Metric Constructors, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1990

297 N.L.R.B. 913 (N.L.R.B. 1990)

METRIC CONSTRUCTORS 913
Metric Constructors, Inc., a subsidiary of the Jones
Group, Inc. and Earl Barker, Jr. and Interna-
tional Union of Operating Engineers, Local No.
132, AFL-CIO
United Steelworkers of America, Local No. 14614,
AFL-CIO-CLC and United Steelworkers of
America, Local No. 14581 and Earl Barker, Jr.
Cases 9-CA-23992, 9-CA-24037, 9-CB-6693-
1, and 9-CB-6693-2
March 19, 1990 .
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 18, 1989, Administrative Law Judge
Hubert E Lott issued the attached decision The
General Counsel filed limited exceptions and a sup-
porting bnef, and the Respondents, Metric Con-
structors, Inc, United Steelworkers of America,
Local 14614, and United Steelworkers of America,
Local 14581, each filed answering briefs
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,- findings,' and
conclusions 2 and to adopt the recommended
Order 3
' ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Metric Con-
structors, Inc , Williamson, West Virginia, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order, except that the at-
' The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir.
1951) We have carefully examined the record and find no basis for re
versmg the findings
The correct name of the case cited in sec III,C of the judge s decision
is Slate Workers Local 66, 267 NLRB 601 (1983)
2 In adopting the judge's dismissal of the complaint allegations that
Metric violated Sec 8(a)(2) and (1) of the Act by recognizing and enter-
ing Into contracts containing union-security clauses with Steelworkers
Locals 14581 and 14614 and that these Locals violated Sec 8(b)(1)(A)
and (2) by accepting recognition from Metric and entering into these
contracts, we find the contracts to be valid 8(0 agreements even assum-
ing they resulted from the Locals' picketing See Ryan Heating Co, 297
NLRB No 91 (Jan 31, 1990), Laborers Local 1184 (NVE Constructors),
296 NLRB 1325 (1989) In this regard, we note that the picketing was
peaceful and that there is no allegation that It exceeded the time limita-
tions set forth in Sec 8(3)(7)(C) of the Act
'The judge's recommended notice Inadvertently omitted the narrow
cease-and-desist language Included in his recommended Order Accord-
ingly, we have issued a new notice
297 NLRB No 150
tached notice is substituted for that of the adminis-
trative law judge
APPENDIX
NOTICE TO EMPLOYEES .
POSTED BY ORDER OF THE .
NATIONAL LABOR RELATIONS BOARD.
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT threaten our employees with dis-
charge if they refuse to join a union
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for refusing to join a union
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Earl Barker Jr, David Justice,
David Mead, Billy Smith, Troy Slater, Floyd
Stroud, Clinton Smith, Brian Blair, and Mark
Curry immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharge, less any net intenm earnings,
plus interest
WE WILL notify each of them that we have re-
moved from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way All union cards distnbuted
by the Company and signed under threat of dis-
charge will be voided
METRIC CONSTRUCTORS, INC
James E Homer, Esq , for the General Counsel
Roger A Wolfe, Esq (Jackson & Kelly), of Charleston,
West Virginia, for Respondent Metric
Grant Crandall, Esq (Crandall & Pyles), of Charleston,
West Virginia, for Respondent Local 14614
Irwin S Cutler Jr, Esq (Segal, Isenburg, Sales, Stewart &
Cutler), of Louisville, Kentucky, for Respondent Local
14581
Lafe C Chafin, Esq (Barrett, Chafin, Lowry & Hampton),
of Huntington, West Virginia, for Charging Party Op-
erating Engineers
Earl Barker Jr, pro se
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
HUBERT E Lorr, Administrative Law Judge These
consolidated cases were heard in Williamson West Vir
gima on March 2 and 3 1988 upon unfair labor prac
tices charges filed by Earl Barker Jr an individual and
Operating Engineers Local No 132 against Metric Con
structors Inc (Metric), United Steelworkers of America
Local Union No 14614, AFL-CIO (Local 14614) and
United Steelworkers of America Local Union No 14581
(Local 14581) on February 10 and 25 and December 29
1987, alleging violations of Section 8(a)(1), (2) (3) and
Section 8(b)(1)(A) and (2) of the Act
The primary issues are (1) Whether Theodore Dun
brach is a supervisor for Metric within the meaning of
Section 2(11) of the Act (2) Whether Ronald Donald
violated Section 8(a)(1) of the Act when he threatened
employees with discharge if they did not join Respond
ent Local 14614 (3) Whether Respondents Metric and
Local 14614 violated Section 8(a)(1) and (2) and Section
8(b)(1)(A) of the Act by Metric recognizing and entering
into a collective bargaining agreement on December 10
1986, with Respondent Local 14614 (4) Whether Re
spondents Metric and Local 14581 violated Section
8(a)(1) and (2) and Section 8(b)(1)(A) of the Act by
