Nuclear Support Services

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 870 (N.L.R.B. 1994)

870
313 NLRB No. 149
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In denying the Respondent’s motion to reopen the record to con-
sider evidence concerning the appropriate duration of the remedy, we
note that, contrary to the Respondent’s assertions, the judge has not
provided for a greater than make-whole remedy for the
discriminatees. The judge states that because the Respondent treated
Powers and Kovach as being ‘‘finished’’ with the Respondent, the
backpay period is not cut off on the conclusion of the Millstone
job—the first job following the discriminatees’ layoff—but rather
that the backpay period extends to subsequent jobs until such time
as they are offered reinstatement. We agree that the Order properly
extends the remedy beyond the Millstone job, but we note that, con-
sistent with the rule of Dean General Contractors, 285 NLRB 573
(1987), the Respondent will be entitled in the compliance phase to
submit evidence in support of any claim that, pursuant to generally
applied nondiscriminatory policies, Powers and Kovach would not
have been employed on projects after the termination of the Mill-
stone job.
We grant the General Counsel’s motion to strike Addendum B, an
affidavit from an individual who did not testify at the hearing, from
the Respondent’s brief.
Nuclear Support Services, Inc. and Shawn Powers.
Case 34–CA–5701
February 28, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On June 29, 1993, Administrative Law Judge James
F. Morton issued the attached decision. The Respond-
ent filed exceptions and a supporting brief and a mo-
tion to reopen the record to adduce additional evi-
dence; the General Counsel filed an answering brief
and an opposition to the Respondent’s motion as well
as a motion to strike Addendum B attached to the Re-
spondent’s brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions and to adopt the rec-
ommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Nuclear Support Services,
Inc., Waterford, Connecticut, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Michael Marchionese, Esq., for the General Counsel.
Jeffrey Berger, Esq., of Washington, D.C., for Nuclear Sup-
port Services, Inc.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The Gen-
eral Counsel contends that Nuclear Support Services, Inc.
(the Respondent) refused to hire Shawn Powers and Robert
Kovach at one of its jobsites, after they had been laid off at
another of its jobsites, because they had complained about
various working conditions. The Respondent contends that
they were not hired because they had not made timely appli-
cations for work at the other jobsite. The complaint alleges
that the Respondent’s refusals to hire them violated Section
8(a)(1) of the National Labor Relations Act (the Act).
I heard this case in Hartford, Connecticut, on February 1
through 4, 1993. On the entire record, including my observa-
tion of the demeanor of the witnesses, and after due consid-
eration of the briefs filed by the General Counsel and the Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent furnishes temporary employees to public
utilities to assist in maintenance work. In its operations annu-
ally it meets the Board’s nonretail jurisdictional standard.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
The jobsites involved in this case are at two locations
where Northeast Inc. Utilities Inc. (Northeast) operates nu-
clear powerplants. These plants supply electricity to cus-
tomers in the State of Connecticut. One of the locations is
the Connecticut Yankee Atomic Power Plant (CY) in
Haddam Neck, Connecticut. The other location is the Mill-
stone Nuclear Power Plant in Waterford, Connecticut. There
are three units there, Millstone I, Millstone II, and Millstone
III.
Nuclear plants have to be shut down about every 12 to 18
months so that the fuel can be replaced and necessary main-
tenance work done. A shutdown of that type is termed an
‘‘outage.’’ The Respondent has a master agreement with
Northeast under which it provides Northeast with temporary
employees who augment Northeast’s own maintenance staff
on the outages at CY and Millstone.
In early 1992, Powers and Kovach, the individuals whom
the Respondent is alleged to have unlawfully refused to hire,
had been working for the Respondent at CY. The job they
were on then was nearing completion. The Respondent was
anticipating that it would be furnishing employees to North-
east for an outage at Millstone in May of that year. Outages
at CY and Millstone usually followed one another. The Re-
spondent has a policy of staffing outages, covered by a mas-
ter contract, from a pool of employees who have worked for
it and who live nearby. Thus, the practice it followed was
to notify employees, who had worked for it at CY or Mill-
stone and who lived in the area, to report to work when an
outage at CY or Millstone began.
