Kuhlman, Inc.

National Labor Relations Board - Board Decisions

Oct 17, 1991

305 N.L.R.B. 481 (N.L.R.B. 1991)

481
305 NLRB No. 48
KUHLMAN, INC.
1 The Respondent has requested that the record be reopened and
that it be given the opportunity to present oral argument. The request
to reopen the record is denied as the Respondent has failed to state
a sufficient basis for granting such a request. The request for oral
argument is denied as the record, exceptions, and briefs adequately
present the issues and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
1 All dates hereafter refer to the year 1990.
2 Certain errors in the transcript have been noted and corrected.
3 Lewis testified but did not dispute this work estimate.
4 Wednesday was July 4, a holiday.
Kuhlman, Incorporated and Willie F. McClearen,
Jr. Case 26–CA–13996
October 17, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 16, 1991, Administrative Law Judge Ber-
nard Ries issued the attached decision. The Respondent
filed exceptions and a supporting brief.1 The General
Counsel filed an answering brief.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to adopt the judge’s rulings, findings,2 and con-
clusions and to adopt his recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Kuhlman, Incorporated,
Jackson, Tennessee, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Grace Speer, Esq., for the General Counsel.
Albert H. Petajan, Esq. (Brigden & Petajan, S.C.), of Mil-
waukee, Wisconsin, for the Respondent.
DECISION
BERNARD RIES, Administrative Law Judge. This matter
was heard on February 21, 1991, in Jackson, Tennessee. The
case is based upon a charge filed on August 13, 1990, as
amended on January 8, 1991, and a complaint issued on Oc-
tober 11, 1990, and amended on February 8, 1991.
The amended complaint alleges three matters of substance:
that Respondent violated Section 8(a)(3) and (1) of the Act
by, on ‘‘July 6, 1990,’’1 discharging Willie F. McClearen Jr.;
violated Section 8(a)(3) by refusing, ‘‘since on or about July
6, 1990,’’ to abide by an arbitration award in favor of
McClearen; and violated Section 8(a)(1) on or about July 6
and 8 by telling McClearen that the Respondent did not want
him to discuss grievances with the Union and that he was
being discharged because he had filed a grievance with the
Union.
Counsel for both active parties have filed briefs. I have re-
viewed the transcript of proceedings,2 the exhibits, and the
briefs, and I have considered my recollection of demeanor of
the witnesses. Having done so, I reach the following
FINDINGS OF FACT
I. THE BASIC FACTS; FINDINGS AND CONCLUSIONS
A. The Discharge of Willie F. McClearen Jr.
Respondent is a national enterprise which, inter alia, con-
tracts with the Quaker Oats Company in Jackson, Tennessee,
to provide maintenance of its refrigeration equipment. At
Jackson, Respondent recognizes Local 407, United Associa-
tion of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL–
CIO–CLC (Local 407), as the collective-bargaining rep-
resentative of its employees. It appears that, on average, Re-
spondent employs two regular employees at the Jackson
Quaker Oats facility, and calls upon Local 407 to supply
other welders and pipefitters as needed from time to time.
Tommy DeLoach has been the superintendent of Respond-
ent’s Jackson operation for a few years, and is also a long-
time member of Local 407. Willie McClearen is a pipefitter
who has been referred to jobs through Local 407 for many
years, including work for Respondent.
On Tuesday, June 26, Superintendent DeLoach contacted
Local 407 Business Manager J. T. Lewis and said he needed
two employees on Monday, July 2, to install a water line,
a job that would take about 4 days.3 Another job (an ammo-
nia line job) arose on June 27, and DeLoach himself called
in one regular welder, Danny McPeake, to start that job on
June 27 and also called Lewis again to have him tell one of
the two men he was to send on July 2 to come in on June
28 to work with McPeake on the ammonia job. Lewis sent
Willie McClearen on June 28, and McClearen worked on
that day and on June 29.
