Lynn said he
came to try to solve the problem about Arthur not get-
ting the overtime Klorer said there was no problem
Lynn suggested that there was a contract violation
Klorer asked Lynn to explain the alleged violation
When Lynn referred to the Blue Book, Klorer responded
that he was pointing to the wrong contract, and that in
any event the overtime was on a different job Lynn said
he was just there to collect the facts Klorer asked if
Arthur filed anything against him Lynn answered that
they were Just talking now Lynn did not say that
Arthur would probably file a grievance Klorer said he
was tired of watching Arthur walking around, and "I'm
going to lay him off today" I credit Lynn As indicated,
Klorer falsely stated in his position letter that he told the
union representatives on April 20 that he would lay off
Arthur Klorer also displayed a tendency to be argumen-
tative and evasive when testifying about a significant
matter Thus, after equivocating, Klorer admitted that
the stainless steel incident occurred during Arthur's first
stint of employment (December 29 to March 9) I have
no comparable reservations with respect to Lynn's testi-
mony For reasons which will be discussed, my ultimate
findings in this case would be the same even if I credited
Klorer's version of the conversation
About 1 hour after the meeting between Lynn and
Klorer, Foreman Pershing told Arthur that he would be
laid off At about 3 30 p m Klorer told Arthur that he
was laid off Klorer testified that he told Arthur that he
was laid off because of his work habits Arthur initially
testified that Kloerer said he was laid off because Klorer
did not like his attitude on the job, but subsequently tes-
tified that Klorer simply said that he did not like Ar-
thur's attitude, without referring to the job In light of
Arthur's contradictory testimony, and General Counsel's
failure to call Steward Peacock, who was present at the
layoff, I credit Rlorer in this regard Klorer subsequently
informed the Union that he did not want Arthur back
Klorer never claimed that there was no work for Arthur,
and in fact there was work on the job The Company did
not lay off fitter Kaloszar Between April 26 and the
present hearing the Union referred five welders to the
Company for work at General Mills (upon returning to
the union hall, Arthur signed the welder out-of-work
list) Klorer testified with respect to Arthur's layoff as
follows
No, I was not angry with Arthur for causing that
problem, because I had no reason I've been in this
business, and I have these problems all the time, and
we solve them There is no problem What I was
angry with Arthur about is not producing, and I
pay these guys big money, and I'm on contract, and
it ain't just a give away, and I was angry with Arthur
for instead of doing his work even bothering me with
this This is something he should have gone to the stew-
ard He shouldn't even come to me, but it was a way
of not working, and I'm after—I pay them a dollar, I
want a dollar in return That's—I was not angry at
Arthur for whatever you want to call if for not
working—or for questiomng me I just made a state-
ment, and let's go back to work That's what he
was hired for [Emphasis added ]
In sum, Klorer asserted that by "bothering" him about
not getting overtime work, Arthur was "not working"
In his position letter to the Regional Office, Klorer de-
scribed Arthur's alleged poor work habits, but empha-
sized Arthur's reputation as a "back-yard lawyer" In the
first two substantive paragraphs of his letter Klorer
stated as follows
Mr Arthur is a man who has spent many years
studying union contracts, work rules, procedures,
and he invariably interprets them all to his benefit
He is what we in the area would call a back-yard
lawyer
Mr Arthur lacks the best work habits and he
makes it very difficult for a contractor to complete
a job within budget Mr Arthur has a reputation
for questioning orders and if a contractor orders
him to do an unpleasant task or discharges him, he
has a history of causing some kind of trouble and
this has resulted in contractors being very uncom-
fortable in employing him This is reflected in his
work record which shows the number of jobs he
has in a year's time and which is sufficient to tell
the story
Arthur filed a grievance alleging tht the Company (1)
violated the contract by not offenng overtime work to
himself and others, (2) slandered and maligned him at the
Manpower Practices Committee meeting on April 24,
and (3), discharged him because of inquiries into the situ-
ation and the filing of this grievance The grievance was
processed to the third step, consisting of a hearing on
May 11 before a Joint subcommittee comprising two em-
ployers and two union representatives At the outset of
the hearing Arthur withdrew the first and second allega-