When Powers and Kovach were laid off at CY in early
1992 and were not called to work at Millstone in May 1992,
Powers filed the unfair labor practice charge in this case.
871NUCLEAR SUPPORT SERVICES
The General Counsel contends that Powers, Kovach, and
other employees of the Respondent were, in the years prior
to 1992, routinely hired by the Respondent at CY and Mill-
stone outages or, at times, simply transferred between them,
without their having to make a formal application each time
to work at one of those outages. The General Counsel argues
that the work histories of Powers and Kovach, together with
other evidence, establish that they would have been routinely
hired by the Respondent to work at the Millstone outage in
May 1992 but for their being engaged in various activities
protected by Section 7 of the Act. As noted above, the Re-
spondent asserts that they were not hired for the Millstone
outage because they applied to work there too late to its
project manager.
B. Alleged Unlawful Refusal to Hire Powers
and Kovach
1. Alleged protected activities and animus thereto
The complaint as amended alleges that the Respondent did
not hire Powers and Kovach to work at the Millstone outage
because they had concertedly complained to the Respondent
about wages, hours, and working conditions at CY. In par-
ticular, they are alleged to have organized a protest against
the Respondent’s refusal to pay employees for the time they
were scheduled to attend a job training session, to have pro-
tested its failure to pay holiday wages, to have sought a gen-
eral wage increase, and to have voiced concern over employ-
ees being exposed to excessive nuclear radiation.
In the latter part of 1991, there were about 10 employees
of the Respondent working at CY, including Powers and
Kovach. On about September 11 of that year, Ron Spikes,
the Respondent’s assistant site coordinator there, told these
employees that Northeast had scheduled a written test to be
given on September 16. To prepare them for the test, Spikes
gave each a voluminous study guide. He also informed them
that the Respondent had scheduled a training class for them
and that they were expected to forego their overtime work
to attend it. Four or more of the employees, including Pow-
ers and Kovach, asked if the Respondent would pay the em-
ployees for attending the training session and were informed
that it would not. Powers asked if they could have more
time, a week at least, to look over the voluminous material
they had just received. Spikes became ‘‘real hostile’’ and
‘‘screamed’’ that [they] would do what [he tells them] to
do.’’
Right after the meeting ended, these employees discussed
among themselves the concerns they had about the test, in-
cluding the prospect of losing substantial overtime pay. That
same day, they went as a group to meet with the Respond-
ent’s site coordinator at CY, Bob Monfrette. They told him
that they would not attend the training session unless they
were paid.
The Respondent did not offer to pay them for attending
the training session. None of the CY employees attended it.
Those employees, and others, took the test on Monday,
September 16. They fared poorly. On the next day, Kovach
and other employees of the Respondent at CY discussed
among themselves their view that the testing procedure was
unfair.
On Wednesday, September 18, Monfrette met with the
employees of the Respondent at CY. He distributed a memo
which stated that senior technicians who score 80 percent or
better in a test ‘‘will be paid an additional .50 per hour in-
centive.’’ Monfrette told them that the Respondent had want-
ed to ‘‘get rid of [them because they] didn’t go to the train-
ing session and that he saved their jobs.’’
The Respondent then assigned the CY employees to work
only for 8 hours each day. As they thus had no overtime as-
signments, they decided to attend training session for a sec-
ond test being given by Monfrette on September 30, particu-
larly in view of Monfrette’s promise that those who passed,
i.e., at 80 percent or better, would receive a 50-cent-per-hour
raise.
It was at about this time that Kovach overheard part of a
heated discussion between Monfrette and Spikes, during
which Spikes was heard to say that those who do not like
attending the training session should be fired.
The test given on September 30 proved to be more dif-
ficult than the employees expected. Practically all of the Re-
spondent’s employees at CY scored less than 80.
