Mashuda Corp.

National Labor Relations Board - Administrative Judge Opinions

Dec 19, 2003

06-CA-033414 (N.L.R.B. Dec. 19, 2003)

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Pittsburgh, PA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

MASHUDA CORPORATION

and Case No. 6-CA-33414

GARY V. SINGER, AN INDIVIDUAL

Dalia Belinkoff, Esq.,
for the General Counsel.
Charles R. Volk, Esq., of Sewickley, Pa.
for the Respondent.

DECISION

Statement of the Case

Eric M. Fine, Administrative Law Judge. This case was tried in Pittsburgh, Pennsylvania
on October 1, 2003. The charge was filed on May 2, 2003, by Gary V. Singer against Mashuda
Corporation (Respondent). The Complaint issued on July 21, 2003, and alleges that:
Respondent violated Section 8(a)(1) of the Act by informing an applicant he was not hired
because of his support for and activities on behalf of International Union of Operating
Engineers, Local 132, AFL-CIO (Local 132); and Respondent violated Section 8(a)(1) and (3) of
the Act by refusing to hire Singer since on or about March 14, 2003.1

On the entire record, including my observation of the demeanor of the witnesses,2 and
after considering the briefs filed by the General Counsel and Respondent, I make the following

Findings of Fact

I. Jurisdiction

Respondent, a corporation, with an office and place of business in Cranberry Township,
Pennsylvania has been engaged in the business of highway construction. During the twelve
month period ending April 30, Respondent in the operation of its business purchased and
received at its Cranberry Township location goods valued in excess of $50,000 directly from
points outside of Pennsylvania. Respondent admits and I find it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and that Local 132 is a
labor organization within the meaning of Section 2(5) of the Act.

1 All dates are in 2003, unless otherwise specified.
2 In making the findings herein, I have considered all the witnesses’ demeanor, the content
of their testimony, and the inherent probabilities of the record as a whole. In certain instances, I
have credited some but not all of what a witness said. See NLRB v. Universal Camera
Corporation, 179 F. 2d 749, 754 (C.A. 2), reversed on other grounds 340 U.S. 474 (1951).

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II. Alleged Unfair Labor Practices

Respondent has been in business since 1922. Ralph Mashuda has been Respondent’s
president and owner since February 2001.3 Mashuda has worked for Respondent for 32 years
in various capacities. Mashuda testified Respondent has a long standing affiliation with the
Operating Engineers. Singer has been a member of Local 132 for 27 years. Singer and Local
132 Business Agent Mike O’Hara testified that Local 132 operates a hiring hall where when a
contractor obtains a job within Local 132’s jurisdiction they call the union, state the skills
required, and the first person on Local 132’s list with the appropriate skills is sent to the job.

A. Singer’s employment history and efforts to obtain work at Respondent

Singer’s testimony reveals:4 Respondent employed Singer pursuant to Local 132
referrals in 1982, 1985 and 1990. In 1982, Singer worked for Respondent as a drill operator
and his supervisor was Superintendent Dave Mashuda. In 1985, Singer worked for Respondent
as a master mechanic, and he reported to Superintendent Lombardo. Singer worked for
Respondent in 1990 as a master mechanic and Huffman was the equipment foreman on that
job. The company mechanic on the job was Dennis Drummond. The company mechanic is a
union position with skills similar to a master mechanic, but they travel with the employer from job
to job, as opposed to being referred by the union hall. When Singer was a master mechanic in
1985 and 1990, Respondent rented Singer’s truck and Singer negotiated with Vic Mashuda,
Ralph Mashuda’s father, for the rental rate.

Singer’s testimony reveals that: As Respondent’s 1990 job was winding down, Huffman
told Singer that he was going to be laid off. Singer responded Drummond is out of Operating
Engineers Local 66 (Local 66), this is my area referring to Local 132’s jurisdiction, and
Drummond should be laid off before Singer.5 Huffman said Drummond was Respondent’s
company mechanic, had been with them for years and they were going to keep him. Singer
said, according to our contract, it was Singer’s area and Singer should be the one to stay.
Singer contacted the job steward who asked Local 132’s business manager to intervene and the
business manager interceded in Singer’s behalf with management. As a result, Drummond was
transferred to another jobsite within a few days, and Singer remained working at the jobsite in
question for another 3 or 4 months. Singer was not laid off until the job ended. Singer testified
that while he worked on this job in 1990, Respondent had pieces of equipment that were greasy
and needed cleaning. Respondent brought in a steam jenny to steam clean the equipment and
Respondent assigned a laborer to operate the steam jenny. Singer told Huffman running the
steam jenny was operators’ work. Huffman responded in Pennsylvania it was laborers’ work.
Singer said we are not in Pennsylvania and according to their contract the steam jenny belongs
to operators not laborers. The import of Singer’s testimony was that he was assigned to run the
steam jenny, rather than the laborer, as a result of Singer’s protest.

In February 2003, Singer learned Respondent would be working on a job widening a
section of Route 2 in West Virginia (the Follansbee job). Singer called Local 132 and was told
3 Ralph Mashuda is the only individual named Mashuda to testify in this proceeding and will
be referred to as Mashuda. Respondent admits that Mashuda, General Manager Robert
Mellon, Equipment Foreman Ronald Huffman, and Superintendent D.J. Lombardo are its
supervisors and agents within the meaning of Section 2(11) and 2(13) of the Act.
4 I have found, considering his demeanor, that Singer was a credible witness and have
credited his testimony in all respects unless otherwise stated in this decision.
5 Local 66 is based in Pennsylvania, and Local 132 is based in West Virginia.
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the planned start date was early March. Singer testified he was the top mechanic on Local
132’s referral list at the time of his call.6

On February 25, Mashuda, Mellon, and Lombardo attended a pre-job conference on
behalf of Respondent for the Follansbee job. There were several union officials present
representing different trades, including O’Hara representing Local 132. Mellon prepared the
typewritten minutes of the meeting. The minutes reveal that Lombardo was the project
superintendent, the anticipated start date for the job was March 3, and the anticipated
completion date is October 2004. The minutes reveal that the project was “identified and
confirmed by all present as a ‘Targeted WV Agreement’” referencing Local 132’s master
agreement. The minutes state Mashuda identified the project as a significant waste hauling job
that was very dependent on a production schedule “with 2.3 million yards of earth to move in
only 104 days.” It is stated in the minutes “timing is critical to the success of the project.”
Respondent did not list any special skills in the minutes for the operating engineers to be
referred on the job, although it did so for Teamster referrals. O’Hara credibly testified that,
during the conference, O’Hara was told Respondent needed mechanics. O’Hara responded
Singer was the first on the list, and he named two other mechanics.