tions (The Union and Association were in agreement
that the Company had a contractual right to fail or
refuse to offer the overtime work to Arthur and Kalos-
zar ) Arthur asserted that he was terminated in violation
of the nondiscrimination clause of the contract (art XII)
K-MECHANICAL SERVICES 117
This clause prohibits discrimination because of race, reli-
gion, sex, handicap, or national origin, but does not pro-
hibit any other kind of discrimination The subcommittee
unanimously concluded that there was no violation of
the contract Their decision constituted the final disposi-
tion of Arthur's grievance
B Analysis and Concluding Findings
1 The deferral question
As indicated, the Company did not allege in its answer
that the Board should defer the matter of Arthurs' layoff
to the disposition of the joint subcommittee However,
General Counsel injected that issue into the hearing by
introducing evidence which was intended to demonstrate
that he disposition failed to meet the Board's standards
for deferral When I so indicated, the Company asserted
that it mtended to raise deferral as an issue, and General
Counsel did not object I find that the question of defer-
ral was fully and fairly litigated, and therefore is an issue
in this case A "material issue which has been fairly tried
by the parties should be decided by the Board regardless
of whether it has been specifically pleaded" American
Boiler Mfrs Assn v NLRB, 366 F 2d 815, 821 (8th Cir
1966) Therefore, I reject General Counsel's argument
(Br 19) that the Company's assertion is untimely I also
find without merit General Counsel's argument that the
standards of Olin Corp, 268 NLRB 573 (1984), and Spiel-
berg Mfg Co, 112 NLRB 1080 (1955), are inapplicable to
the present case because the joint subcommittee disposi-
tion "was not the same as final and bmdmg arbitration"
(Br 20) As the Company points out in its brief, the
Board has applied the standards of Olin and Speilberg to
determinations by joint employer-union committees The
Blue Book refers to majority decisions of the joint sub-
committee as designating "a settlement of the dispute
binding upon both parties involved," i e, a final disposi-
tion of the grievance Although the Blue Book refers to
such dispositions as designatmg a settlement, the subcom-
mittee disposition here involved was substantially identi-
cal in form to joint employer-union determinations to
which the Board has applied Olin and Spielberg
Under Olin and Spielberg, the Board will defer to an
arbitration award, including as here a joint employer-
union committee disposition, when the following condi-
tions are present (1) the proceedings appear to have
been fair and regular, (2) all parties had agreed to be
bound, (3) the contractual issue is factually parallel to
the unfair labor practice issue, (4) the arbitrator was pre-
sented generally with the facts relevant to resolving the
unfair labor practice, and (5) the decision of the arbitra-
tion panel is not clearly repugnant to the purposes and
policies of the Act By "clearly repugnant," the Board
means that the "arbitrator's decision is not susceptible to
an interpretation consistent with the Act" (Olin, 268
NLRB at 574) I find that the joint subcommittee disposi-
tion fails to meet the third and fifth criteria, and there-
fore that deferral is mappropnate The joint committee
never decided the merits of Arthur's grievance Rather
the joint subcommittee simply determined that even if
Arthur's contentions were true, his layoff would not con-
stitute a violation of the nondiscrimination clause on
which Arthur relied In sum, the joint subcommittee con-
cluded that the clause does not prohibit a signatory em-
ployer from discriminating agamt an employee because
of the employee's union activity The subcommittee did
not consider either the questions of whether the Compa-
ny laid off Arthur because of poor work performance or
because he sought to invoke alleged contract rights
Therefore, the contractual issue was not factually paral-
lel to the unfair labor practice issue Moreover, by con-
cluding that the contract clause in question did not pro-
hibit the Company from laying off Arthur because of his
union or concerted activities, the joint committee
reached a result which was clearly repugnant to the pur-
poses and policies of the Act Therefore, I shall proceed
to decide the merits of this case
2 The merits
I find that Klorer terminated Arthur because he antici-
pated that Arthur would file a grievance over the Com-
pany's failure to assign overtime work to Arthur and Ka-
loszar First, Klorer's own prior course of conduct
toward Arthur, coupled with the timing of Arthur's
layoff, demonstrates a discriminatory motive Klorer had
known Arthur for many years, and Arthur had worked
on and off for the Company and its predecessor over a