Kovach, Powers, and other CY employees continued to
discuss among themselves their perception that they were not
fairly treated as to the testing. As discussed below, the Re-
spondent in January 1992 sought to mollify their feelings
about the tests. In the meantime, two other matters came up,
which the employees brought to the Respondent’s attention.
As Thanksgiving Day 1991 approached, the Respondent’s
employees at CY discussed among themselves their prospects
of getting paid time and a half if they worked on the Friday
immediately after Thanksgiving. Powers asked Monfrette, in
about mid-November whether the Respondent would pay
them time and a half for the day. Monfrette replied that he
would look into the matter. Kovach talked with Eddie King,
one of the Respondent’s supervisors of CY, about getting
extra pay for working on the Friday. Kovach told King that
he ‘‘was going to call the Labor Department to find out what
could be done about the matter. Kovach’s testimony indicates
that the employees ultimately did get the extra pay, as he re-
lated that ‘‘they corrected our checks’’ in the following
week.
In the fall of 1991, the Respondent assigned James Elkins,
its former Northeastern regional manager who had just re-
turned from military service in the war with Iraq, to assist
Monfrette. Monfrette left the Respondent’s employ in late
December, and Elkins took over as the Respondent’s project
manager, not only at CY, but also at the Millstone facilities.
Late that December, the Respondent posted a notice at CY
informing its employees that one of its divisions, Integrated
Services, had a job ‘‘tentatively coming up’’ at a plant in In-
dian Point, New York. Kovach had worked there previously
and was asked by his coworkers at CY about his experiences
there. He told them that his wage rate there was low and that
the exposure to radiation was high. Employees are allowed
by law to be exposed, in a calendar year, only to a limited
amount of radiation. In effect, Kovach was telling his co-
workers that, if they took the Integrated Services job in early
1992, they would absorb so much radiation that they would
quickly reach their exposure limits for 1992 and then would
not be eligible to work at any nuclear plant for the remainder
of the year. Several days later, project manager Elkins told
Kovach that he did not know what Kovach’s problem is.
Kovach asked him what he was talking about. Elkins replied
that Kovach was ‘‘scaring the guys . . . [that he should]
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
kick it in neutral and let’s get this outage behind us.’’
Kovach then said that he had radiation exposure records from
the Indian Plant job and that he had brought them in to show
his coworkers ‘‘what type of dose you would get.’’ He then
told Elkins that, if his coworker asked him questions, he was
going to tell them the truth because he felt that Elkins would
not.
On January 10, 1992, the Respondent sent a memorandum
to its employees at CY which stated:
several individuals . . . have not turned in resume up-
dates and training records. If you plan on working (at
Millstone) in May/June you need to get this information
turned in (as soon as possible).
Powers and Kovach, shortly before that memo was distrib-
uted, had submitted their respective resume updates to the
Respondent’s headquarters in Hershey, Pennsylvania.
On January 15, 1992, the Respondent had a meeting of all
of its CY employees. Its senior vice president, Fred Erskine,
began the meeting by apologizing for the way the tests, dis-
cussed above, had been handled. He then mentioned the up-
coming job that Integrated Services would be doing at Indian
Point. Powers, however, interrupted to say that, while it was
nice for him (Erskine) to say he was sorry about the tests,
the employees did not get the 50-cent-an-hour raise. Powers
was told that that subject was closed. Kovach spoke up, say-
ing that the employees lost $500 in overtime pay when they
attended the training sessions. Erskine resumed talking about
the Integrated Services job. Kovach then commented as to
his experience at the Indian Point jobsite, saying that the em-
ployees there did not get the things they had been promised.
Powers asked Erskine whether the employees would be test-
ed again at Millstone, referring to an outage at the Millstone
location scheduled to start in a few months. Powers also
asked if they would then be paid for attending training ses-
sions there. He also questioned Erskine as to the prospect of
employees receiving so high a radiation exposure at Indian
Point that they would not be able to work for the rest of
1992. Erskine replied that that was not an issue. As the meet-
ing approached 5:30 p.m., the time that the shift ended,
Kovach asked Elkins if the Respondent would pay the em-
ployees if they stayed late. When Elkins told him that it
would not, Kovach left and all the other employees left with
him.