On Sunday, July 1, McClearen called DeLoach to notify
him that he would be unable to work on Monday because
he was to be a funeral pallbearer, and that he would return
on Tuesday. DeLoach said that would be ‘‘fine.’’ On Mon-
day afternoon, however, DeLoach called McClearen at home
and told him not come back to work on Tuesday, but rather
to wait until Thursday.4 McClearen accepted the change of
instruction.
When he appeared on Thursday, McClearen was told by
DeLoach that he had a different project for McClearen to
work on with pipefitter Ray Eaves, cutting some holes in the
Quaker Oats plant roof to run new pipe into the blast freezer.
When he reached the roof, he saw McPeake working with
David Overton, a pipefitter-plumber employee who had been
hired on July 2, and who, McClearen was told, had been
working with McPeake on the water line job on Monday and
Tuesday. McClearen felt aggrieved by the fact that he had
been told to stay home on Tuesday while Overton, a slightly
more junior employee, had been allowed to work, and, dur-
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 I also base this and other findings herein in part on the testimony
of Roy Brannon, a credible-appearing witness.
6 As McClearen himself pointed out, his work would not have
brought him into contact with the Quaker Oats employees, so it is
unlikely to me that DeLoach would have made such an allusion.
ing morning breaktime, he approached Billy Tims, the ap-
pointed union steward on the job. They summoned DeLoach,
who was in the vicinity, and McClearen claimed that
DeLoach owed him a day’s pay for Tuesday, with which
DeLoach disagreed. Tims stated that he was unsure of what
the contract provided in such cases, and said he would speak
to business agent Lewis.
What happened after that insofar as McClearen’s persist-
ence in pursuing the matter is left somewhat uncertain in the
record. On the whole record, I find the following approxima-
tion of the facts. McClearen conceded that as the employees
were returning from lunch on Thursday, he asked Tims if he
had spoken to Lewis yet, but Tims said he had received no
new information from Lewis. Tims testified that McClearen
stopped him again after the Thursday afternoon workbreak to
discuss the matter, and Tims told McClearen that they should
do their job and discuss the problem on their time off. Tims
further testified that on the next morning, McClearen once
again bothered him about his grievance; Tims told
McClearen that they had better work, but that he would con-
tact Lewis as soon as possible. Around that time, DeLoach
approached and asked what was going on. Tims told him.
Later in the day, about 2 p.m., when DeLoach came to see
Tims again, the latter told him that McClearen ‘‘keeps com-
ing by harassing me.’’
At some point, DeLoach went on the roof and confronted
McClearen about bothering others. An argument ensued,
complete with obscenity and profanity (my guess, based pri-
marily on a comparison of the testimony of McClearen and
DeLoach, is that McClearen was the more aggressive and
confrontational).5 McClearen conceded that, during the argu-
ment, DeLoach said, with reference to McClearen’s asserted
right to discuss his grievance with Tims, that he had talked
to Tims ‘‘all you’re going to talk to him’’ and ‘‘[i]f you’re
going to talk to him, you talk to him at the union meeting’’
(the weekly meeting was to be held that evening).
DeLoach disappeared, returned, and told McClearen to
come downstairs, where, in the presence of Tims, he handed
McClearen a termination notice. According to McClearen,
whose testimony is doubtful, DeLoach attributed the dis-
charge to McClearen’s ‘‘talking too damn much . . . around
them Quaker Oats employees, they’re non-union employees
and I don’t want you talking around them people no more.’’6
There is general agreement that McClearen pleaded for his
job, saying ‘‘I don’t want to get fired.’’ DeLoach capitulated
and took back the termination notice. While DeLoach testi-
fied that all he told McClearen was to ‘‘finish out the day,’’
I doubt that he was so specific, for reasons to be discussed
later.
McClearen attended the union meeting that night;
DeLoach did not. At the meeting, McClearen raised the sub-
ject of his grievance relating to Overton, and a committee
was appointed to hear the matter. On the afternoon of Sun-
day, July 8, DeLoach telephoned McClearen and told him
that he was reactivating the termination notice.
