Litton Systems

National Labor Relations Board - Board Decisions

Aug 10, 1984

271 N.L.R.B. 915 (N.L.R.B. 1984)

LITTON SYSTEMS
Robins Engineers & Constructors, Division of Litton
Systems, Inc. and John Kaminski. Case 23-
CA-8914
10 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 10 June 1983 Administrative Law Judge
Richard J. Linton issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of
the judge's decision.
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 briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Robins Engineers & Constructors, Divi-
sion of Litton Systems, Inc., Rosenberg, Texas, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
"(a) Offer John T. Kaminski immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
] 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.
In fn. 16 of his decision, the judge discussed issues bearing on the ma-
teriality of his credibility resolutions. In adopting the judge's decision, we
find it unnecessary to reach these issues in view of our determination set
forth above.
2 To remedy the Respondent's unlawful discharge of employee John
T. Kaminski, the judge recommended, inter alia, that the Respondent be
ordered to offer Kaminski reinstatement, even though the particular
project on which he was employed has been completed. The Respondent
contends that reinstatement is inappropriate in the circumstances of this
case. We find no merit in the Respondent's contention. Reinstatement is
the Board's normal remedy for violations of this kind, and we find it ap-
propriate here. See C. B. Display Service, 260 NLRB 1102 (1982). We are
aware that, even absent unfair labor practices, the Respondent might
have terminated Kaminski at the end of the project. The record, howev-
er, does not clearly demonstrate that this would have happened. In fact,
absent unfair labor practices, the Respondent might have transferred Ka-
minski to another of its projects. This matter is properly left to the com-
pliance stage of this proceeding.
We shall, however, modify the reinstatement provision in the judge's
recommended Order to conform more closely to the Board's standard
practice in this type of case.
271 NLRB No. 148
without prejudice to his seniority or any other
rights or privileges previously enjoyed, discharg-
ing, if necessary, any employee hired after 22 April
1982 in order to facilitate Kaminski's reinstate-
ment."
2. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs.
"(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order."
3. Substitute the attached notice for that of the
administrative law judge.
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 ordered us to post and abide by this notice.
WE WILL NOT discourage any of you from join-
ing or supporting the International Brotherhood of
Boilermakers, Iron Shipbuilders, Blacksmiths,
Forgers and Helpers, Local Union No. 74, or any
other labor organization, by discharging or other-
wise disciplining union stewards because they fail
to comply with our request or instruction that they
appoint a temporary replacement steward before
they leave the jobsite.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer John T. Kaminski immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
WE WILL make John T. Kaminski whole, with
interest, for any loss of earnings he has suffered as
a result of our discharging him effective 22 April
1982.
WE WILL expunge from our files any reference
to our 22 April 1982 discharge of John T. Ka-
minski, and WE WIL L notify him in writing that this
has been done and that evidence of his unlawful
915
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge will not be used as a basis for future per-
sonnel action against him.
ROBINS ENGINEERS & CONSTRUC-
TORS, DIVISION OF LITTON SYSTEMS,
INC.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This
case was tried before me in Houston, Texas, on March 8,
1983, pursuant to the September 17, 1982 complaint
issued by the General Counsel of the National Labor Re-
lations Board through the Regional Director for Region
23 of the Board. The complaint is based on a charge
filed May 10, 1982, by John Kaminski (Kaminski or
Charging Party) against Robins Engineers & Construc-
tors, Division of Litton Systems, Inc. (Respondent or
Robins). l
The General Counsel alleges that Respondent violated
Section 8(a)(3) and (1) of the Act by discharging Charg-
ing Party Kaminski on April 22, 1982, because he failed
to appoint a replacement steward before leaving the job-
site on April 21, 1982, as Respondent had instructed.
