Mashuda Corporation

National Labor Relations Board - Board Decisions

Apr 30, 2004

341 N.L.R.B. 631 (N.L.R.B. 2004)

MASHUDA CORP. 631
Mashuda Corporation and Gary V. Singer. Case 6–
CA–33414
April 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On December 19, 2003, Administrative Law Judge
Eric M. Fine issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Gen-
eral Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,
and to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Mashuda Corporation, Cranberry Township, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
“(b) Make Gary V. Singer whole for any loss of earn-
ings he may have suffered by reason of the discrimina-

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
Because we adopt the judge’s finding that the Respondent did not
make a valid job offer of a night-shift position to Singer, we find it
unnecessary to pass on whether a night-shift position would be substan-
tially equivalent to the day-shift mechanic position unlawfully denied
to Singer.
Chairman Battista would leave to compliance the separate issue of
whether Singer’s comment to Mashuda, arguably showing a disinterest
in a night-shift position, was a breach of the duty to mitigate backpay.
Members Liebman and Walsh find it inappropriate to leave this is-
sue to compliance. Because Mashuda’s statement to Singer was not a
valid offer of employment, Singer had no obligation to reply. More-
over, the Board does not evaluate a discriminatee’s response to an offer
unless the respondent has established that the offer was valid. Cassis
Management Corp., 336 NLRB 961, 969 (2001); Consolidated
Freightways, 290 NLRB 771, 772 (1988), enfd. in relevant part 892
F.2d 1052 (D.C. Cir. 1989), cert. denied 498 U.S. 817 (1990).
2 We shall modify the judge’s recommended Order in accordance
with Indian Hills Care Center, 321 NLRB 144 (1996). We shall also
substitute a new notice in accordance with our recent decision in Ishi-
kawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534
(6th Cir. 2004).
tion against him, as set forth in the remedy section of
this decision.”
2. Substitute the attached notice for that of the admin-
istrative 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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
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 Interna-
tional 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 in the day shift
mechanic position for which he sought to apply, without
prejudice to his seniority or any other rights or privileges
to which he would have been entitled absent the dis-
crimination against him.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful 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.
WE WILL make Gary V. Singer whole for any loss of
earning and benefits he may have suffered by reason of
the discrimination against him, plus interest.

MASHUDA CORPORATION

Dalia Belinkoff, Esq., for the General Counsel.
341 NLRB No. 91
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 632
Charles R. Volk, Esq., of Sewickley, Pennsylvania, 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 Interna-
tional 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 de-
meanor 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 busi-
ness in Cranberry Township, Pennsylvania, has been engaged
in the business of highway construction. During the 12-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.
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 longstanding affiliation with the Operating Engineers. Singer
has been a member of Local 132 for 27 years. Singer and Lo-
cal 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

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 Corp.,
179 F.2d 749, 754 (2d Cir. 1950), reversed on other grounds 340 U.S.
474 (1951).
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 supervi-
sors and agents within the meaning of Sec. 2(11) and (13) of the Act.
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 posi-
tion 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 negoti-
ated 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 busi-
ness 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 op-
erators 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 Vir-
ginia (the Follansbee job). Singer called Local 132 and was
told the planned start date was early March. Singer testified he
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.

MASHUDA CORP. 633
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 prejob 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 an-
ticipated 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 tran-
spired. 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 jobsite 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.

6 Singer’s testimony on this point is confirmed by Local 132’s
March 2003 out-of-work list. Singer is 64 on the list with a December
13, 2002 signup 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 132 on the
list with a February 28, 2003, signup 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.
Mashuda said, “maybe you just PO’d somebody real good.”
Singer asked how, and Mashuda replied you bad mouthed Re-
spondent. Singer said he did not know where that was coming
from. Singer said he worked for Respondent on several differ-
ent occasions and Singer drove up to one of the company pic-
nics in Evans City, Pennsylvania, because Mashuda’s father
had a 50-year anniversary party for the 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 per-
sonality 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 Lo-
cal 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 at-
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 jobsite,
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 634
torney, 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 morn-
ing, 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 recog-
nized from prior work. Singer asked where he should sign up.
All three stated they did not know Respondent was hiring to-
day. Singer said the Operating Engineers hall sent him as a
mechanic. One of them obtained a W-2 form and other paper-
work 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 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 any-
one. 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 tell-
ing 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 to-
gether.
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
jobs in the 1990, as well [as] on the other jobs for Respondent.
Singer has worked for the Trumbull Corporation on 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 dayshift.
B. Respondent’s Witnesses
Respondent called Mashuda, Huffman, and Owens as wit-
nesses 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 con-
cerning 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 require 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. Re-
spondent uses a lot of older equipment and its mechanics are
very important on a job where time is of the essence. Mashuda
testified 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 prejob
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 hired
him.
Mashuda testified that: Mashuda talked to Huffman, who
had worked for Respondent for 35 years, about Singer. Huff-
man 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 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 Fol-
lansbee 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 opera-
tor 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

10 Mashuda testified he also spoke with Vic Mashuda, Mashuda’s fa-
ther, and was told that Singer could perform the work as a mechanic,
but had problems with the pace of his work.