According to DeLoach, he simply told McClearen that he
was going to ‘‘let the termination go,’’ and that when
McClearen asked him to ‘‘think about this a little bit more,’’
DeLoach replied that ‘‘that’s what I’ve been doing, I’ve been
thinking about it,’’ and ended the conversation. McClearen
gave a much more incriminating version of the conversation.
He said that DeLoach told him, in effect, that he was being
fired because he ‘‘went down to the Union hall and raised
so much god damm hell’’ and now ‘‘we’ve got all this [arbi-
tration] to go through.’’
I do not credit McClearen’s version of the conversation.
As a witness, McClearen inspired no particular feeling of
confidence, and I am inclined to believe that DeLoach would
not have been so indiscreet as to have blurted out the precise
unlawful reason for having changed his mind.
On hostile-witness examination, DeLoach testified that
‘‘all’’ the reasons that led him to discharge McClearen were
that the latter had had ‘‘talked too much and agitated other
employees,’’ had ‘‘cussed’’ at him, and ‘‘had slowed down
some of the work of other workers due to his talking.’’
DeLoach, while appearing as a witness for the Respondent,
also said that he did not ‘‘think’’ that he knew anything
‘‘that happened at the union meeting before I made this
phone call’’; why he would have been uncertain about the
matter is difficult to comprehend. He also gave some very
strange testimony regarding a telephone conversation he had,
prior to his Sunday discharge of McClearen, with a now re-
tired former supervisor of his, one Harlow Schemmel, pres-
ently living in Kansas City.
At first DeLoach said that he told Schemmel ‘‘what the
situation was down here and after talking to him I just made
the decision that I didn’t really need Willie coming back out
there because I couldn’t see after these things had happened
and the job was finishing anyway. He wouldn’t have been
there but a couple more days.’’ When asked further about his
conversation with Schemmel, DeLoach gave the following, at
times almost incoherent, testimony:
A.Well, this is something pretty new to me.
Q. What is that?
A. Having these problems like this on the job, and
I didn’t know whether—I didn’t know what I should,
you know, I didn’t know what to do really to tell you
the truth. I was nervous about it. I was upset about it.
So I just called him up and told him [Schemmel] what
had happened and what I had done and what he thought
about what I had done.
Q. This was—what had you done? I mean, this was
before you reinstated that the layoff or the discharge of
Mr. McClearen, right?
A. Yes, sir.
Q. You sought Mr. Schemmel’s advice as to what to
do?
A. Well, not really his advice I don’t guess. I was
just curious I guess, you know, if I was doing the right
thing. Maybe—I don’t know, you know, I just felt like
I needed to talk to somebody and I just called him. You
know, maybe I shouldn’t have even brought that up
awhile ago. It wasn’t anything pertaining to July 6th or
anything.
Q. It wasn’t
A. No.
Q. What was it about?
483KUHLMAN, INC.
7 I erred in striking DeLoach’s testimony about McClearen’s noto-
riety for suing people. The concern relates to DeLoach’s state of
mind and, while not probative of the truth of the matter, is appro-
priately received.
8 Billy Tims, testifying for Respondent, told us that while at work
on Sunday, July 8, DeLoach came up to him and said that ‘‘he had
talked to his bosses and his bosses said that he had—that he was
to terminate unsatisfactory work [sic]. ‘‘ He said that DeLoach re-
ferred to the work performed by McClearen and ‘‘he’s stopping y’all
from working.’’ It seems odd that DeLoach would have mentioned
his ‘‘bosses’’ in this connection; his own testimony is that he him-
self made the decision. I do not know whether to believe Tims or
not; generally, I had doubts about his objectivity. But even if such
a conversation occurred, it does not necessarily prove anything more
than an attempt by DeLoach to be prudent.
9 DeLoach testified that he only told McClearen on Friday to ‘‘fin-
ish the shift,’’ and Respondent argues that McClearen was never
really rehired. But since DeLoach also testified that McClearen, as
of Sunday, had only a ‘‘couple of days’’ of work left, he himself
was saying that he expected McClearen to continue to work after
Friday.