By its answer, Respondent admits certain factual mat-
ters but denies violating the Act. Respondent defends on
the basis that Kaminski's unprotected conduct caused the
remainder of his crew to refuse to work for nearly 2
hours until a replacement steward was elected. Robins
fired Kaminski because of such refusal and the job delay
it allegedly caused.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent,
I make the following
FINDINGS OF FACT
1. JURISDICTION
At all times material herein Robins, a Delaware copor-
ation, maintained an office and place of business near
Thompson, Texas, where it was engaged in assisting, as a
subcontractor, in the construction of a fossil fuel power
plant. During the past 12 months, Robins puchased and
received goods and materials valued in excess of $50,000
from firms located outside the State of Texas, which
goods and materials were shipped directly to Robins at
its Texas location from points outside the State of Texas.
Respondent admits, and I find, that it is an employer
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION INVOLVED
Respondent admits, and I find that International
Brotherhood of Boilermakers, Iron shipbuilders, Black-
smiths, Forgers and Helpers Local Union No. 74 (Union
I All dates are for 1982 unless otherwise indicated. Kaminski has "T"
as a middle initial.
or Local 74), is a labor organization within the meaning
of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Nature of the Job
EBASCO was the general contractor for certain con-
struction on a power plant project of Houston Lighting
& Power Company at Smither's Lake in the Richmond,
Texas area. The plant generates electricity through the
burning of coal. Robins was a subcontractor on the
project for the purpose of installing a coal conveyor
system. Part of Robins' responsibility was to build and
install a dust collector device at the tripper deck inside
boiler no. 8 at the point where the coal conveyors enter
the boiler. The dust collector, a device to control polu-
tion, picks up the coal dust which falls from the convey-
ors, and returns it through a filter system back to the
coal conveyors (Tr. 9, 104, 109-110, 122-123).
Walter Standish, assistant business manager for Local
74, testified that pursuant to an initial staffing request
from John Tranchina, Respondent's assistant project su-
perintendent,2 he referred Jack E. Savage as the boiler-
makers' general foreman and John T. Kaminski as the
boilermakers' steward (Tr. 59, 68, 82). Standish explanied
that he made the referrals as designated by W.E. Wittge,
the business manager of Local 74 (Tr. 69). Savage ar-
rived on the job April 6 (Tr. 104), and Kaminski on
April 7 (Tr 8). Standish testified that he referred a total
of 12 to 18 boilermakers to the job (Tr. 68). Savage testi-
fied that it was his responsibility to supervise the boiler-
makers in building the dust collector system (Tr. 104,
123-124), and that when he finished the work on August
20 ahead of schedule he laid off the entire crew, includ-
ing himself (Tr. 120).3
Kaminski has been a boilermaker since 1942. He testi-
fied that Local 74 has referred him to several jobs as a
steward since 1969 and that he is familiar with the duties
of a steward (Tr. 27). Savage testified that he had been a
member of Local 74 for 7 years (Tr. 101, 142), and that
although he previously had served as a steward, only
once before had he served as a general foreman (Tr.
102).
Three witnesses testified in this proceeding. The Gen-
eral Counsel called Kaminski and Standish, and Re-
spondent called Savage. Standish also was called as a re-
buttal witness by the General Counsel.
B. The Events of April 21, 1982
1. Kaminski leaves the job
On April 21 Kaminski arrived at the job shortly before
the 7 a.m. reporting time. Because of heavy rain in the
area several crew members were absent. As of that date
the scheduled crew consisted of seven or eight employ-
2 Tranchina also is referred to in the record as the superintendent.
3 At one point Savage testified that the job lasted 7 months (Tr. 115).
As the work of Robins which Savage supervised lasted less than 5
months, the 7 months must be a reference to the length of the entire job
of Robins constructing the coal conveyor system or to the complete
EBASCO construction at the jobsite.
916
LITTON SYSTEMS
ees. Savage was present in the boilermakers' shack as
was Steve Schwab, an apprentice. According to Ka-
minski, Savage stated that if the rest of the crew did not
show up "we will go home at 7:30." (Tr. 11) Both Ka-
minski and the apprentice replied that such sounded
good to them because they had other things to do.