Singer contacted the Local 132 in mid to late March and spoke to O’Hara.7 During the
conversation, Singer asked O’Hara if Singer was going to be assigned to the Follansbee job.
O’Hara said he had bad news, that Mashuda had sent O’Hara a letter stating that he did not
want Singer on the job. The letter marked to O’Hara’s attention and signed by Mellon states,
“Due to past performance and personality conflicts with other mechanics and employees we are
requesting at this time not to have Mr. Singer sent to our project.” Singer said he did not
understand why he was not wanted. O’Hara said Mashuda said he would be at the Follansbee
jobsite the following Wednesday, and Singer could meet Mashuda there.

Singer testified that: Singer went to the Follansbee site the Wednesday after his call with
O’Hara. At the site, Singer was told that Mashuda was not there, that he was in meetings all
day. Singer called O’Hara and informed him of what transpired. O’Hara gave Singer a phone
number for Mashuda. Singer called Mashuda, who apologized and agreed to meet Singer at
the jobsite the following week.

Singer testified he rode out to the job site with O’Hara the following Monday. Singer
spoke to Mashuda in the parking lot. No one else was present for the conversation. Singer’s
credited testimony reveals the following: Singer asked Mashuda why he did not want Singer for
the job. Mashuda said his people said Singer was a pain in the neck. Singer said he did not
understand and asked who made this accusation. Mashuda said, “maybe you just PO'd
somebody real good.” Singer asked how, and Mashuda replied you bad mouthed Respondent.
Singer said he did not know where that was coming from. Singer said he worked for
Respondent on several different occasions and Singer drove up to one of the company picnics
in Evans City, Pennsylvania because Mashuda’s father had a 50 year anniversary party for the
6 Singer’s testimony on this point is confirmed by Local 132’s March 2003 out of work list.
Singer is number 64 on the list with a December 13, 2002, sign up date. Singer is listed as a
master mechanic, a welder, and as having a truck with tools. Andrew Potter, who Respondent
hired for the Follansbee job rather than Singer, is listed as number 132 on the list with a
February 28, 2003, sign up date.
7 Singer estimated that this conversation took place on March 14. However, Singer testified
that, during the phone call, O’Hara informed Singer of a letter O’Hara received from
Respondent, and the letter is dated March 14.
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business. Singer told Mashuda if Singer thought poorly of the company, he would not have
gone out of his way to attend this function. Mashuda said it was not a problem with Singer’s
ability to do the job and there was no problem with his truck, it was just a personality conflict.
Singer told Mashuda he did not understand the personality conflict assertion because he was
not aware that he had any problems with anyone. Singer asked who the problem was with, but
all Mashuda would say was it was his people. Mashuda then said, “maybe you was too union
for us.” Mashuda went on to state you are a union man. Singer replied he was and was proud
of it.8 Mashuda told Singer that Mashuda wanted mechanic Andy Potter on the job because
Potter was well versed in repairing Respondent’s 90’s scrapers, which are dirt moving
machines. Mashuda said he would talk to some more people and get back to Singer. Mashuda
said in a couple of weeks he would be starting a night shift. Singer cut him off, and said “if Gary
Singer is not good enough to work for you on day shift, he sure is not good enough to work night
shift for you.”9

O’Hara credibly testified to the following: O’Hara spoke to Mashuda around March 28
and Mashuda requested a mechanic the following week stating he wanted Andrew Potter for his
expertise on the 90’s scrapers. O’Hara told Mashuda that he had to refer Singer because he
was first on the list. Mashuda said do what you have to do. O’Hara testified that since Singer
was qualified as a master mechanic Singer should have the skills to repair every piece of
equipment including the 90’s scrapers. O’Hara testified, besides the 90’s scrapers, there were
numerous other pieces of equipment on the job including hoes, dozers, and trucks. O’Hara
testified that, following his conversation with Mashuda, O’Hara had Singer referred out to the
job, not as a master mechanic, but as a mechanic. O’Hara testified that he and Mashuda had
already agreed that Owens was going to be the master mechanic on the job.

Singer testified Mashuda called him on March 31, and told Singer he had not gotten a
chance to talk to other people, but that he was going to stick with the letter he sent. Singer said
he could not let the matter go because this was how he made his living, and this was the only
job in the area. Singer called Local 132 on March 31, and told Donnie Miller, the dispatcher,
that Mashuda called and said he was going to stick with the letter. Singer asked to speak with
O’Hara, who returned Singer’s call and said he had spoken with the Local 132’s attorney, who
told O’Hara that until Singer was hired there was nothing the union could do for him.

Singer’s testimony reveals that: On April 2, Miller called Singer and said Mashuda called
for a mechanic the next morning, and Miller asked if Singer was interested. Miller said he knew
about Respondent’s letter, but O’Hara told Miller to offer Singer the job. Singer went out to the
Follansbee site on April 3, and there were three men there, one of whom Singer recognized
from prior work. Singer asked where he should sign up. All three stated they did not know
Respondent was hiring today. Singer said the Operating Engineers hall sent him as a
mechanic. One of them obtained a W-2 form and other paperwork for Singer to fill out. After
Singer completed the paper work, one of the men returned and asked Singer who actually sent
you here. Singer said the Operating Engineers union hall. The man told Singer that he just
spoke with Lombardo, the superintendent, who said he did not call for a mechanic, and they had
no need for a mechanic. Before leaving the site, Singer saw Paul Owens, the master mechanic
8 Singer testified he understood Mashuda to mean Singer was a strong union person.
9 I have credited Singer’s testimony as to this conversation. Mashuda admitted to having a
conversation with Singer at the job site, and Mashuda did not dispute Singer’s account of the
conversation, except Mashuda testified he offered Singer a position on the night shift. To the
extent their testimony varies on this point, I have credited Singer’s account over that of
Mashuda’s.
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at the site, and asked him what was going on. Singer said Local 132 referred him to the site,
but no one in the office knows anything about it. Owens said he had been trying to get them to
put another man on because he needed help, but they would not hire anyone. Lombardo, who
Singer had known from prior jobs, came over and said he did not know what was going on that
he never called for a mechanic. He said he did not have enough work to keep Owens working,
let alone another mechanic. Singer said he would contact the union hall and then left.