10 See Dumbauld Corp., 298 NLRB 842 fn. 1 (Meredith).
A. I mean talking—I’m talking about talking to Har-
low didn’t have anything to do with me writing the lay-
off slip to start with.
Q. You were concerned about your relationship with
Mr. McClearen.
A. Right.
Q. And that’s why you called Mr. Schemmel?
A. I guess you could say that.
Q. So talking to Harlow did have a lot to do with
his eventual discharge.
A. Well, I knew that—I knew that Willie had—was
pretty notorious about suing everybody.
MS. SPEER: Objection, Your Honor. I move to strike.
MR. PATZKE: He answered the question.
THE WITNESS: And that’s—
JUDGE RIES: No—well, I sustained the objection.
And I’ll grant the motion to strike.
This is a most peculiar colloquy. Without hesitation or
consulting Schemmel, DeLoach discharged McClearen on
Friday, but then agreed to retract the discharge. On Sunday,
however, although he assertedly anticipated that McClearen
would only be working a ‘‘couple more days,’’ DeLoach
‘‘didn’t know what to do really,’’ ‘‘was nervous about it,’’
‘‘was upset about it,’’ sufficiently so to make him call
Schemmel in Kansas City because he ‘‘needed to talk to
somebody’’ to see ‘‘if he was doing the right thing.’’ He
even was concerned that McClearen might sue him.7 But
what was DeLoach so worked up about? He had, seemingly,
put the matter to rest on Friday, when he rescinded the dis-
charge. Why was he, on Sunday, having received an apology
from McClearen, with only a perceived ‘‘couple of days’’ of
McClearen employment left, suddenly in a veritable stew,
‘‘nervous’’ and ‘‘upset’’ enough to call his former supervisor
in Kansas City, and once again contemplating the discharge
of McClearen? The only intervening circumstance was
McClearen’s initiation of his grievance at the Friday night
union meeting. In the situation outlined, it is very difficult
to avoid the inference that DeLoach, who did not ‘‘think’’
he had heard of the union meeting by Sunday, had indeed
not only heard of it but was in fact motivated by it in deter-
mining to discharge McClearen.8
I also find support for this conclusion in the change made
by DeLoach in the termination notice, from the way it was
written when it was handed to McClearen on July 6 to when
McClearen received it again thereafter. According to
McClearen, on July 6 DeLoach had written in, as the ‘‘De-
tailed Explanation,’’ ‘‘unsatisfactory work as a result in talk-
ing to [sic] much.’’ When he later received the same docu-
ment, DeLoach had added, ‘‘agitating other workers’’ and,
under ‘‘Remarks,’’ the words ‘‘not for rehire.’’ DeLoach was
not asked about the former alleged change, and as to the lat-
ter, he ‘‘could have added that or I could not have. I don’t
really remember that.’’
In view of McClearen’s seeming certainty, and DeLoach’s
lack thereof, on this point, I would credit McClearen. I
would also deduce that it must have been something new that
happened between Friday afternoon and Sunday which led
DeLoach to express this extra measure of vengeance.
I have considered the fact that, as McClearen testified,
DeLoach told him that if he wanted to talk to Tims, ‘‘[Y]ou
talk to him at the union meeting.’’ The implication could be
that DeLoach had no objection to McClearen urging his
grievance, as long as it was done at the appropriate time. But
there is a difference between an employer uttering a general-
ized statement such as the foregoing in the course of an ar-
gument and his receiving information that an employee
whom he has fired and then rehired has had the gall to file
a grievance in the teeth of his largesse. Something moved
DeLoach from condonation and rehiring9 on Friday to rein-
statement of the discharge on Sunday.
In the circumstances given, I draw the inference that
DeLoach had heard about McClearen pressing the grievance
at the Friday night union meeting10 and, angered (especially
in view of his having indulgently forgiven McClearen on Fri-
day), he determined on Sunday to let him go. He would not
have done so, I feel sure, if McClearen was only to work
a few more days. There is, finally, no longer any doubt that
a discharge of an employee for honestly pressing a contrac-
tual grievance is violative of the Act. NLRB v. City Disposal
Systems, 465 U.S. 822 (1984).