Savage then left for the superintendent's office. On his
return Savage reported that the superintendent said they
could go up and do some cleaning at the project since
the regular work could not be done without the balance
of the crew (Tr. 12, 36-37). As they walked toward the
elevator Kaminski told Savage that his mind was set on
going home where he had some things to do. Kaminski
also noted that most of the crew was absent. Savage told
him there was no need for him to ride up the elevator
then, and inquired as to who was going to be the stew-
ard since the apprentice could not be appointed (Tr. 12-
13, 37-38). It is unclear, even under Kaminski's version,
whether Kaminski responded with anything more than
that he would see Savage the next day.
Under Savage's version, a couple minutes before 7
a.m. he went to see Superintendent Tranchina concern-
ing whether they were to work that day because the
men had asked if they were being rained out. He re-
turned to the shack around 7:10 a.m. and reported to the
group4 that they would work since they would be work-
ing inside. Savage testified that the work location was
under a roof (Tr. 110-111, 152). Apprentice Schwab
"whined and cried," and Kaminski stated that he wanted
to go home and work on his house.5 He denies saying
that the job would not work or that the men could go
home (Tr. 106).
Savage testified that as he and Kaminski walked
toward the elevator to the project, Kaminski kept repeat-
ing that he was going home, and Savage repeatedly said
that Kaminski had to appoint a replacement steward. He
told Kaminski, "This job cannot run without a steward,
because these people won't work without a steward.
They are supposed to, but they don't." (Tr. 106). Ka-
minski replied that Savage could not make him stay,
"muttered" something to Savage, and walked off toward
the gate (Tr. 107). At that point Savage went upstairs to
the crew (Bowlin and Schwab) "and I asked them if Mr.
Kaminski showed up, and they said that he had not been
up there"5 (Tr. 107).
Under all the circumstances, including the logic of the
situation, the discrepancies in Savage's testimony, 7 and
4 Savage asserts that Foreman Jim Bowlin also was present (Tr. II).
a Savage's version is rather disjointed on the sequence of events. At
one point he places Schwab as present and "whining" at the news (Tr.
132), but then states that Bowlin and Schwab had already left for the ele-
vator (Tr. 133). He admits on cross-examination that common sense dic-
tates the conclusion that those two, as well as Kaminski, would have re-
mained waiting for Savage's report, and Savage ends his testimony on
this detail by saying he cannot recall, but thinks that Bowlin and Schwab
had already gone to the elevator and up to the project on their own
before Savage returned (Tr. 133).
s Savage does not explain why he would ask Bowlin and Schwab if
they had seen Kaminski when Savage had just parted from Kaminski and
the steward was heading for the gate.
7 I do not overlook a "To Whom It May Concern" statement, dated
May 13, 1982, signed by Savage with copies to the Union, which is con-
sistent with his testimonial version (R. Exh. 5). Although there is no evi-
dence that Local 74 responded in writing to the statement, I take note of
the demeanor of the witnesses, I conclude that Kamins-
ki's version is the more accurate and reliable. This is not
to say that every portion of Savage's is unreliable, and to
the extent that his version is consistent with and supple-
ments Kaminski's I accept it.
2. Savage telephones Standish
At the hearing Savage described what occurred lead-
ing up to his discharge of Kaminski.8 From about 7:15 or
7:30 a.m. on April 21 until about 8:15 a.m., or so,
Savage, Bowlin, and Schwab sat around upstairs doing
nothing because Bowlin and Schwab refused to work
without a steward. 9 After about an hour of "riding the
clock," around 8:20 a.m. or so, Savage went to Superin-
tendent Tranchina and reported the situation. Tranchina
said the men needed to go to work. Savage replied that
the men would not work without a steward. Tranchina,
according to Savage, responded that he was going to
come up and "check on" Savage (Tr. 135). Savage told
Tranchina that he would go back and "check" the situa-
tion. Savage had been gone from the crew about 35 to
40 minutes. On his return Savage discovered that Jim
Thatcher, apparently a journeyman boilermaker, had just
arrived. The group, including Savage, elected Thatcher
to be the steward (Tr. 112, 135). The crew, with Thatch-
er as the steward, began to work (Tr. 134).' ° None of
the rest of the three or so other members of the crew
showed up that day (Tr. 111, 151).