Metric recognizing and entering into a collective bar
gaining agreement on December 15 1986 with Respond
ent Local 14581 (5) Whether Respondent Locals 14614
and 14581 violated Section 8(b)(2) of the Act by entering
into collective bargaining agreements containing prehire
clauses on December 10 and 15, 1986 (6) Whether Re
spondent Metric violated Section 8(a)(1) and (3) of the
Act by discharging nine employees on January 6 and 8
1987
The parties were afforded an opportunity to be heard,
to call, to examine and cross examine witnesses, and to
introduce relevant evidence Since the close of hearing
briefs have been received from the parties
On the entire record and based on my observation of
the witnesses, and consideration of the briefs submitted I
make the following
FINDINGS OF FACT
I JURISDICTION
The Company, a North Carolina corporation is en
gaged in the construction of highways and large struc
tures including a floodwall on the Tug Fork River,
hamson West Virginia During the past 12 months, the
Company in the course and conduct of its business oper
ations described herein, purchased and received at its
Williamson West Virginia facility goods and materials
valued in excess of $50 000 directly from points outside
the State of West Virginia The Company admits and I
find that it is an employer engaging in commerce within
the meaning of Section 2(2), (6) and (7) of the Act Re
spondents admit and I find that Operating Engineers
Local No 132 Steelworkers Local 14614 and Steel
workers, Local 14581 are labor organizations within the
meaning of Section 2(5) of the Act
II UNFAIR LABOR PRACTICES
In the summer of 1986 1 Respondent Metric which is
part of the Jones Group, a large international construc
tion conglomerate was awarded a contract by the Army
Corps of Engineers for the construction of a floodwall
along the banks of the Tug Fork River between Ken
tucky and West Virginia The project was bid at ap
proximately $24 million and was ultimately to employ 65
employees Ninety five to ninety eight percent of the
work was to be performed on the West Virginia side of
the river and the remainder was to be performed on the
Kentucky side
Before the project began Ed Overby president of
Local 14614 (West Virginia Local) called Metric s Dave
LaBounty to discuss a labor agreement Overby was told
that Metric operated an open shop and there help was
not needed
Construction of the Tug Fork River project began in
early October on the Kentucky side of the river Initially
the state unemployment service furnished the laborers
needed Construction Manager Ron Donald testified that
the unemployment office referred many more applicants
than were needed According to Donald, in the last
quarter of 1986 only laborers and mobile equipment op
erators were needed to clear the land excavate and haul
dirt and trees away
When Senior Safety Personnel Supervisor Theodore
Dunbrach hired Earl Barker Jr, Troy Slater and Clin
ton Smith he explained their job duties and wages and
further explained that their fringe benefits would be
$2 70 per hour on the Kentucky side and $1 85 per hour
on the West Virginia side However, in lieu of fringe
benefits this money would be paid into a managed trust
fund which would be paid to them after the project was
complete or they left Metric s employment Dunbrach
further stated that since the project was expected to take
4 years, each employee could receive $18 000 to $20 000
from the fund at completion He also told the employees
that Metnc was nonunion and expected to remain that
way
In late October three or four pickets appeared at the
West Virginia Metnc construction site carrying signs
reading Metric Constructors is not signatory to United
Steelworkers of America Local 14614 The picket line
was established on the West Virginia side at the direction
of Gerald (Ed) Overby whose ultimate intention was to
obtain a collective bargaining agreement from Metric
No cessation of work was caused by the West Virginia
picketing
In the third week of November, a separate picket line
was established at the Metric construction site on the
Kentucky side of the river George Cantrell Local
14581 vice president testified that he provided 40 or 50
pickets from the Local in an effort to organize Metric
They picketed for 1 week When picketing began on the
Kentucky side Ron Donald decided to stop work on the
project The Kentucky side was shut down for 3 1/2
days All picketing was peaceful and no damage was
done to any Metnc equipment
All dates refer to 1986 unless otherwise indicated
METRIC CONSTRUCTORS 915
Ron Donald testified that in early November, he sen-
ously considered signing a labor agreement with the
Steelworkers because he could not get nonunion skilled
employees He came to realize that nearly all the skilled
employees, in this area, belonged to a union, in particular
the Steelworkers Forest Nelson, heavy group manager,
testified that their contract with the Corps of Engineers
contained an 80-percent local hire rule and that the
Davis Bacon law also applied to this contract On No-