There is no direct evidence of this finding of motivation,
but, in these cases, there seldom is. I find that the proofs ad-
duced are in line with the requirements of Wright Line, 251
NLRB 1083, 1089 (1980), as approved in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983). I further
find that the ‘‘preponderance of the testimony taken,’’ the
General Counsel’s ultimate burden of proof as set out in Sec-
tion 10(c) of the Act, is met under the definition of that
phrase given by the Court of Appeals for the Sixth Circuit
in Jim Causley Pontiac v. NLRB, 675 F.2d 125, 127 (6th Cir.
1982): ‘‘more likely so than not so.’’
B. The Alleged Coercive Statements
As noted, the complaint alleges that on July 6 and 8, Re-
spondent, through DeLoach, violated Section 8(a)(1) by say-
ing that Respondent ‘‘did not want [McClearen] to discuss
grievances with the Union and that [McClearen] was being
fired because [McClearen] filed a grievance with the
Union.’’
As to the July 6 incident, it is obvious that DeLoach did
not intend to make any such blanket statement about
McClearen discussing grievances with the Union; indeed,
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 At the hearing, McClearen at first identified art. VII, sec. B,7
as the provision under which the membership was proceeding, but
thereafter changed his mind.
12 When asked by Respondent’s counsel about whether he had re-
ceived any correspondence relating to choosing a neutral party,
DeLoach replied, ‘‘No sir. All I know was hearsay out there on the
job.’’
McClearen testified that DeLoach said that he should pursue
his grievance at the union meeting rather than on the job. It
was only in the context of telling McClearen not to talk on
the job and thereby distract other employees that DeLoach
may have mentioned grievances; while there is a contention
made by the General Counsel on brief that there was dis-
parate treatment here, I do not find sufficient evidence of any
in the record. There is no reason to believe that DeLoach did
not credit Tims’s complaints about McClearen; they appear
to be the reason for the first discharge. I conclude that no
violation occurred on July 6.
As for July 8, I have already discredited McClearen’s tes-
timony that DeLoach, in firing McClearen, reproached him
for raising ‘‘so much God damn hell’’ in the union hall by
filing the grievance. I may be wrong, of course; McClearen
could have been telling the truth. But given my impression
of McClearen, DeLoach, the circumstances, and the thousand
particulates of fact, feeling, and logic which enter into these
determinations, I entertain a doubt sufficient to require dis-
crediting McClearen. I therefore would also dismiss the July
8 violation of Section 8(a)(1) alleged in the complaint.
C. The Failure to Abide by the Award
The complaint alleges that, in violation of Section 8(a)(1),
Respondent has refused to abide by an arbitration award in
favor of McClearen.
The record shows that at the union meeting of July 6, the
president purported to appoint two attending members to
make up part of a committee to entertain McClearen’s griev-
ance. The Respondent argues that the appointments must
have been to the ‘‘appeals committee’’ referred to in article
VII, section B,7 of the collective-bargaining agreement. I do
not think that provision is applicable, since it only deals with
complaints filed by ‘‘any applicant for employment,’’ which
McClearen was not (indeed, his claim was that he had been
employed and was unlawfully laid off for 1 day). I cannot
say with any certainty, however, that the union members did
not think they were proceeding under this section, since as
the record discloses, few, if any, grievances of any sort had
been formalized in the past, and to all appearances the mem-
bership was not very familiar with the grievance provisions
of the agreement.11 Article VII requires that the committee
be composed of ‘‘one member appointed by the union, one
member appointed by the Employer, and one public member
appointed by both of these members.’’
Among a more informed group, there would have been lit-
tle doubt that the proper provision under which McClearen’s
grievance should have been filed was article XV of the
agreement, entitled ‘‘Arbitration Committee,’’ which gen-
erally provides for disputes under the agreement to be ‘‘re-
ferred to a committee for arbitration.’’ Again, however, al-
though the term ‘‘public member’’ is not used in article XV,
as it is in article VII, the same basic procedure is: ‘‘One
member of the committee shall be selected by the Employer,
one by the Union, and the two shall select the third com-
mittee member.’’