According to Savage, after the crew began working,
with Thatcher as steward, Savage telephoned Assistant
Business Manager Standish (Tr. 112). Savage reported
that Kaminski had left the job without appointing a re-
placement steward. Savage asked if he had permission to
terminate Kaminski and Standish replied, yes (Tr. 113,
143). Savage then testified (Tr. 114):
I told Mr. Standish to call Kaminski and inform him
that he has been terminated, and he said that he
would if he got to it. So later on that afternoon I
called him back and asked him if he had called Mr.
Kaminski and he said he had not gotten to it. So I
asked one of the girls in the office to call Mr. Ka-
minski and tell him that he was terminated for fail-
ure to follow [his] duties as steward.
Standish, Savage testified, said he would send Bill
Brumblelow as a replacement steward the following day.
the fact that the date of May 13 falls after the charge was filed herein by
Kaminski on May 10.
* Savage testified in a disjointed fashion, and the version set forth here
is that which I find occurred based on a composite of the evidence.
9 Savage admits that he was not supposed to sanction such idleness
(Tr. 134).
10 Although Savage testified that he felt that it was proper for him to
vote for a steward since he is a member of Local 74 (Tr. 145), and that
he believes that anyone, including an apprentice, who is a member of the
Union could be appointed as steward (Tr. 103-104, 141), he never ex-
plained why he, Bowlin, and Schwab did not elect Schwab to be the
steward shortly after Kaminski left and Savage arrived upstairs. This lack
of explanation further supports Kaminski's credited version that when
Savage asked him about the steward replacement, Savage stated that the
apprentice could not be appointed steward (Tr. 13).
917
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is undisputed that the following day Brumblelow did
report to the job as steward.
According to Savage, the reason he asked for permis-
sion to terminate Kaminski is that he was of the opinion
that such permission was necessary in the case of a stew-
ard (Tr. 124-126, 144). Indeed, if the Union had not
given permission, Savage testified that he would not
have fired Kaminski (Tr. 126).
Standish denies giving Savage permission to discharge
Kaminski. At the hearing Standish apparently became
confused as to the number of times he had spoken to
Savage on the subject, and erroneously split one conver-
sation on April 21 into two, the first being on April 21
and the second the following day. He conceded that cer-
tain quotations from his pretrial affidavit accurately
dscribed the April 21 telephone conversation he had
with Savage (Tr. 95). In light of such affidavit-aided
recollection, it appears that when Savage called on April
21 he asked for a replacement steward because, as he re-
lated, he had fired Kaminski because the steward had
walked off the job without appointing a replacement
steward.
Savage did not ask for permission to fire Kaminski,
and Standish affirmatively told Savage that he could not
fire Kaminski for failure to perform the duties of a stew-
ard. Standish informed Savage that it was up to the
Union's business manager to decide whether the steward
was performing his duties properly and whether to re-
place the steward if he is not doing his job as a steward.
Standish remarked that he would be over to talk to
Savage in a day or two about the matter (Tr. 72, 92-93).
Standish testified that while a steward may appoint a
temporary replacement, he may not appoint an appren-
tice or a supervisor (Tr. 80).
For various reasons, including demeanor, I credit
Standish over Savage. While it may be possible that
Savage could have held the erroneous view that he
needed the blessing of Local 74 in order to terminate the
job steward, I am persuaded that he did not hold any
such opinion. Rather, I find that Savage, who also had
been general foreman once before, was well aware of his
authority to discharge any boilermaker, including the
steward, without needing any permission from Local 74.