Singer’s testimony reveals that: After Singer arrived home on April 2, Lombardo called
Singer and apologized about telling Singer they were not hiring. Lombardo said he checked into
it, and knew all about the letter Mashuda sent. Lombardo said he was a 30 year veteran with
Mashuda and he did not want to jeopardize his job. Lombardo said Mashuda told him to stick
with the letter, so Lombardo could not hire Singer. Singer asked if Lombardo had a problem
with Singer on the job. Lombardo said no, but he worked for Mashuda and did not want to
jeopardize his job. Singer told Lombardo he did not expect him to stick his neck out for him.
Singer said he considered Lombardo his friend. Lombardo said yeah we are friends because
we went to ox roasts and everything else together.

Singer testified that during the three occasions he worked for Respondent he was never
let go before the job ended, he never received discipline, and no one spoke to him about the
quality of his work. Singer testified he has worked on 90’s scrapers in that he has operated
them, assembled them, adjusted frictions and brakes, and has done anything that needs to be
done to them. Singer testified he worked on these machines during job in the 1990, as well on
the other jobs for Respondent.

Singer has worked for the Trumbull Corporation three different occasions, the last time in
2001 as a master mechanic, day shift. Singer testified Owens also worked on that job on the
night shift. They did not work together and their jobs did not overlap. Singer testified he has
never worked with Owens. Singer left the job when it was completed. Singer was not
disciplined on that job.

Singer testified the day shift is a lot faster paced than the night shift, and you have to
know more to work on the day shift as a mechanic since it is a higher profile job. At the time of
the hearing, Singer was working as a night shift master mechanic for Beaver Excavating
Company at a location in West Virginia. Singer testified that this is a union job and the night
shift pay is the same as that on day shift.

B. Respondent’s witnesses

Respondent called Mashuda, Huffman and Owens as witnesses and their testimony was
contradictory, and internally inconsistent. Considering their demeanor and the content of their
testimony, I did not find them to be worthy of belief concerning their claims about Singer’s past
performance.

Mashuda testified as follows: Follansbee is an “incentive-decentive” project in which
there were only 104 days to move about 2 million yards of dirt, or face a penalty per each day
over. Respondent uses hydraulic excavators, mass excavators, 90’s scrapers, 50 and 100 ton
rock trucks, drill rigs, graders, dozers, and compactors at the jobsite that requiring servicing.
The master mechanic comes on the job first to assemble the equipment. The master mechanic
orders the parts and lays out the work for the other mechanics. The night shift mechanic does
the work the day shift mechanic instructs him to do. Respondent uses a lot of older equipment
and its mechanics are very important on a job where time is of the essence. Mashuda testified
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no other contractor uses the equipment Mashuda was running, the newest scraper on the
Follansbee job was a 1952 model, and the newest dozer was a mid 1960’s model.

Mashuda testified that: Singer’s name was on the referral list Mashuda received from
O’Hara during the February 25 pre-job conference. Mashuda had never worked with Singer, but
knew Singer had worked on Respondent’s jobs in the past. Mashuda told O’Hara that he
needed to check Singer out before he hiring him.

Mashuda testified that: Mashuda talked to Huffman, who had worked for Respondent for
35 years, about Singer. Huffman said he only worked with Singer on and off a little bit on
Singer’s last job for Respondent. Huffman relayed a story about two employees putting a
transmission in a 50 ton truck while Singer was sat in his pickup watching because it was
raining. Huffman told Mashuda that Singer could fix things like a truck with no problem, but
Singer only did what he had to do and nothing more.10 Some of the people who had worked
with Singer in the past, including Huffman, felt that with the Follansbee job on the fast track and
using 90’s scrapers, Singer could not keep up. Huffman also told Mashuda that, during the
1990 job Singer worked on, Respondent assigned a laborer to operate a steam jenny. Singer
said they should have an operator rather than a laborer assigned to run the machine. However,
when the operators found out it was a dirty job they declined the work resulting in a laborer
running the steam jenny for almost a year. At the end of the job when Respondent was going to
lay an operator off, Singer, the master mechanic on the job, protested stating an operator
should be working the steam jenny rather than a laborer. As a result of Singer’s protest, the
laborer was laid off in lieu of an operator who replaced the laborer on the steam jenny, and
worked an extra couple of weeks or months on the job. Mashuda testified this story “left a bad
taste in some people's mouths.”

Mashuda sent a letter to O’Hara, under Mellon’s signature dated March 14, which, as set
forth above, requested that Singer not be sent out to the Follansbee job at that time due “to
performance and personality conflicts with other mechanics…”. Mashuda testified he thought
the major personality conflict was with Huffman because Mashuda had not hired anyone else at
the time of the letter. Mashuda testified the “personality conflict” referenced in the letter was
Singer’s involvement in the steam jenny situation as well as Huffman’s view that he did not think
Singer was much of a worker since Singer watched others work while it was raining.

Mashuda testified that: Mashuda selected Owens to be the master mechanic for the
Follansbee job because Mashuda has worked with Owens on another large project for a year,
and he knew Owens and Owens’ truck. The union and the contractor agree who should be the
master mechanic. While Mashuda testified Singer had worked for Respondent as a master
mechanic in the past, Mashuda did not know whether Singer could rebuild a power unit on
Respondent’s 90’s scrapers, although Mashuda had heard Singer had performed other
maintenance on these units. Mashuda inquired as to whether Singer had a boom, compressor,
and welder on his truck. Mashuda heard that Singer did not have a boom and Mashuda
testified that a boom, welder and an air compressor are necessary to work on the 90’s scrapers.
Owens has all of this equipment on his truck.