long period of time Klorer was familiar with Arthur's
work performance, and had long regarded Arthur as a
comparatively unproductive worker Klorer had a con-
tractual right to refuse to accept Arthur, and could at
any time have informed the Union not to refer Arthur
Nevertheless, Klorer did not, until the events which
gave rise to this case, reject Arthur as an employee or
even complain to Arthur or the Union about his work
performance The Company accepted the Union's refer-
ral of Arthur on December 28, 1988, and kept him on
until March 9, when Arthur complained that he was
having difficulty welding stainless steel, Klorer simply
assigned him to another job instead of laying him off,
even though Klorer believed that Arthur was malinger-
ing On March 23, only 2 weeks after laying him off, the
Company again hired Arthur, and kept him on the job
for over a month, although there was no indication that
Arthur's work performance and improved However, on
the same day that Arthur complained to Klorer about he
and Kaloszar not getting the weekend overtime work,
Klorer informed the Union about the complaint, indicat-
ed that he anticipated a grievance, complained for the
first time about Arthur's work performance, and warned
that Arthur would be laid off in the near future Klorer's
statements plainly constituted a threat that if the Union
or Arthur chose to pursue a grievance, Arthur would be
laid off That is precisely what happened On April 26,
Business Agent Lynn told Klorer that Arthur would
probably file a grievance and the Union would represent
him Klorer immediately laid off Arthur, although there
was still work for him to perform Second, discimmatory
motive was further demonstrated by Klorer's animus
toward Arthur's pursuit of the grievance, including a vir-
tual admission that Arthur was laid off for this reason
As discussed, Klorer demonstrated this animus in his tes-
timony and position letter to the Board Klorer frankly
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
admitted in his testimony that he regarded Arthur's com-
plaint as "a way of not working," i e, as grounds for
laying off Arthur By reason of these factors, General
Counsel presented a prima facie case that the Company
terminated Arthur because of his complaint and conse-
quently indicated intent to file a grievance For the same
reaons, I find that the Company's assertion that it termi-
nated Arthur because of poor work performance was
pretextual Therefore, the Company failed to meet its
burden of establishing that it would have terminated
Arthur in the absence of such activity Arthur's com-
plaint about overtime and his efforts in pursuit of that
complaint constituted union and protected concerted ac-
tivity under the Act Arthur invoked the Blue Book in
the honest and reasonable, although mistaken belief, that
he, Kaloszar and possibly other employees on their job,
had had a contractual right to be offered the weekend
overtime work in preference to employees brought in
from other jobs At the time Arthur did not know the
full facts, i e, that his job was covered by the Adden-
dum, and the overtime involved a different job Klorer
made no effort to enlighten him, but instead retaliated
against Arthur See NLRB v City Disposal Systems, 465
U S 822 (1984), Pennsylvania Electric Co, 289 NLRB
1200 (1988) Moreover, as Arthur acted in concert and
participation with his fitter Kaloszar, his complaint to
Klorer would be protected under Section 7 even if
Arthur did not invoke an arguable contract nght or
gnevance procedure Therefore, the Company violated
Section 8(a)(1) and (3) of the Act by terminating Arthur
CONCLUSIONS OF LAW
1 The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 By discnmmatmg in regard to the tenure of employ-
ment of Donald Arthur, thereby discouraging member-
ship in the Union, the Company has engaged, and is en-
gaging, in unfair labor practices within the meaning of
Section 8(a)(3) of the Act
4 By interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, the Company has engaged, and is en-
gaging, in unfair labor practices within the meaning of
Section 8(a)(1) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
THE REMEDY
Having found that the Company has committed viola-
tions of Section 8(a)(1) and (3) of the Act, I shall recom-
mend that it be required to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act
Having found that the Company discriminatorily ter-
minated Donald Arthur, It will be recommended that the
Company be ordered to offer him immediate and full re-
instatement to his former job, or if it no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him
whole for any loss of earnings and benefits that he may
have suffered from the time of his layoff to the date of
the Company's offer of reinstatement For the purpose of