vember 18, Ron Donald called Ed Overby and George
Cantrell, who is the son of Charles Cantrell, president of
Local 14581 Donald told them he wanted to have a
meeting with representatives of the two Locals to discuss
the possibility of signing a contract
On November 20, Donald met with representatives of
both , Steelwoikers' Locals separately He told both
Overby and George Cantrell that he wanted a contract
with the Unions because they could provide skilled
workers He also stated that he wanted a project agree-
ment as opposed to an area agreement Donald told Can-
trell that he wanted to sign an agreement with the West
Virginia Local for the whole project but Cantrell refused
to agree to this Donald took Overby's proilosed con-
tract which was the West Virginia Contractors Bargain-
ing Association Agreement with him and discussed it
with his people In the interim, Donald had many tele-
phone conversations with Overby about the agreement
Finally Donald drafted a letter of assent which modified
or changed the basic agreement
On December 1, Donald met with Overby in Charles-
ton, West Virginia, and reviewed the letter of assent
They made changes which were incorporated into a re-
draft which was finally signed on December 10 The
agreement with Local 14614 covers the Tug River
project only and contains a prehire agreement requinng
all employees, covered by the agreement, to become and
remain members of the Union on the eighth day follow-
ink their hire or the execution of the agreement, which-
ever is later
Around the same time, Donald met with Charles Can-
trell Cantrell was adamant that he would not accept a
project agreement but only a statewide agreement and
would not agree to relinquishing the entire project to the
West Virginia Local Accord was reached and the par-
ties signed a statewide agreement on December 15 This
agreement also contains a prehire clause requiring all em-
ployees covered by the agreement to become and remain
members of the Union on the 1 1 th day following their
hire or the execution of the agreement, whichever is
later
Respondent Metnc denies that any threats were made
by any union officials in an effort to have it sign a labor
agreement Respondent also denies being forced to sign
the labor agreements
On December 22, Donald _met with Overby and
Charles Cantrell to work out the details of administering
the two contracts since his employees would be working
under the jurisdiction of two different Local unions
having different wage rates and fringe benefit funds At
the beginning of this meeting Charles Cantrell an-
nounced that since so little work was to be done in Ken-
tucky, he would turn over the entire floodwall project to
the West Virginia Local Cantrell left the meeting and
the Kentucky Local (14581) has had nothing to do with
the project since then After that, Donald and Overby
reviewed the agreement, the mechanics of signing au-
thorization cards, and how to collect and remit dues to
the Union It was agreed that because of the holidays,
they would implement the agreement after the first of
the year
On December 23, Donald met with his current em-
ployees, which numbered 17, including the 9 alleged dis-
cnminatees Donald told his employees that he had
signed an agreement with Steelworkers Local 14614 be-
cause the Union threatened to blow up his equipment if
he did not sign an agreement He stated that if the em-
ployees did not join the Steelworkers Union, they would
be discharged and the best way to get the needed skilled
workers was out of one union He therefore did not want
to deal with any other union including the Operating En-
gineers He also told the employees that the fringe bene-
fit money paid into the managed trust fund would have
to be paid into the Union's health and welfare and pen-
sion funds The loss of the fringe benefit money upset the
employees who objected to joining the Steelworkers
Union or any union David Mead asked Donald about
what would happen if an employee sought legal advice
on the matter Donald replied that he would get rid of
him Donald testified that he lied to the employees about
being threatened because, he wanted the employees to be-
lieve it was not his fault but the Kentucky Local's fault
for having a labor agreement, thus avoiding a confronta-
tion with his employees He further admitted threatening
employees with discharge if they did not join the Union
He admitted that he erroneously believed that employees
had to join the Union or be discharged He later attempt-
ed to correct his error by sending a letter dated Febru-
ary 13, 1987, wherein he informed some employees that
their termination was due solely to their refusal to pay
initiation fees and dues, and if they remitted such pay-
ments, they would be reinstated Donald testified that he
was never threatened by any union official that his
equipment would be damaged if he did not sign a labor
agreement He also stated that no Metric equipment was
damaged
Some of the employees met with Ed Overby in late
December to discuss the implementation of the collec-