Mashuda testified that when Owens first reported to the job, Mashuda mentioned to
Owens that O’Hara was a little upset because Owens was sent out before Singer. Mashuda
told Owens that Singer was first on the on the list but Owens was hired because Mashuda
10 Mashuda testified he also spoke with Vic Mashuda, Mashuda’s father, and was told that
Singer could perform the work as a mechanic, but had problems with the pace of his work.
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needed the boom truck and someone to help put the equipment together. Mashuda told Owens
that O’Hara wanted to send Singer out there to work. Mashuda testified Owens said if O’Hara
sends Singer out Mashuda should get someone to replace Owens because Owens would not
work with Singer. Owens said when he worked at Trumbull he ended up doing all of the work
on the night shift Singer could have been doing on the day shift. Mashuda testified this
conversation took place after Respondent sent the March 14 letter to Local 132 requesting that
Singer not be referred to the job.

Mashuda testified he talked to Charles Hinkle, who works as a supervisor for Trumbull, a
competitor of Respondent, about Singer on the same day, but after Mashuda had spoken to
Singer at the jobsite. Singer had worked for Trumbull the prior year on a project. Hinkle was on
the Follansbee jobsite assembling equipment and he asked if Mashuda had been talking to
Singer. Mashuda testified Hinkle said you are not going to hire him are you because you are
not going to get much work out of him. Mashuda testified that, after talking to Hinkle, Mashuda
made up his mind that he did not think Singer could handle a day shift position. Mashuda called
Singer the following week and said he did not hear anything that changed his mind concerning
the day shift. Mashuda denied that Singer’s union activity had anything to do with Mashuda’s
decision not to hire Singer on the day shift.

Mashuda testified that: Mashuda issued the March 14 letter requesting Singer not be
sent out, and then Mashuda brought Owens in as master mechanic. O’Hara then wanted to
send Singer out for a day shift mechanic position, but Mashuda requested mechanic Andy
Potter because of Potter’s experience working on Respondent’s 90’s scrapers and drills.
Owens and Potter staffed the day shift, along with another mechanic Respondent brought in
from its shop. Respondent had to provide a truck to its shop mechanic who worked at the
Follansbee site. Mashuda testified that Owens and Potter were behind Singer on Local 132’s
referral list. However, Mashuda thought he had a right to select Owens and Potter ahead of
Singer because there was a provision in the union contract that during a certain time period an
employer could call back employees who had previously worked for the employer. Mashuda
testified the contract allows Respondent to request people with specific equipment. Mashuda
testified that Owens had worked for him before and that Potter had worked with Mashuda on
three other projects, while Singer had only worked for Mashuda’s father, brother and uncles.
Nevertheless, Mashuda testified if he had heard everything he wanted to hear, he might have
offered Singer a job as a mechanic on the day shift, but he would not have offered Singer the
master mechanic job. Mashuda testified he also staffed Follansbee with a night shift mechanic.

While Mashuda claimed that whenever he hired a new mechanic he made the same
inquiries about the mechanic’s background that he made about Singer, Mashuda could not
provide the name of the mechanic Respondent had working on the night shift at the Follansbee
job at the time of the hearing. He also testified Respondent had gone through three or four
night shift mechanics because one of them was not getting his work done, and another one
burned up a new engine. Mashuda testified he was not sure if the third mechanic quit or
Respondent let him go. Mashuda testified they were not good employees.

Huffman, at the time of his testimony, was working for Respondent as a master
mechanic at another location. Respondent had employed Huffman, a member of Local 66, for
most of 36 years. Huffman worked at the Follansbee job for a short period of time in 2003,
before Huffman was transferred to the other job site. Huffman testified he had worked with
Singer in the mid or late 80’s. Huffman testified he had a discussion with Mashuda around
March 12 or 14 at the Follansbee job where Mashuda asked Huffman about Singer. Huffman
testified he told Mashuda that he did not think Singer applied himself on the job. When asked
for an explanation, Huffman testified as follows:
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Q. Well, he didn't work -- you said something there and I don't want to repeat it, what
did you see or hear him do that made you think that he was what you just said?
A. I can't really recall that, you know, I mean as far as his work ethics or whatever, you
know.

Despite this initial response, Huffman then testified he did not think Singer applied himself as
well as the other mechanics. When pressed for further explanation, all Huffman could say was
Respondent worked in the rain, “I didn't think, you know, Gary liked to work in the rain or not
quite as well as the other mechanics.” Huffman testified, “I didn't really recommend” Singer for
hire. Noticeably absent from Huffman’s testimony was that he told Mashuda about Singer’s
protest about the steam jenny job assignment, which Mashuda testified was reported to him by
Huffman as leaving a bad taste in people’s mouths.

Owens, a member of Local 132, was working for Respondent a master mechanic at the
time of his testimony. He testified he had been qualified as a master mechanic for 5 years and
that he had previously worked for Respondent in 1995 or 1996. Owens testified he started
working for Respondent on March 18, and that he learned he was going to be the master
mechanic on the Follansbee job sometime the prior week. Owens testified that when he started
working for Respondent the actual work on the road had not started. Rather, Owens was
putting equipment together. When he started on the job, Owens was working with Huffman and
a mechanic named Jeff from Respondent’s shop.

Owens testified he learned Singer was in contention to work at the Follansbee job after
Owens had been on the job for at least a week because O’Hara brought a list to the jobsite and
showed it to Owens. Owens testified the following week he told Mashuda that if he hired Singer
that Owens would quit. When asked if Owens told Mashuda why he was going home if
Mashuda hired Singer, Owens testified, “No. He didn’t ask.” Then following a somewhat leading
question, Owens’ testimony changed. He now testified that Mashuda did ask him why he was
going home if Singer was hired to which Owens replied, “He was on the lazy side.” Owens
testified he had only previously worked with Singer for 7 months for Trumbull Corporation when
Singer was on the day shift and Owens was working nights. Owens testified he knew Singer
was lazy because when he came in early, he heard from others that Singer was “Sitting in his
truck, wouldn't report to the master mechanic for other stuff to do.”11 Owens testified there was
nothing else he heard about Singer. Owens testimony changed again on cross-examination.
Owens now testified when Owens came to work Singer would be sitting in his truck.