The way selection was done in this case, however, was
that at the July 6 meeting, the president asked two members,
Phifer and Hurst, if they would serve on the committee. At
the time of the ‘‘arbitration,’’ which appears to have been 2
weeks or so after the union meeting, a third union member,
Ray Eaves, showed up and advocated Respondent’s case.
The genesis of Eaves’ appearance will be explained here-
after.
Respondent argues that the committee was jurisdictionally
defective, since no ‘‘public’’ or ‘‘neutral’’ member was se-
lected by the other two parties. Smalltown labor relations are
not to be expected to measure up to the standards of a soci-
ety of parliamentarians, however, and the evidence here con-
vinces me that there was sufficient compliance with article
XV. Kelly Wade, a witness for the Respondent, testified that
at the July 6 meeting, after a motion was made and seconded
that McClearen’s grievance be prosecuted, McClearen said
that he wanted member Ed Phifer to ‘‘represent him,’’ and
the membership then made a ‘‘motion,’’ or ‘‘appointed,’’
Vince Hurst to be the ‘‘neutral party,’’ and it was con-
templated that DeLoach ‘‘would select somebody to rep-
resent him.’’ Hurst was a member of the Union, but he was
self-employed.
Roy Brannon, DeLoach’s foreman who testified credibly
for the General Counsel, said that on July 9, he heard stew-
ard Tims tell DeLoach that ‘‘they had set up three people
board [sic] to view Willie McClearen’s complaint.’’ Tims
told DeLoach that Hurst and Phifer were going to be on the
committee, and apparently, although it is not definitively
clear, DeLoach said that ‘‘he didn’t mind it.’’ It thus appears
that DeLoach agreed to the composition of the committee.
Brannon further testified that DeLoach told him that
DeLoach ‘‘needed someone to—out there on the job to go
and be on that committee,’’ and DeLoach asked Brannon if
he would serve.
The testimony on the appointment of Respondent’s rep-
resentative was convoluted. As we have seen, Tims told
DeLoach about the ‘‘board’’ which had been set up and the
need for an Employer representative ‘‘to be on that com-
mittee.’’ DeLoach did testify that he had ‘‘hearsay’’ of such
a meeting from people in the field.12 After Brannon agreed
to ‘‘be on that committee,’’ he subsequently realized that he
had a previous engagement and so told DeLoach. In
Brannon’s presence, DeLoach asked Ray Eaves if he ‘‘would
do it’’ (Eaves evidently had been present when DeLoach had
originally asked Brannon to take the assignment), and Eaves
agreed.
Eaves testified that he was only present at the ‘‘arbitra-
tion’’ (Eaves’ usage of the word indicates his understanding
of the meeting) as a witness on Respondent’s behalf, to tell
DeLoach’s side of the story. Phifer somewhat ambiguously
testified that Eaves ‘‘was talking on the company’s behalf
without a doubt, but I can’t recollect him saying that this or
that was Kuhlman’s view of it or their wants.’’ Without con-
tradiction, McClearen testified that ‘‘Mr. Eaves and Mr.
Phifer and Mr. Hurst came out and told me that they had
found in my favor.’’ Business Agent Lewis called DeLoach
to say that ‘‘the committee told me to tell him’’ that Re-
485KUHLMAN, INC.
13 As counsel for the General Counsel notes, DeLoach’s first
choice as his representative was Foreman Brannon, who apparently
played no direct role in the dispute which gave rise to the grievance.
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
15 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
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.’’
spondent owed McClearen for a day’s work. DeLoach made
no response and never paid McClearen.