tive-bargaining agreement Overby explained that they
had to sign a health and welfare card and an authoriza-
tion card or be discharged
Sometime in late December, eight employees, led by
Earl Barker, sought out the United Mine Workers of
Amenca On December 29, 10 employees met with
UMWA Representative Charles Dickson at the William-
son, West Virginia fieldhouse, where all 10 employees
signed UMWA authonzation cards Barker later obtained
three other employee signatures on UMWA authoriza-
tion cards Dickson told the group that they had to get a
majonty of the employees signed up before he could rep-
resent them On January 5, 1987, a, meeting took place
between representatives of UMWA and Metric Union
Representatives Lewis Burke and Dean Bentley met with
Project Manager Buck "King" Burke told King that he
916 DECISIONS pF THE NATIONAL LABOR RELATIONS BOARD
had enough cards to petition for an election King re
sponded that although there were presently 19 employ
ees, this was only the beginning of the work force and
that the project involved an expanding unit According
to Burke King told him that they had already signed an
agreement with the Steelworkers because they were ex
penencmg difficulty in finding skilled workers and there
were no coal mines at his company Burke explained the
UMWA had a construction local The meeting ended
with King stating that he would check with the home
office
Later the same day all employees were given enve
lopes by Ted Dunbrach and other supervisors, contain
ing Steelworkers authorization, checkoff authorization
and health and welfare cards with a letter dated January
5 1987 stating that the Company had signed a labor
agreement with Steelworkers Local 14614 which re
quires all craft employees who were employed prior to
December 10 to become members of Local 14614 The
letter ended by stating that if the employees did not
become members of Local 14614 by January 6 1987,
they would be terminated
When the employees reported for work on January 6
1987, they were confronted by Metnc Supervisors Ted
Dunbrach Jeff Beatty, and Bill Rider and asked whether
they had signed the cards they were given the day
before When each indicated that he had not, he was ter
mmated by Ted Dunbrach who filled out employee ter
mmation reports for each employee indicating that the
reason for termination was refusal to sign authorization
cards for Steelworkers Local 14614 The group that was
terminated consisted of Earl Barker Jr David Justice
David Mead, Billy Smith Troy Slater Floyd Stroud
Clinton Smith and Brian Blair Mark Curry was termi
nated on January 8 1987 for the same reason
The Metric employees who were discharged on Janu
ary 6, 1987, immediately established a picket line in front
of the Metric office for 3 days The next day they were
joined by a large number of UMWA pickets On January
8, 1987, Bill Davis of the UMWA told the Metric em
ployees that his union was withdrawing its support and
its petition for an election and would not represent them
because he did not want any conflict with another labor
organization Davis indicated that he had talked with the
Steelworkers and was assured that the men could have
their jobs back if they signed the appropriate union
cards
Toward the end of the week Dunbrach held meetings
with discharged employees and told them that if they
signed Steelworkers authorization cards they could have
there jobs back As a result of these meetings Mark
Curry, David Mead, Troy Slater, Floyd Stroud and
Brian Blair signed union authorization cards and re
turned to work on January 12, 1987 The remaining four
employees received a letter from Metric dated February
13 1987 which is described above in Ron Donald s testi
mony As a result of this letter, Earl Barker Jr David
Justice Billy Smith, and Clinton Smith signed union au
thonzation cards and returned to work on February 19
1987
Earl Barker testified that in late February 1987 he was
talking to Supervisor Bill Rider about the Steelworkers
contract and Rider told him that he was present at the
bargaining table when the Steelworkers where trying to
get a contract and threatened to blow up Metric equip
ment
III ANALYSIS AND CONCLUSIONS
A The Status of Theodore Dunbrach
The undisputed evidence is clear that Dunbrach is a
supervisor within the meaning of Section 2(11) of the
Act, because he hired and discharged many of the al
leged discnmmatees at issue in this case
B The 8(a)(1) Violations
Ronald Donald admitted threatening employees with
discharge if they did not become members of Local
14614 This threat was made on December 23 and was
repeated in a letter to employees dated January 5 1987
The only other independent 8(a)(1) allegation was with
drawn by counsel for the General Counsel
Accordingly I find that on December 23 and January
5 1987 Respondent Metric threatened employees with
discharge if they refused to become members of Local
14614 in violation of Section 8(a)(1) of the Act
C Whether Respondent Metric and Local 14614
Violated Section 8(a)(1) and (2) and Section