11 I did not find Owens or Huffman to be credible witnesses. They were both employed by
Mashuda and testifying in his presence at the hearing. In addition to the several shifts in
Owens’ testimony, Owens’ claim that Singer would not report to master mechanic for work was
contradicted by Singer’s credible testimony that Singer was in fact the master mechanic on the
day shift at Trumbull. I also do not credit Mashuda’s claim that Hinkle, a supervisor at Trumbull
gave him a negative reference about Singer’s work. Mashuda placed his conversation with
Hinkle as taking place the same day, but after he spoke to Singer at the job site. However,
Singer credibly testified that the week following his conversation with Mashuda at the site,
Mashuda called Singer and told him that he did not have a chance to talk to anyone else, but
that Mashuda was sticking with the letter not to hire Singer.
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C. Analysis

1. The alleged violation of Section 8(a)(1) of the Act

Singer’s credited and undisputed testimony reveals Singer had a conversation with
Mashuda sometime in March at the Follansbee jobsite. Singer asked Mashuda why he did not
want Singer for the job. Mashuda said his people said Singer was a pain in the neck. Singer
persisted in questioning Mashuda for an explanation and Mashuda said, “maybe you just PO'd
somebody real good.” Mashuda went on to state that Singer bad mouthed Respondent.
Mashuda said it was not a problem with Singer’s ability to do the job and there was no problem
with his truck, it was just a personality conflict. Singer told Mashuda he did not understand the
personality conflict assertion because he had worked for Respondent before and never knew he
had any problems with anyone. Mashuda then said, “maybe you was too union for us.”12
Mashuda went on to state you are a union man. Singer replied he was and was proud of it.
Mashuda told Singer that Mashuda wanted mechanic Andy Potter because Potter knew the 90’s
scrapers inside and out to repair them. Mashuda said he would talk to more people and get
back to Singer. Mashuda said in a couple of weeks he would be starting a night shift. Singer
cut him off, and said “if Gary Singer is not good enough to work for you on day shift, he sure is
not good enough to work night shift for you.” I find Mashuda’s remark to Singer in explanation
of why he was not being hired that maybe you are too union for us to be coercive and violative
of Section 8(a)(1) of the Act. See Colden Hills, Inc., 337 NLRB No. 86 (2002), where a
statement that a union organizer’s application was not taken seriously because of his union
status was found violative of Section 8(a)(1) of the Act. See also J.S Alberici Construction Co.,
231 NLRB 1038, 1042 (1977), enfd. 591 F.2d 463 (8th Cir. 1979).

2. The refusal to hire Singer

In Wayne Erecting, 333 NLRB 1212, 1212 (2001), the Board citing FES, 331 NLRB 9
(2000), set forth the following framework of required proof by the General Counsel concerning
refusal-to-hire allegations:

(1) that the respondent was hiring, or had concrete plans to hire, at the time of the
alleged unlawful conduct; (2) that the applicants had experience or training relevant to
the announced or generally known requirements of the positions for hire, or in the
alternative, that the employer has not adhered uniformly to such requirements, or that
the requirements were themselves pretextual or were applied as a pretext for
discrimination; and (3) that antiunion animus contributed to the decision not to hire the
applicants.

The Board went on to state:

Once the General Counsel has met his initial burden for the refusal to consider and
refusal to hire, respectively, the burden shifts to the respondent to show that it would not
have considered or hired, respectively, the applicants even in the absence of their union
activity or affiliation.

It is clear here that Respondent had concrete plans to hire. O’Hara testified that when
he met with Mashuda at Respondent’s pre-job conference on February 25 for the Follansbee
12 Respondent admits at page 6 of its post-hearing brief that, “Mr. Mashuda did say
something like ‘and maybe you were too union’” to Singer.
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job, Mashuda told O’Hara that Respondent was going to need mechanics. At that time, O’Hara
informed Mashuda that Singer was first on Respondent’s list for referral. In fact, Mashuda’s
testimony reveals that following the February 25 meeting, after sending Local 132 a letter
stating that Singer should not be sent out to the jobsite because of “past performance and
personality conflicts with other mechanics and employees,” Respondent hired Owens for the
position of master mechanic day shift, Potter as a day shift mechanic, and transferred a third
mechanic to the site to man the day shift.

I find that Singer had the experience and qualifications to perform on Respondent’s day
shift as either a master or plain mechanic. Singer was listed on Local 132’s referral list as a
master mechanic with his own truck. Singer has been a member of Local 132 for 27 years, and
worked for Respondent on three occasions, the last two serving as a master mechanic in 1985
and 1990.13 Singer’s credited testimony reveals that during the three times he worked for
Respondent he was never let go before the job ended, he never received discipline, and no one
spoke to him about the quality of his work. Singer testified he has worked on 90’s scrapers
including assembling them, adjusting frictions and brakes, and has done anything that needs to
be done to them. Singer testified he worked on these machines during the job in 1990, as well
on the other jobs for Respondent. Moreover, I have credited Singer’s undisputed testimony that
when he met with Mashuda and asked him why he was not being hired Mashuda told Singer
that there was no problem with Singer’s ability to do the job, and it was not Singer’s truck.
Rather, Mashuda said it was a personality conflict, that Singer was a pain in the neck, that he
“PO’d somebody real good” and when pressed for a further explanation, Mashuda finally told
Singer “maybe you was too union for us.” Accordingly, I find that Singer had the experience for
the announced position, and had successfully worked for Respondent as a master mechanic in
the past on two separate occasions.

I also find that antiunion animus contributed to decision not to hire Singer. In Blount
Bros. Corp., 291 NLRB 242, fn. 1 (1988), the Board held:

The judge recognized that the facts supported finding the Kisers engaged in
protected concerted activity, as well as union activity…. However, he found that the
failure and refusal to recall the Kisers violated only Sec. 8(a)(3), even though the
complaint also alleged an independent 8(a)(1) violation. We find merit in the General
Counsel’s limited cross-exceptions to the judge’s failure to find an independent violation
of Sec. 8(a)(1). We therefore also find that the Respondent violated Sec. 8(a)(1) by
failing and refusing to recall the Kisers because of their complaints about the work
reassignment, i.e., protected activity under Interboro Contractors, 157 NLRB 1295
(1966), enfd. 388 F.2d 495 (2d Cir. 1967), approved in NLRB v. City Disposal Systems,
465 U.S. 822 (1984).
In adopting the judge’s finding that the Respondent violated Sec. 8(a)(3) we rely on
Interior Alterations, 264 NLRB 677 (1982).
Finally, we note that the record fails to support Respondent’s contention that the
Kisers’ actions were not in good faith. Rather, the record shows that the Kisers’
complaints were based on an honest and reasonable belief that the work in question
should have been assigned to iron workers.14
Continued
13 Singer was qualified as a master mechanic at least dating back to 1985, while Owens, the
individual Respondent hired as a master mechanic for the Follansbee site had only been
qualified as a master mechanic for 5 years at the time of the hearing.
14 In Blount Bros. Corp., supra at 244, the Kisers, who were iron workers, objected when
they were told they were being laid off because certain work they believed to belong to iron
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_________________________
* * * *
Further, the record establishes that the Kisers based their challenge on a belief that as a
matter of past practice the performance of a minimum number of hours of work on a job
constituted a jurisdictional assignment. As the existence or nonexistence of the past
practice was not definitively established, we have no basis for finding the Kisers’
challenge unreasonable.