I believe that, in a rather haphazard way, Eaves did wind
up at the hearing in the role of ‘‘representative’’ of Respond-
ent. I do not believe, as DeLoach testified, that he thought
that this specially appointed ‘‘board’’ was just convened to
engage in some sort of preliminary assessment of the facts
of a 1-day pay claim. It is unfortunate, but not fatal, that the
arbitration committee was established in such an informal
manner. I conclude on the whole record that the committee
was the sort of proceeding contemplated by the bargaining
agreement; that DeLoach was told about, comprehended, and
approved its composition, purposes, and authority; that he
sent Eaves to the committee meeting as his arbitration rep-
resentative; and that Eaves (as McClearen uncontrovertedly
testified) acted together with Hurst and Phifer to make the
arbitration award.13
Neither the complaint nor the General Counsel’s brief con-
tends that Respondent’s refusal to pay the award violated
Section 8(a)(5) of the Act; both documents solely claim a
violation of Section 8(a)(3). I cannot conclude that the re-
fusal to abide by the award was motivated by antiunion ani-
mus; from the beginning, prior to McClearen’s grievance,
DeLoach took the position that McClearen was not entitled
to the day’s pay claimed, and I see no evidence that the re-
fusal to comply with the award indicates, as the General
Counsel argues, that Respondent thereby ‘‘persists in its dis-
criminatory conduct toward McClearen.’’
D. The Backpay Due to McClearen
Pursuant to 29 CFR 102.54(b), the General Counsel has
included in his complaint a backpay specification amounting
to $926.20, which includes $122.80 relating to the arbitration
award discussed supra. While Respondent’s answer generally
denies the discrete backpay allegations, its brief does not ad-
dress the backpay issue.
Accordingly, I shall assume that the formulae and figures
used in the backpay specification are acceptable to Respond-
ent as an accurate summary of the backpay to which
McClearen would be entitled if the case result favors him.
Therefore, the only adjustment I shall make is the elimi-
nation of the $122.80 which the specification includes for the
arbitration award. With this adjustment, the net backpay due
is $803.40.
CONCLUSIONS OF LAW
1. Respondent Kuhlman, Incorporated is an employer
within the meaning of Section 2(2) of the Act and engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local Union No. 407, United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL–CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By discharging Willie F. McClearen Jr. on July 8, 1990,
Respondent violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
5. In no other respect alleged in the complaint has Re-
spondent violated the Act.
REMEDY
Having found that Respondent has engaged in an unfair
labor practice, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative action to ef-
fectuate the policies of the Act.
It is appropriate that Respondent be required to pay Willie
F. McClearen Jr. the sum of $803.40 as backpay, with inter-
est as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), less taxes which should be withheld.
Provisions will also be made for the posting of an appro-
priate notice to employees.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, Kuhlman, Incorporated, Jackson, Ten-
nessee, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discriminating against employees for engaging in con-
certed activities protected by the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in their right to self-organization,
to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the pur-
pose of mutual aid or protection as guaranteed in Section 7
of the Act, or to refrain from any and all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Willie F. McClearen Jr. whole by paying him
$803.40, with interest and less taxes, to compensate for the
loss he suffered by reason of the discrimination against him
as set forth in the remedy section of this decision.
(b) Expunge from the personnel file of McClearen and
other files any reference to his discharge on July 8, 1990,
and notify him in writing that such discharge will not be
considered in any future personnel actions involving him.
(c) Post at its place of business in Jackson, Tennessee,
copies of the attached notice marked ‘‘Appendix.’’15 Copies
of the notice, on forms provided by the Regional Director for
Region 26, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately 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 Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date this Order what steps the Respondent has taken
to comply.
486 DECISIONS 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discriminate against employees because they
engage in protected concerted activity.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their
right to form, join, or assist unions, to bargain collectively
through representatives of their own choosing, to engage in
other mutual aid or protection, or to refrain from such activi-
ties.
WE WILL make Willie F. McClearen Jr. whole for the loss
he suffered as a result of our discrimination against him.
WE WILL expunge from our files any reference to the dis-
charge of McClearen and WE WILL not consider such dis-
charge in any future personnel actions affecting him.
KULHMAN, INCORPORATED