Nothwithstanding Robins' argument on brief that Savage
should be credited because he is the only "completely
disinterested" witness in the case, I am persuaded that
Savage testified here in opposition to his union represent-
ative because Savage keenly resented Kaminski's failure
to follow his instructions to appoint a replacement stew-
ard. His interest, I find, was to justify the actions he took
in April 1982. I therefore find that in their conversation
of April 21, Savage reported the discharge and why, and
Standish expressed his opinion that Savage had over-
stepped his authority in discharging Local 74's steward
for reasons which fall within the internal affairs of the
Union.
I Even under Savage's version Standish did not call Kaminski to
convey the news of his discharge. The absence of a call to Kaminski by
Standish supports the version of Standish that he expressed a negative re-
action to the news as reported to him by Savage.
C. The Discharge Notices
Kaminski learned of his discharge from his wife who
told him (apparently on April 21) that a woman had
called from Robins and reported that he had been fired
(Tr. 15). Presumably the caller said that Kaminski could
pick up his check the following day.
The following day, April 22, Robins' office secretary
gave Kaminski his check at the guard shack shortly after
7 a.m. She asked Kaminski to sign a receipt dated April
22, 1982, which contains the handwritten notation, "Fail-
ure to follow the duties as steward." (G.C. Exh. 2b.)'2
In signing, Kaminski added his own notation: "I don't
agree." Kaminski then went to the union hall where he
spoke with Standish and Business Manager Wittge (Tr.
19). They expressed the view that Respondent "can't do
that," and Wittge said he would investigate the matter
(Tr. 39, 47, 70-71). Kaminski declined their suggestion
that he file a grievance (Tr. 31, 39), and on May 10 he
filed the instant charge.
A few days after Kaminski reported his discharge,
Wittge and Standish visited the jobsite on another
matter. It is undisputed that they told Savage that ap-
pointing and removing stewards was the Union's business
and that he had no right to discharge Kaminski for fail-
ing to perform the duties of steward (Tr. 147-148).13
Savage rejected their request that Kaminski be returned
to work, as did Tranchina (Tr. 73-74, 148-149). Al-
though at one point Savage testified that the reason Ka-
minski was not taken back was because he would walk
off the job as a boilermaker (Tr. 148-149), he clarified
that position on cross-examination by further testifying
that if Kaminski had designated a replacement steward
he would been free to go (Tr. 150). Thus (Tr. 150-151):
Q. So what we have basically is the problem as
you have viewed that it was not the fact that Mr.
Kaminski left the job as such; rather, he left the job
and had not set somebody up as a steward. That
was the nature of the problem. Is that correct?
A. That is correct.
Kaminski testified that about April 29 he received a re-
vised termination notice (Tr. 19). The new notice, signed
by Savage, contains the typed notations (G.C. Exh. 3):
Reduction in force
NOTE: Disregard previous termination dated 4-22-
82
Savage testified that about 2 days after Kaminski's dis-
charge Standish telephoned and requested that Savage
change the reason so that Kaminski could draw unem-
ployment benefits (Tr. 116-117, 144-145). He further tes-
tified that he agreed to do so for that reason and for the
further reason that a discharged employee, under union
12 Savage testified that a copy of the termination notice was sent to
Local 74, although he could not recall whether it was a copy of the doc-
ument bearing Kaminski's signature or not (Tr. 116).
1a Although the date of the visit is in dispute (Tr. 147), I need not
resolve this immaterial conflict.
918
LITTON SYSTEMS
rules, cannot be referred to another job for 15 days (Tr.
116-117).
According to Savage, in this conversation Standish
said that it was up to the Union to decide whether a
steward is doing his job properly (Tr. 119). Standish
denied making any such request that the termination slip
be revised so that Kaminski could obtain unemployment
benefits (Tr. 78, 155).