MASHUDA CORP. 635
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 mechan-
ics.” Mashuda testified he thought the major personality con-
flict 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 me-
chanic 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 list but Owens was hired
because Mashuda 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 con-
versation 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 assem-
bling 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 con-
cerning 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 Re-
spondent 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 previ-
ously 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 of-
fered 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 me-
chanic, he made the same inquiries about the mechanic’s back-
ground 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 3 or 4 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 Re-
spondent as a master mechanic at another location. Respon-
dent 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 jobsite. 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 testi-
fied he told Mashuda that he did not think Singer applied him-
self on the job. When asked for an explanation, Huffman testi-
fied as follows:

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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 636
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 re-
ported to him by Huffman as leaving a bad taste in people’s
mouths.
Owens, a member of Local 132, was working for Respon-
dent a master mechanic at the time of his testimony. He testi-
fied 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 testi-
fied 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 Re-
spondent’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’ testi-
mony 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 be-
cause when he came in early, he heard from others that Singer
was “Sitting in his truck, wouldn’t report to the master me-
chanic for other stuff to do.”11 Owens testified there was noth-
ing 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.
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

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 conversa-
tion with Hinkle as taking place the same day, but after he spoke to
Singer at the jobsite. 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.
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 asser-
tion 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 560 (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 149, 1212 (2001), the Board
citing FES, 331 NLRB 9 (2000), set forth the following
framework of required proof by the General Counsel concern-
ing 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 an-
nounced 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 dis-
crimination; 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 con-
sidered or hired, respectively, the applicants even in the ab-
sence 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 Respon-
dent’s prejob conference on February 25 for the Follansbee job,
Mashuda told O’Hara that Respondent was going to need me-
12 Respondent admits at page 6 of its posthearing brief that “Mr.
Mashuda did say something like ‘and maybe you were too union’” to
Singer.

MASHUDA CORP. 637
chanics. 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 mem-
ber 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 testi-
fied 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 as 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 con-
flict, that Singer was a pain in the neck, that he “PO’d some-
body 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 an-
nounced 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 the 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 com-
plaints about the work reassignment, i.e., protected activ-
ity 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).

13 Singer was qualified as a master mechanic at least dating back to
1985, while Owens, the individual Respondent hired as a master me-
chanic for the Follansbee site had only been qualified as a master me-
chanic for 5 years at the time of the hearing.
In adopting the judge’s finding that the Respondent vio-
lated Sec. 8(a)(3) we rely on Interior Alterations, 264 NLRB
677 (1982).
Finally, we note that the record fails to support Respon-
dent’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
. . . .
Further, the record establishes that the Kisers based their chal-
lenge on a belief that as a matter of past practice the perform-
ance of a minimum number of hours of work on a job consti-
tuted a jurisdictional assignment. As the existence or non-
existence of the past practice was not definitively established,
we have no basis for finding the Kisers’ challenge unreason-
able.

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 as-
signment claiming it was carpenters work. The Board con-
curred with the judge’s assessment that the two carpenters
“were engaging in protected concerted activity when they pro-
tested 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 work-
ing 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 refer-
ring 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 opera-
tor’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.
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 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 638
Mashuda testified that Huffman reported to him Singer’s pro-
test 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 activ-
ity 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 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 re-
fusal 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

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 refer-
ence 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.
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 concern-
ing 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, stat-
ing 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 jobsite in 2003, at
which point Owens told Singer he was trying to get Respon-
dent 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 em-
ployment.
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 Re-
spondent. Moreover, I have credited Singer’s testimony that
having worked for Respondent in the past, he could perform, as
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 mechan-
ics, 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 har-
bored 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 Respon-
dent, 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 refus-
ing 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 day

MASHUDA CORP. 639
shift, or transferring another mechanic to the Follansbee site
from Respondent’s shop.16
While I find that Singer was fully qualified to serve as mas-
ter mechanic on the day shift rather than Owens, I do not find
that Respondent’s failure to hire him in that capacity is viola-
tive 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
posthearing brief that “Counsel for the General Counsel does
not assert that Mashuda’s hiring of Owens as the master me-
chanic violated Section 8(a)(3) of the Act, inasmuch as the
Union and Employer have the right to agree on a master me-
chanic.”
I accede to the General Counsel’s position here although
counsel for the General Counsel cites no authority in the con-
tract 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 perti-
nence here:

Section 12. The order of referrals set forth above shall be fol-
lowed except in cases where:

(i) The Employer requires and requests employee(s) pos-
sessing 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 jobsite as
a master mechanic. Therefore, the exception in section 12(iv)
in Local 132’s master agreement does not apply to Respon-
dent’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 me-
chanic on the Follansbee job was clearly under duress because

16 Respondent did not show that Potter had worked for Respondent
within the past 6 months of his hiring as required by Local 132’s con-
tract 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 contrac-
tual argument to hire Potter before Singer, which Respondent failed to
establish herein, I have concluded that Respondent’s reasons for select-
ing 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.
before Local 132 referred Owens, Respondent had issued Local
132 a letter stating Respondent would not accept Singer’s refer-
ral to the jobsite. 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 prac-
tice 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
nondiscriminatory reason for selecting Owens as a master me-
chanic 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. How-
ever, 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 discrimi-
natee 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 ambi-
guity 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, un-
equivocal, 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 640
enough to work on the night shift.17 Whether, Mashuda would
have made an offer to Singer to work nights has not been estab-
lished, 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 than 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 Respon-
dent, to be required to accept a less favorable shift and a posi-
tion 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 jobsite
because of his support for and activities on behalf of the Inter-
national 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 un-
fair labor practices, I shall recommend that it be required to
cease and desist therefrom and to take certain affirmative ac-
tion 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 neces-
sary, 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

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.
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
ORDER
The Respondent, Mashuda Corporation, Cransberry Town-
ship, Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from.
(a) Informing applicants they are too union to work for Re-
spondent.
(b) Refusing to refusing to hire job applicants because of
their union support and activities.
(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 effec-
tuate 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 ab-
sent 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 addi-
tional 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 re-
cords, 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 fa-
cility in Cranberry Township, Pennsylvania, and at all its cur-
rent jobsites copies of the attached notice marked “Appen-
dix.”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 al-
tered, 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
19 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

MASHUDA CORP. 641
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.