2. The alleged unlawful refusals
a. The contentions
The General Counsel contends that Powers and Kovach
were not hired for the Millstone outage in April or May 1992
because of their activities discussed above. The General
Counsel bases that contention, in part, on this testimony of
General Counsel’s witnesses that Powers and Kovach indi-
cated their interest in working at Millstone in the same way
they previously had sought work at CY and Millstone out-
ages and at which they had previously been routinely hired.
The Respondent asserts that they were not hired at Mill-
stone because they did not indicate to Project Manager Elk-
ins they were interested in working there until well after Elk-
ins had drawn up the staffing roster in February 1992.
3. Powers’ work history
February 1986 to June 1986—Worked for the Respondent
at CY as a building maintenance employee.
September 1986 to December 1986—Worked at Millstone
for another employer.
January 1987 to May 1987—Employed in heavy construc-
tion work.
June 1987 to June 1989—Worked these 2 years for the
Respondent at Millstone, first as a junior mechanical mainte-
nance technician and then as a senior technician.
July 1989 to July 1990—Worked at CY for the Respond-
ent as a senior technician.
September 1990 to December 1990—Worked for the Re-
spondent at a jobsite different from CY or Millstone.
January 1991–February 1991—Worked as service techni-
cian at a Millstone outage for the Respondent.
April 1991 to July 1991—Worked as a service technician
for the Respondent at a Millstone outage.
July 1991 to March 1992—Worked as a service technician
for the Respondent at a CY outage.
[April/May 1992— Alleged unlawful failure of the Re-
spondent to hire Powers to work at a Millstone outage which
began then].
4. Kovach’s work history
July 1984 to October 1984—Worked for the Respondent
at CY.
October 1984 to November 1985—Worked for the Re-
spondent as an outage other than CY or Millstone.
December 1985 to May 1986—Worked for the Respond-
ent at CY.
May 1986 to October 1987—The Respondent’s Fire Area
Coordinator at CY and Millstone.
October 1987 to January 1988—The Respondent’s Fire
Area Coordinator at CY and Millstone.
March 1988–April 1989—Worked for another employer.
April 1989 to July 1989—Worked for the Respondent at
Millstone.
August 1989 to August 1990—Worked for the Respondent
at CY.
September 1990–November 1990—Worked for the Re-
spondent at Millstone.
October 1990 to January 1991—Worked for the Respond-
ent at CY.
February 1991 to April 1991—Site Coordinator for the
Respondent at another location.
April 1991 to July 1991—Worked for the Respondent on
turbine deck at Millstone.
April 1991 to July 1991—Worked for the Respondent at
Millstone.
July 1991 to March 1991—Worked for the Respondent at
CY.
[April/May 1992—Alleged unlawful refusal of the Re-
spondent to hire Kovach at Millstone.]
5. The staffing of Millstone
Project Manager Elkins had the responsibility for hiring
employees of the Respondent at the Millstone outage, sched-
uled to begin in May 1992. In February 1992 he prepared
his first draft of the names of the individuals he was consid-
ering for employment at that outage. He listed therein, as al-
873NUCLEAR SUPPORT SERVICES
ternates, the names of other individuals. Neither Powers nor
Kovach was named in the draft. In subsequent drafts Elkins
prepared, he listed them as not interested in working at Mill-
stone. Elkins testified that the only reason they were not
hired at Millstone was that they never had indicated interest
in working at the Millstone outage until after he fully staffed
that job. Powers’ testimony raises an issue on that point.
Powers testified that, in about the beginning of March 1992
he asked Elkins when ‘‘would we be going to Millstone.’’
His testimony was that he expected to be transferred there
as, previously, he had been routinely moved back and forth
by the Respondent between CY and Millstone outages, Pow-
ers testified that Elkins did not answer him and instead
‘‘avoided the question.’’