In Interior Alterations, Inc., 264 NLRB 677, fn. 3 (1982), enfd. 738 F.2d 373 (10th Cir.
1984), two carpenters confronted two laborers and told them to stop performing a certain
assignment claiming it was carpenters work. The Board concurred with the judge’s assessment
that the two carpenters “were engaging in protected concerted activity when they protested
Respondent’s use of laborers to move two garage doors…”. The Board affirmed the judge’s
finding that the carpenters were discharged in violation of Section 8(a)(1) and (3) of the Act.

Singer’s credited testimony reveals that in 1990, while working for Respondent, as the
job was winding down, Huffman came to Singer and said they were going to have to cut back
one mechanic and they were going to lay Singer off. Singer responded Drummond is out of
Local 66, this is my area referring to Local 132’s jurisdiction, and Drummond should be laid off
before Singer. Huffman persisted that Drummond was Respondent’s company mechanic, had
been with them for years and they were going to keep him, and lay Singer off. Singer said,
according to our contract, it was Singer’s area and Singer should be the one to stay. Singer
contacted the job steward who contacted Local 132’s business manager who interceded in
Singer’s behalf with management. As a result, Drummond was transferred to another jobsite
within a few days, and Singer remained working at the jobsite in question for another 3 or 4
months. Singer testified that while he worked on this job in 1990, Respondent had equipment
that needed cleaning. Respondent brought in a steam jenny to steam clean the equipment and
Respondent assigned a laborer to operate the steam jenny. Singer told Huffman it was
operator’s work to run the steam jenny. Huffman responded that in Pennsylvania it was
laborers’ work. Singer said we are not in Pennsylvania and according to their contract the
steam jenny belongs to operating engineers not laborers. The import of Singer’s testimony was
that he was assigned to run the steam jenny, rather than the laborer, as a result of Singer’s
protest. Mashuda testified that Huffman reported to him Singer’s protest over the steam jenny
assignment. He testified that as a result of Singer’s protest, a laborer was laid off in lieu of an
operator who replaced the laborer on the steam jenny, and worked an extra couple of weeks or
months on the job. Mashuda testified this story “left a bad taste in some people's mouths.”

I find that Singer was engaged in protected concerted activity and union activity when he
lodged these protests, which were as he testified his attempts to enforce Local 132’s contract
based on the contract language itself or the past practice within Local 132’s jurisdiction. See,
Blount Bros. Corp., supra and Interior Alterations, Inc., supra. The bonafides of Singer’s
contractual based demands in this situation are not in question since Respondent acceded to
his assertions in each instance and assigned the work to an operator and or a Local 132
member.15 That Mashuda viewed Singer’s attempts to enforce Local 132’s contract as union
workers was assigned to sheet metal workers. Their protest upset the superintendent on the
job resulting in his refusal to recall the Kisers back to work following their layoff.
15 While Mashuda failed to testify that Huffman informed him of Singer’s protest about the
work assignment dispute between the Local 66 and Local 132 mechanics, I have concluded this
dispute also colored Huffman’s report on Singer to Mashuda. Mashuda testified the reference
to personality conflicts in the March 14 letter concerning Singer related to his conversation with
Huffman, who was the only mechanic at the site at the time the letter was written.
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activity is similarly not in question as Mashuda told Singer point blank that his people said
Singer was a pain in the neck, “maybe you just PO'd somebody real good,” and Mashuda then
said, “maybe you was too union for us.”

I find the other reasons advanced by Respondent for its refusal to hire Singer as a day
shift mechanic to be pretextual. Mashuda testified he spoke to Vic Mashuda, his father, and
was told there were problems with the pace of Singer’s work. However, Vic Mashuda failed to
testify. Moreover, Singer had worked for Respondent on three occasions without complaint to
him about his performance, and on the latter two occasions he worked there as a master
mechanic. Singer’s testimony reveals that Vic Mashuda was involved in his hiring on the two
occasions Singer worked for Respondent as a master mechanic, because Vic Mashuda
negotiated the renting of Singer’s truck when Singer was hired. I do not find Respondent’s
assertion credible that there was a performance problem with Singer, when it repeatedly hired
him without informing him of any problems, until after his last stint there in 1990 when Singer
participated in union activity, which by Mashuda’s admission left a bad taste in people’s mouths.

Similarly, I do not credit Huffman’s claim that Singer did not apply himself on the job.
Huffman, an admitted supervisor, was testifying in front of Mashuda, Huffman’s boss. Huffman,
considering his demeanor, was not an impressive witness as he had difficulty substantiating his
claim that Singer did not apply himself. Moreover, while Huffman claimed that Singer did not
like to work in the rain, Huffman failed to testify that he ever spoke to Singer about this alleged
deficiency. Thus, I do not credit Huffman’s testimony as to Singer’s past performance. I also do
not credit Mashuda’s claim that Huffman informed him that Singer sat in his truck while it was
raining and watched other employees install a transmission in a 50 ton truck. For no
explanation was offered as to why, if this occurred under Huffman’s observation, Huffman failed
to intervene and put Singer to work.