8(b)(1)(A) of the Act by Metric's Recognizing and
Entering into a Collective Bargaining Agreement on
December 10 with Respondent Local 14614
General Counsel argues that Respondent Metric was
coerced into signmg a labor agreement with Local 14614
by threats and picketing As a result of these union acts
the agreement between the parties lost the protection of
Section 8(f) of the Act Therefore since Metric entered
into an agreement with a minority union it gave unlaw
ful support to a labor organization in violation of Section
8(a)(2) of the Act and the Union by its acceptance of ex
clusive bargaining authority violated Section 8(b)(1)(A)
of the Act
The threats refer to Donald s telling employees on De
cember 23 that he had no choice but to sign an agree
ment with the Steelworkers Union because they threat
ened to blow up his equipment if he did not Earl Barker
testified to the same threat bemg repeated to him by Su
pervisor Bill Rider in late February 1987
I credit Ronald Donald when he testified under oath
that he lied to the employees about the threat in order to
shift the blame to the unions for having to sign a labor
agreement I credit him because his testimony appeared
to be truthful when he admitted to lying to his employ
ees I also credit his testimony because there was no evi
dence presented to contradict his testimony that no
threats were made I also credit his testimony because
the only evidence of threats offered by General Counsel
was hearsay evidence unsupported by any direct evi
dence Moreover I find that General Counsel never of
fered any evidence as to which union made the alleged
threats
With respect to the Earl Barker testimony, I find this
evidence to be hearsay m character unsupported by any
METRIC CONSTRUCTORS ' - 917
direct evidence that threats were actually made to
anyone The only direct evidence offered came from
Metric officials who stated that no threats were made to
them, pickets engaged in peaceful picketing, and no
damage was done to their equipment
General Counsel argues that the picketing in and of
itself was coercive and that I should infer that it forced
Metric to sign a labor agreement with Local 14614 I
cannot make that inference in light of the evidence Re-
spondent Metric denies that the picketing forced them to
sign an agreement Respondent Metric's witnesses testi-
fied that they signed a labor agreement with Steelwork-
ers Local 14614 because they found that skilled workers
in the area were all unionized and they eventually would
need skilled workers to complete a project of this magni-
tude This evidence is supported by UMWA Representa-
tive Lewis Burke who I considered to be a disinterested
witness It should also be noted that General Counsel
never alleged in the complaint that Respondent Metric
was coerced into signing an agreement All the com-
plaint refers to is that the Union did not represent an un-
coerced majority of employees which is alleged as a vio-
lation of Section 8(b)(1)(A) and does not apply to em-
ployers Slate Workers Local 66, 267 NLRB 601 (1983)
Furthermore, General Counsel does not assert nor does
the evidence indicate that the threats or picketing were
directed at Metric's employees It seems clear that there
was peaceful recogmtional picketing by both Steelwork-
ers Locals It is also clear that no 8(b)(7)(C) allegation
was made nor was that issue before me in this hearing
Therefore, I find that General Counsel did not prove
that the picketing was coercive as to Metric or its em-
ployees and I recommend dismissal of the 8(a)(1) and (2)
and 8(b)(1)(A) allegations against Respondents Metric
and Local 14614
D Whether Respondent Metric and Local 14581
Violated Section 8(a)(1) and (2) and Section
8(b)(1)(A) of the Act By Metric Recognizing and
Entering into a Collective-Bargaining Agreement on
December 15 with Respondent Local 14581
I recommend dismissing the allegations against Re-
spondents Metric and Local 14581 for the same reasons
stated above in paragraph C
E Whether Respondent Locals 14614 and Local
14561 Violated Section 8(b)(2) of the Act by Entering
into Collective-Bargaining Agreements Containing
Prelure Clauses on December 10 and 15
I have already found that the parties entered into valid
collective-bargaining agreements which contain prehire
clauses No one contends that the prehire clauses do not
comply with Section 8(f) of the Act General Counsel al-
leges that by merely entering into an agreement contain-
ing the prehire clauses, the Local Unions violated Sec-
tion 8(b)(2) of the Act Based upon my findings and rec-
ommendations stated above, I recommend dismissing the
8(b)(2) allegations against both Local Unions
F Did Respondent Metric Violate Section 8(a)(1) and
(3) of the Act by Discharging Nine Employees on
January 6 and 8, 1987
The evidence is clear that Respondent Metric dis-
charged the nine employees on January 6 and 8, 1987,
because they refused to join the Union Respondent's
witness Ron Donald admitted as much, in his testimony,
and tried to correct the mistake in his letter to some em-