As to that testimony by Powers and as to other testimony
by Powers as to a later request discussed below, Elkins was
asked by the Respondent’s counsel whether he had any recol-
lection of being asked by Powers about going to work at
Millstone Elkins’ reply was in the negative.
Powers testified that, on March 20, when he was laid off
at CY, he asked Elkins when would he be going to Millstone
and that Elkins replied only, ‘‘Have a nice vacation.’’
After his layoff, Powers called the Respondent’s head-
quarters in Hershey, inquiring as to Millstone. His inquiries
were not answered.
On May 13, 1992, he spoke via telephone with Elkins. His
account thereof follows. He asked why he did not get a job
at Millstone. Elkins told him that he (Elkins), Senior Vice
President Erskine and Supervisor Spikes do not want him be-
cause he has so many problems with the Company. Powers
said that the only problem he had was that the employees
had been set up as guinea pigs in the test given them. Elkins
told him that he was not devoted to the Company; that, while
his work was good, he had an attitude; and that he came off
as hostile. Elkins also said that he had people at Millstone
with a better attitude who do not go out of their way to make
waves and to embarass the Company, unlike Powers and
‘‘several others’’ at CY. Elkins told him, in the vernacular,
that he has a horrible attitude and that he was finished as far
as the Respondent was concerned. Powers then said that he
should have spoken with Elkins earlier. Elkins told him that
he could not expect to waltz into a job. Powers replied that
he had called Fred Koller. (Koller’s office at Hershey, Penn-
sylvania, is the focal point for employee inquiries and
records.) Elkins commented that he had not avoided Powers.
The conversation ended with Powers stating that he had
worked for the Respondent a long time.
Elkins’ testimony respecting his discussion with Powers
that day is that Powers’ account is correct except that, at the
outset in responding to Powers’ inquiry, he told Powers that
he had shown no interest in working at Millstone.
Elkins testified that in early 1992, he had asked other CY
employees, whom he named, if they were interested in work-
ing at the Millstone outage and that they told him that they
were not. When Elkins was asked if he had similarly ques-
tioned Powers or Kovach, he replied that he could not re-
member every conversation. He testified that Powers and
Kovach ‘‘were extended the same amenities and courtesies
given everyone else.’’
Mark Heinomen, Northeast’s general maintenance super-
visor at Millstone asked Elkins in May 1992 to hire Powers.
Elkins declined, saying that there were ‘‘administrative prob-
lems.’’ Northeast at that time had an opening to which Pow-
ers could have been assigned.
I credit Powers’ testimony that he had, more than once,
made clear to the Respondent and especially to its project
manager Elkins his desire to work at the Millstone outage in
1992. Powers’ account struck me as candid. It also was given
in response to nonleading questions; it was consistent with
his work history with the Respondent; and in significant
areas, it was not controverted by Elkins’ testimony. One as-
pect of Elkins’ account that gave pause was the contrast be-
tween his ability to recall the names of employees whom he
asked about their interest in working at Millstone and his in-
ability to recall any such inquiry of Powers or Kovach. His
assurance that they were accorded similar courtesies does not
impress me as an acceptable substitute. There are other fac-
tors which persuade me that Powers’ account is more prob-
ably true than that of Elkins. Elkins is not the type of person
to waste time. It is unlikely that he would have told Powers,
at the outset of their discussion, that he was not hired at
Millstone because he did not apply in time and that he would
then have gone into an extended discussion with Powers over
what he himself had termed ‘‘trivial’’ matters. Also, if he
had told Powers at the outset that he applied too late, it is
likely that Powers would have responded that he had applied
and that, in any event, Elkins knew from his history of em-
ployment with the Respondent, that he had looked forward
to working at Millstone. The Respondent’s policy, as articu-
lated by its senior vice president, favors hiring from a local
pool of its experienced employees, and supports Powers’ ac-
count, not Elkins’. Another factor favoring Powers’ testi-
mony is the unwillingness of Elkins to accommodate the ex-
press request by Northeast’s supervisor, Heinomen, that Pow-
ers be hired at Millstone, particularly in the light of Elkins’
own testimony that the Respondent routinely accommodates
similar requests. I note also that the language in the January
10 memorandum supports Powers’ account; there CY em-
ployees were urged to get their resumes in if they wanted to
work at Millstone. Elkins was aware, prior to his preparing
his initial draft as to employees available to work at Mill-
stone, that Powers and Kovach had filed their resumes.