I also do not credit Mashuda or Owens’ testimony concerning their alleged conversation
about Singer. Mashuda testified that Owens, who had been hired as the master mechanic on
the Follansbee job, told Mashuda that Owens would not work with Singer because when Owens
had worked on the night shift for Trumbull, Owens ended up doing the work Singer should have
been doing on the day shift. Owens, who was in Respondent’s employ at the time of his
testimony, did not corroborate Mashuda’s testimony. Owens initially denied even telling
Mashuda the reason he did not want to work with Singer, stating Mashuda did not ask him the
reason. Owens then changed his testimony stating he heard from others that Singer was lazy
and that he sat in his truck. Owens’ testimony then changed a third time reporting that, although
they worked on different shifts, when Owens came to work early he saw Singer sitting in his
truck. Owens never testified that he was forced to do Singer’s work on the night shift.
Moreover, Singer credibly testified he met Owens at the Follansbee job site in 2003, at which
point Owens told Singer he was trying to get Respondent to hire another mechanic. I do not
find Respondent’s claim credible that Owens had a problem working with Singer, but then
divulged to Singer that Owens wanted Respondent to hire another mechanic when he knew
Singer was seeking employment.

Finally, I do not find as credible Mashuda’s testimony that he had concerns about
Singer’s ability to work on the 90’s scrapers or concerns about Singers truck or equipment. In
this regard, Mashuda met with Singer at the jobsite and told Singer he did not have a concern
about Singer’s ability to do the work and did not have a problem with Singer’s truck. Mashuda
also did not ask Singer about his experience on the 90’s scrapers, or any questions about
Singer’s truck during their meeting. The only explanation Mashuda gave Singer at that time for
not hiring Singer was that maybe Singer was “too union” for Respondent. Moreover, I have
credited Singer’s testimony that having worked for Respondent in the past, he could perform, as
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he had done in the past, all the work necessary to service the 90’s scrapers as well as
Respondent’s other equipment.

Having found that Respondent was hiring day shift mechanics, that Singer was first on
Local 132’s referral list and met the qualifications for a day shift mechanic, that Singer engaged
in union and protected concerted activity, that Respondent harbored strong animus toward this
activity in that it was brought up to Singer over 12 years after the activity took place when
Mashuda informed Singer that he was too union for Respondent, and that the reasons
advanced for not hiring Singer as a day shift mechanic were pretextual, I find that Respondent
violated Section 8(a)(1) and (3) of the Act by failing and refusing to hire Springer as a day shift
mechanic. I find that Singer should have been hired as the first day shift mechanic at the
Follansbee job, prior to Respondent hiring Potter on the dayshift, or transferring another
mechanic to the Follansbee site from Respondent’s shop.16

While I find that Singer was fully qualified to serve as master mechanic on the day shift
rather than Owens, I do not find that Respondent’s failure to hire him in that capacity is violative
of Section 8(a)(1) and (3) of the Act in view of counsel for the General Counsel’s assertion at
page 10, footnote 2 of her post hearing brief that, “Counsel for the General Counsel does not
assert that Mashuda’s hiring of Owens as the master mechanic violated Section 8(a)(3) of the
Act, inasmuch as the Union and Employer have the right to agree on a master mechanic.”

I accede to the General Counsel’s position here although counsel for the General
Counsel cites no authority in the contract or by way of past practice granting the parties thereto
the right to skip qualified candidates for referral in order to agree on a master mechanic. In this
regard, the hiring hall procedures under Local 132’s master agreement provide for specific order
of referral and the following contractual provisions have pertinence here:

Section 12. The order of referrals set forth above shall be followed except in cases
where:
(i) The Employer requires and requests employee(s) possessing special skills and/or
abilities, licenses or certificates in which case the Union shall refer the first applicant on
the list possessing such special skills and abilities.
* * * *
(iv) The Employer requests the referral of an individual who has been employed by the
Employer within a period of six (6) months prior to such requests and such individual is
registered on the referral list…..

Owens testified that, prior to being hired by Respondent in March 2003, he had last been
employed by Respondent in 1995 or 1996. Moreover, Owens was not on Local 133’s out of
work list at the time he was referred to Respondent’s job site as a master mechanic. Therefore,
16 Respondent did not show that Potter had worked for Respondent within the past six
months of his hiring as required by Local 132’s contract for Potter to bypass Singer on the
referral list. Moreover, O’Hara did not feel that Respondent had a contractual basis to by pass
Singer with Potter in that O’Hara informed Mashuda that Singer should be referred before
Potter. Even assuming Respondent had a valid contractual argument to hire Potter before
Singer, which Respondent failed to establish herein, I have concluded that Respondent’s
reasons for selecting Potter over Singer were based on animus towards Singer’s union activity,
not on the relative abilities of the two mechanics to perform the necessary work. As Mashuda
admitted, had he heard the right things about Singer there might have been a slot for him as a
day shift mechanic.
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the exception in Section 12(iv) in Local 132’s master agreement does not apply to Respondent’s
hiring of Owens. As far as Section 12(i) is concerned, I find that Singer, based on his credited
testimony, possessed all the special skills and abilities to perform as a day shift master
mechanic for Respondent as he had successfully performed in that capacity in the past. I also
note that any agreement by Local 132 and Respondent to exclude Singer as master mechanic
on the Follansbee job was clearly under duress because before Local 132 referred Owens,
Respondent had issued Local 132 a letter stating Respondent would not accept Singer’s referral
to the job site. I have concluded Respondent’s issuance of its March 14 letter was based on
discriminatory considerations. In fact, Mashuda testified he told Owens that Local 132 official
O’Hara was upset that Owens was sent out a head of Singer.

While I have concluded that Singer was qualified to perform as a master mechanic on
Respondent’s day shift, in view of the counsel for the General Counsel’s concession in her brief
that Respondent and Local 132 had the right to negotiate the hiring of a master mechanic
outside the literal terms of Local 132’s master agreement, I will not recommend that Singer be
offered the master mechanic position at the Follansbee site. I assume that counsel for the
General Counsel is privy to some past practice incorporated in the contract that has not been
set forth in the record. I also note that Mashuda testified that he needed a mechanic on the job
that had a boom or crane on their truck to work on the 90’s scrapers. Mashuda’s testimony on
this point was not rebutted by Singer and therefore has been credited. Moreover, Mashuda’s
testimony that Owens had a crane on his truck, and Singer did not has been credited since
Singer also failed to refute this claim. Since Respondent has advanced a non-discriminatory
reason for selecting Owens as a master mechanic over Singer, and the General Counsel is not
seeking to enforce the hiring hall provisions as written but rather defers to a proffered past
practice, I do not find Respondent’s failure to hire Singer as master mechanic is violative of
Section 8(a)(1) and (3) of the Act. This does not disturb my finding that Singer was entitled to
the first day shift mechanic position available at the jobsite. There was no substantiated claim
by Respondent that it needed more than one truck with a crane at the jobsite, or that either
Potter or the day shift mechanic that Respondent transferred to the site had equipment that was
not available to Singer. In fact, the evidence reveals Respondent provided a truck to the day
shift mechanic it transferred to the site.