The version advanced by Savage is inherently proba-
ble. I note that Standish's recollection of events is not
completely reliable, and that no plausible reason has been
advanced as to why Savage would testify falsely on this
point. Although I have discredited Savage in other re-
spects, I find that his testimony on this matter has the
ring of truth. The relevance of such a finding, however,
appears to be limited to credibility generally.1 4
Although the only relevance is by way of explaining
the delay between the May 10 charge and the September
17 complaint, I should note that on June 23 the Region
dismissed Kaminski's charge for "insufficient evidence"
(R. Exh. 1), and on August 27 the General Counsel's
Office of Appeals sustained Kaminski's appeal because
the termination "presented issues warranting Board de-
termination based on record testimony developed at a
hearing before an Administrative Law Judge." (R. Exh.
2.)
D. Analysis and Conclusions
Citing a variety of cases, including Radio Officers v.
NLRB, 347 U.S. 17 (1954), and Scofield v. NLRB, 394
U.S. 423 (1969), the General Counsel argues that Re-
spondent violated Section 8(a)(3) and (1) of the Act by
singling out Kaminski for discharge because it felt he
should have taken certain affirmative action, while with-
holding discipline as to other employees who refused to
perform work, and by, in essence, intruding on the inter-
nal affairs of the Union.
Robins argues that the General Counsel is inappropri-
ately seeking here to extend the concept of Precision
Castings Co., 233 NLRB 183 (1977).15 Acknowledging
that it had been unable to find a factual similar case, Re-
spondent relies on the rationale of certain language used
by the Circuit Court in Gould Inc. v. NLRB, 612 F.2d
728, (3d Cir. 1979), that "it was a breach of duty imposed
by his office and not his office as such which formed the
basis for his discharge." Immediately preceding that quo-
tation, however, the Circuit Court asserts that the stew-
ard's duty there to take affirmative action to end an un-
lawful strike was a duty imposed on him by the collec-
tive-bargaining agreement.
In our case, there was no collective-bargaining agree-
ment and there was not a contractual no-strike clause.
There was no contractual duty that the Union's job
steward do anything. It therefore appears that cases such
as Precision Castings, id., in which the steward does not
play a leadership role, and Midwest Precision Castings Co.,
244 NLRB 597 (1979), where the steward does instigate
14 That is, the point in dispute is merely ancillary to the critical events
rather than being one of them.
Is The Supreme Court recently affirmed the Board's Precision Castings
doctrine in Metropolitan Edison Co. v. NLRB, 460 U.S 693 (1983).
the action or have a leadership role, are not squarely in
point. This is all the more true here where a strike or
work stoppage was not involved in the usual sense.
While a work stoppage did develop, it occurred after
Steward Kaminski left the job and was in response to the
situation of no steward. As Savage testified, Kaminski
would have been free to leave if he had just appointed a
replacement steward. Thus, Respondent did not deem
Kaminski's departure, standing alone, as improper. t
What is in point are cases asserting that an employer
violates the Act by threatening to take job action, or im-
posing discipline, on an employee in a manner which in-
trudes on the internal affairs of a union. Thus, as Admin-
istrative Law Judge Michael O. Miller noted in Metropol-
itan Edison Co., 252 NLRB 1030, 1035 (1980), affd. 460
U.S. 693 (1983):
Further, Respondent's action intruded on the inter-
nal affairs of the Union when it arrogated the right
to discipline for "misuse of union office."
And in Postal Service, 258 NLRB 1414 (1981), the em-
ployer was found to have violated Section 8(a)(1) of the
Act when Superintendent Coombs threatened Union
Steward Dumont with suspension if the steward refused
to represent an employee. The Board stated at 1414:
Thus, despite what Coombs may have perceived
was Dumont's obligation as a steward, by his
threatening Dumont's employment status in connec-
tion with his performance as a union steward, he
coerced Dumont and interfered with his Section 7
rights to engage or not engage in union activities as
the steward. Coombs' action was thus violative of
Section 8(a)(1) of the Act.