ployees dated February 13, 1987 Nevertheless, none of
these employees were allowed to return until they signed
union authorization cards I also find that there is insuffi-
cient evidence to support a finding that Local 14614
caused or attempted to cause the discharge of the discri-
mmatees
General Counsel argues in brief, that in addition to
violating Section 8(a)(1) and (3) of the Act, these dis-
charges also violate Section 8(a)(2) and Section
8(b)(1)(A) of the Act However, I find that these addi-
tional violations were never alleged in the complaint and
were not before me at the hearing Therefore, I have no
way of ascertaining whether Respondents adequately de-
fended themselves at the hearing because they were not
obligated to
Accordingly, I find that Respondent Metric violated
Section 8(a)(1) and (3) of the Act when it discharged
Earl Barker Jr, David Justice, David Mead, Billy Smith,
Troy Slater, Floyd Stroud, Clinton Smith, and Brian
Blair on January 6, 1987, and Mark Curry on January 8,
1987 I further recommend dismissing the 8(b)(2) allega-
tion against Local 14614
CONCLUSIONS OF LAW
1 Respondent Metric Constructors, Inc is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
2 International Union of Operating Engineers, Local
132, AFL-CIO, United Steelworkers of America Local
14614, AFL-CIO-CLC and United Steelworkers of
America Local 14581 are labor organizations within the
meaning of Section 2(5) of the Act
3 Respondent Metric violated Section 8(a)(1) of the
Act by threatening employees with discharge if they re-
fused to join Steelworkers Local 14614
4 Respondent Metric violated Section 8(a)(1) and (3)
of the Act by discharging Earl Barker Jr, David Justice,
David Mead, Billy Smith, Troy Slater, Floyd Stroud,
Clinton Smith, Brian Blair, and Mark Curry for refusing
to join Steelworkers Local 14614
5 The aforesaid unfair labor practices affect commerce
within the meaning of 2(2), (6), and (7) of the Act
6 All other allegations not mentioned above were not
found to be violations of the Act
REMEDY
a
Having found that Respondent has engaged and is en-
gaging in unfair labor practices, I shall recommend that
it be ordered to cease and desist therefrom and take af-
firmative action necessary to effectuate the purposes of
the Act and to post an appropriate notice
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Having found that Respondent discrimmatonly dis
charged certain employees I shall recommend that Re
spondent offer them immediate and full reinstatement to
their former positions or if those positions no longer
exist to a substantially equivalent position without prej
udice to their seniority and other rights and pnvileges
and to expunge from their files any and all references to
the discharges and warnings given to them I also recom
mend that all union authorization cards signed under
duress be voided Furthermore, I shall recommend that
Respondent make the discrimmatees whole for any losses
they may have suffered as a result of the unlawful dis
charges and suspension Backpay shall be computed in
accordance with the formula set forth in F W Wool
worth Co 90 NLRB 289 (1950) with interest as pre
scribed in New Horizons for the Retarded 283 NLRB
1173 (1987) and Florida Steel Co, 231 NLRB 651 (1977)
On these findings of fact and conclusions of law and
on the entire record, I issue the following2
r ORDER
The Respondent, Metric Constructors Inc William
son, West Virginia its officers its agents successors and
assigns, shall
1 Cease and desist from
(a) Threatening employees with discharge if they
refuse to join a union
(b) Discharging or otherwise discriminating against
employees who refuse to join a union
(c) In any like or related manner restraining or coerc
ing 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
2 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
(a) Offer Earl Barker Jr David Justice David Mead
Billy Smith Troy Slater Floyd Stroud, Clinton Smith
Brian Blair and Mark Curry immediate and full rein
statement to their formers jobs or if those jobs no longer
exist to substantially equivalent positions without preju
dice to their seniority or any other rights or privileges
previously enjoyed and make them whole for any loss of
earnings and other benefits suffered as a result of the dis
cnmmation against them in the manner set forth in the
remedy section of this decision
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way
(c) All union authorization cards signed under threat
of discharge be voided -
(d) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(e) Post at its Williamson, West Virginia facility copies
of the attached notice marked Appendix 3 Copies of
the notice, on forms provided by the Regional Director
for Region 9 after being signed by the Respondent s au
thonzed representative shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered defaced or covered by
any other material
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
3 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board