I reject Respondent’s contention that Singer suffered no harm as a result of
Respondent’s discrimination. Respondent argues that Mashuda offered Singer a night shift
position at the same rate of pay and benefits as the day shift position. However, I do not find
that Respondent made a bona fide job offer to Singer. In All Pro Painting Co., 339 NLRB No.
157, slip op. at 3 (2003), it is stated that, “it is well established that to toll the backpay period, an
offer of reinstatement to a discriminatee must be ‘specific, unequivocal, and unconditional.’”
(Citation omitted.) It was noted that, “the employer bears the burden of proving a reinstatement
offer was valid. Any ambiguity in the explanation of the offer should be construed against the
employer.” (Citations omitted.) Singer’s credited testimony reveals that Mashuda did not make
a specific, unequivocal, and unconditional offer of employment of a night shift position to Singer.
Rather, Mashuda just stated that in a couple of weeks he was going to start a night shift, at
which point Singer cut him off, stating if Singer was not good enough to work on the day shift for
Respondent, he was not good enough to work on the night shift.17 Whether, Mashuda would
17 I do not accept Respondent’s argument that Singer’s statement that he was not good
enough to work nights if he was not good enough to work days leads to the conclusion that
Mashuda and Singer were discussing Singer’s ability as opposed to his union activity. For I
have credited Singer’s uncontested testimony that Mashuda told Singer that Mashuda did not
have a problem with Singer’s ability to do the job or with Singer’s truck.
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have made an offer to Singer to work nights has not been established, because after Singer’s
response, Mashuda never made a firm offer to him for such a position, and it is Respondent’s
burden to establish such an offer was made if it is attempting to escape further obligations to an
employee resulting from its unlawful conduct. Moreover, Singer credibly testified that the day
shift mechanic is a higher profile job in that it is a lot faster paced then the night shift, and the
day shift mechanic has to know more than the night shift. I do not find it to be incumbent on
Singer, after being told that he was “too union” for Respondent, to be required to accept a less
favorable shift and a position of less stature as a result of his union activities and thereby
exonerate Respondent from making a bona fide offer of the day shift mechanic’s position to him,
even assuming I were to find that Mashuda belatedly offered Singer a night shift position.

Conclusions of Law

1. By informing an applicant that he was too union to work there, Respondent violated
Section 8(a)(1) of the Act.

2. By refusing to hire applicant Gary V. Singer for a day shift mechanic position as its
Follansbee, West Virginia job site because of his support for and activities on behalf of the
International Union of Operating Engineers, Local 132, AFL-CIO (Local 132) Respondent has
engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and
(3) of the Act.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices. I shall
recommend that it be required to cease and desist therefrom and to take certain affirmative
action necessary to effectuate the policies of the Act. I shall also recommend that the
Respondent be ordered to offer Gary V. Singer employment in the day shift mechanic position
which he sought to apply without prejudice to his seniority or other rights or privileges he would
have enjoyed had he been hired, and make him whole for any loss he may have suffered as a
result of Respondent's refusal to hire him in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in accordance with New Horizons for the Retarded, 283
NLRB 1173 (1987), terminating the employee, if necessary, hired as result of Respondent’s
refusal to hire Singer.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended18

ORDER

The Respondent, Mashuda Corporation, its officers, agents, successors, and assigns,
shall
1. Cease and desist from:
(a) Informing applicants they are too union to work for Respondent.
(b) Refusing to refusing to hire job applicants because of their union support and
activities.
18 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 purposes.
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(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days from the date of the Board's Order, offer Gary V. Singer employment
in the day shift position for which he sought to apply without prejudice to his seniority or other
rights or privileges to which he would have been entitled absent the discrimination against him.
(b) Within 14 days from the date of the Board's Order, make Gary V. Singer whole for
any loss of earnings he may have suffered by reason of the discrimination against him as set
forth in the remedy section of this decision.
(c) Within 14 days of the Board's Order, remove from its files any reference to the
unlawful refusal to employ Gary V. Singer, including but not limited to Respondent’s March 14,
2003, letter and within 3 days thereafter, notify him in writing that this has been done and that
this personnel action will not be used against him in any way.
(d) Preserve and, within 14 days of a request or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in Cranberry Township,
Pennsylvania, and at all its current jobsites copies of the attached notice marked “Appendix.”19
Copies of the notice, on forms provided by the Regional Director for Region 6, after being
signed by the Respondent'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 Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time since March 14, 2003.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

Dated, Washington, D.C. December 19, 2003

_____________________
Eric M. Fine
Administrative Law Judge
19 If this Order is enforced by a Judgment of the 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.”
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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.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.

WE WILL NOT inform job applicants that they are too union to work for Mashuda
Corporation.
WE WILL NOT refuse to hire job applicants because of their support for or activities in
behalf of the International Union of Operating Engineers, Local 132, AFL-CIO, or any other labor
organization.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board's Order, offer Gary V. Singer
employment to the day shift mechanic position which he sought to apply without prejudice to his
seniority or other rights or privileges to which he would have been entitled absent the
discrimination against him.
WE WILL within 14 days from the date of the Board's Order, remove from our files any
reference to the unlawful refusal to employ Gary V. Singer, including but not limited to our
March 14, 2003, letter, and within 3 days thereafter, notify him in writing that this has been done
and that this personnel action will not be used against him in any way.

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WE WILL make Gary V. Singer whole for any loss of earnings and benefits he may have
suffered by reason of the discrimination against him plus interest.

MASHUDA CORPORATION
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union
representation and it investigates and remedies unfair labor practices by employers and unions. To find out more
about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any
agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
1000 Liberty Avenue, Federal Building, Room 1501, Pittsburgh, PA 15222-4173
(412) 395-4400, Hours: 8:30 a.m. to 5 p.m.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (412) 395-6899.This is an official notice and must not be defaced by anyone.

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