In light of the foregoing, I find that Respondent vio-
lated Section 8(a)(3) and (1) of the Act by discharging
Kaminski effective April 22, 1982.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Local 74 is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging John T. Kaminski effective April 22,
1982, because he failed to appoint a replacement steward
on April 21, 1982, before leaving the job, Respondent
violated Section 8(a)(3) and (1) of the Act by intruding
on the internal affairs of a labor organization in order to
impose discipline on John T. Kaminski, thereby unlaw-
fully discouraging membership in and support of a labor
organization.
is For that reason, the credibility resolutions I have made herein are
immaterial. Thus, whether Standish gave Savage permission to fire Ka-
minski is not controlling because such telephonic permission, constituting
a waiver of Kaminski's statutory rights under Sec. 7 of the Act, would
not satisfy the strict standards for waiver enunciated by the Supreme
Court in Metropolitan Edison, id. Regardless of whether a waiver may be
oral, it is clear that any waiver of statutory rights must be "clearly un-
mistakable" and done within the collective-bargaining framework. Those
conditions did not prevail here.
919
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Robins Engineers &
Constructors, Division of Litton Systems, Inc. has en-
gaged in and is engaging in unfair labor practices in vio-
lation of Section 8(a)(3) and (1) of the Act, I shall rec-
ommend that Respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
Respondent shall be ordered to make John T. Ka-
minski whole for any loss of pay he suffered by reason of
his unlawful discharge. Any backpay found to be due
shall be computed in the manner established by the
Board in F. W Woolworth Co., 90 NLRB 289 (1950), with
interest computed in the manner prescribed in Florida
Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962). Respondent shall
expunge from its files any reference to its unlawful termi-
nation of Kaminski on April 22, 1982. Sterling Sugars,
261 NLRB 472 (1982).
Although the particular job in question has been com-
pleted, Respondent will be ordered, as requested by the
General Counsel, to offer Kaminski reinstatement to a
substantially equivalent job at any project it may have
underway, or for which it is hiring, within the territorial
jurisdiction of Local 74.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed' 7
ORDER
The Respondent, Robins Engineers & Constructors,
Division of Litton Systems, Inc., Rosenberg, Texas, its
officers, agents, successors, and assigns, shall
1. Cease desist from
(a) Discouraging membership in International Brother-
hood of Boilermakers, Iron Shipbuilders, Blacksmiths,
Forgers and Helpers, Local Union No. 74, by discharg-
ing or otherwise disciplining a union steward who fails
to comply with a request or instruction that he appoint a
temporary replacement steward before he leaves the job-
site.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
17 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.
their rights to self-organization, to form, join, or assist
International Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers and Helpers, Local Union
No. 74, or any other labor organization, to bargain col-
lectively through representatives of their own choosing,
to act together for the purpose of collective bargaining
or mutual aid or protection, or to refrain from any or all
such activities.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act.
(a) Offer John T. Kaminski reinstatement to a substan-
tially equivalent position of employment at any project it
has underway, or if none is underway, for which it hires
during the 60-day posting period of the notice described
below, within the territorial jurisdiction of International
Brotherhood of Boilermakers, Iron Shipbuilders, Black-
smiths, Forgers and Helpers, Local Union No. 74, with-
out prejudice to his seniority or any other rights or privi-
leges previously enjoyed, discharging, if necessary, an
employee hired after April 22, 1982, in order to facilitate
the reinstatement of Kaminski.
(b) Make John T. Kaminski whole for any loss of
earnings he may have suffered by reason of his discrimi-
natory discharge in the manner set forth in the section of
this decision entitled "The Remedy."
(c) Expunge from its files any reference to the April
22, 1982 termination of John T. Kaminski, and notify
him in writing that this has been done and that evidence
of the unlawful termination will not be used as a basis
for future personnel action against him.
(d) Post at its office, and at every jobsite where it is
working within the territorial jurisdiction of Local 74,
signed and dated copies of the attached notice marked
"Appendix."' 8 Copies of said notice, on forms provided
by the Regional Director for Region 23, after being
signed by Respondent's authorized representative, shall
be posted immediately upon receipt and maintained by
the Respondent for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
to ensure that such 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 Respondent
has taken to comply.
I" 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
920