calculating backpay, it is determined that in the absence
of the discrimination against him, Arthur would have
worked for the Company until there was no longer any
work for him, and would have been referred by the
Union for employment in a nondiscriminatory manner in
accordance with the Union's usual referral procedure I
shall further recommend that the Company be ordered
to remove from its records any reference to the unlawful
termination of Arthur, to give written notice to the
Union that it has no objection to referral of Arthur for
employment, to inform Arthur in writing of such ex-
punction and notice, and to inform him that its unlawful
conduct will not be used as a basis for further personnel
actions against him Backpay shall be computed in ac-
cordance with the formula approved in F W Woolworth
Co, 90 NLRB 289 (1950), with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987) 5
It will also be recommended that the Company be re-
quired to preserve and make available to the Board, or
its agents, on request, payroll and other records to facili-
tate the computation of backpay due
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed6
ORDER
The Respondent, K-Mechanical Services, Inc , Toledo,
Ohio, its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Discouraging membership in Local 50, United As-
sociation of Journeymen and Apprentices of the Plumb-
ing and Pipefittmg Industry of the United States and
Canada, AFL-CIO, CLC or any other labor organiza-
tion by discnminatonly laying off, terminating, or refus-
ing to accept referrals of employees, or in any other
manner discriminating against employees with regard to
their hire or tenure of employment or any term or condi-
tion of employment
(b) In any like or related manner interfering with, re-
straining, or coercing employee in the exercise of their
rights under Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Donald Arthur immediate and full reinstate-
ment to his former job or, if such job no longer exits, to
a substantially equivalent position, without prejudice to
his seniority or other rights and privileges previously en-
joyed, and make him whole for losses he suffered by
5 Under New Horizons, interest on and after January 1, 1987 is comput-
ed at the "short-term Federal rate' for the underpayment of taxes as set
out in the 1986 amendment to 26 U S C § 6621
6 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
' K:MECHANICAL SERVICES '119
reason of the discrimination against him as set forth in
the remedy section of this decision
(b) Remove from its files any reference to the unlawful
termination of Donald Arthur, give written notice to the
Union that it has no objection to referral of Arthur for
employment, and notify Arthur in writing that this has
been done and that evidence of the unlawful conduct
will not be used as a basis for future personnel actions
against him
(c) Preserve and, request, make available to the Board
or its agents, for examination and copying all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records neces-
sary to analyze the amount of backpay due
(d) Post at its Toledo, Ohio office and place of busi-
ness, copies of the attached notice marked "Appendix "
Copies of the notice, on forms provided by the Regional
Director for Region 8, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
7 If 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 Nation-
al 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
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT discourage membership in Local 50,
United Association of Journeymen and Apprentices of
the Plumbing and Pipefittmg Industry of the United
States and Canada, AFL-CIO, CLC or any other labor
organization, by discnmmatonly laying off, terminating,
or refusmg to accept referrals of employees, or in any
other manner discnmmatmg against employees with
regard to their hire or tenure of employment or any
terms of condition of employment
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your right
to engage in union or concerted activities, or to refrain
therefrom
WE WILL offer Donald Arthur immediate and full re-
instatement to his former job or, if such job no longer
exists, to a substantially equivalent position, without prej-
udice ro his seniority or other rights and privileges pre-
viously enjoyed, and make him whole for losses he suf-
fered by reason of the discrimination against him, with
interest
WE WILL remove from our files any references to the
unlawful termination of Donald Arthur, give written
notice to Local 50 that we have no objection to referral
of Donald Arthur for employment, and notify him in
writing that this has been done and that evidence of the
unlawful conduct will not be used as a basis for future
personnel actions against him
K-MECHANICAL SERVICES, INC