As to Kovach, his testimony is that since 1984, he worked
steadily for the Respondent except for two periods, when it
had no work openings. His practice, whenever he was not di-
rectly transferred by the Respondent from one outage to an-
other, had been to telephone the Respondent’s main office in
Hershey, Pennsylvania, for an assignment. On two occasions
in 1989, according to Kovach’s undisputed testimony, Elkins
offered him a job at Millstone. The first offer was declined
by Kovach. He accepted the second. Respecting the notice
posted in January 1992 by Elkins which advised the CY em-
ployees to update their resumes if they wanted to work at
Millstone, Elkins had faxed Kovach’s updated resume to
Hershey, Pennsylvania.
Elkins acknowledged that Kovach, like Powers, spoke up
for those who do not and that ‘‘not much gets by [Kovach].’’
Kovach was laid off on March 7. He obtained a short-term
job at an outage in Illinois with another company. He testi-
fied credibly that he called Frank Koller at the Respondent’s
office in Hershey, Pennsylvania, to inform him of this.
Koller was then in charge of the Respondent’s management
information system there which is responsible for recruiting
employees and keeping their records up to date. Kovach, on
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent contends that Powers’ statement, in his May 13
conversation with Elkins, that he should have spoken with Elkins
earlier, constitutes an admission that Elkins had required the CY em-
ployees to apply to him for work at Millstone and that Powers ad-
mittedly had failed to do so. In context, that construction is not war-
ranted. Rather, Powers had first learned from Elkins that the job he
had been waiting for since March 20 was denied him, as was any
further hope of work there. It is apparent that he was alluding to
the obvious fact that, had he known this on March 20, he could have
sought work elsewhere.
2 Wright Line, 251 NLRB 1083 (1980).
3 As the credited evidence is that Powers was told by Elkins that
he was finished with the Respondent and as Kovach was treated by
the Respondent as in tandem with Powers, their backpay periods run
beyond the Millstone outage of 1992 and continue until they are of-
fered reinstatement.
4 If exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by
the Board and all objections to them shall be deemed waived for all
purposes.
his return to his house in Connecticut, called Koller several
times, asking about working at Millstone. On May 13, Koller
informed him that there was no job for him there.
6. Analysis
Powers and Kovach were engaged in activities protected
by Section 7 of the Act where they joined with other em-
ployees in challenging the testing procedures promulgated by
Spikes, in pressing for holiday pay, in discussing with co-
workers the extent of radiation at Indian Point and in ques-
tioning the Respondent’s senior vice president on these mat-
ters at the January 15 meeting. See Manimark Corp., 307
NLRB 1059 (1992). The evidence is clear that the Respond-
ent harbored considerable animus towards them because of
their activities. Elkins, in that regard, was more than dis-
pleased with Powers’ ‘‘attitude’’ and with Kovach’s reluc-
tance to ‘‘kick it in neutral.’’ That he omitted their names,
from the initial draft he prepared soon after the January 15
meeting of those employees he planned on hiring at Mill-
stone, was not merely coincidence as to time. Putting these
factors in context with the obviously pretextual nature1 the
reason proffered by the Respondent for not hiring them at
Millstone, I find that Powers and Kovach were not given
jobs there because they engaged in the protected conduct set
out above. See Electromedics Inc., 299 NLRB 928, 940
(1990). As this finding involves ‘‘a pretext discharge,’’ it is
unnecessary to apply the Wright Line rationale.2 See Arthur
Young & Co., 291 NLRB 39 (1988).
If the Board were to apply Wright Line, I would find, for
the reasons above, that the General Counsel has proved that
the Respondent refused to hire Powers and Kovach at Mill-
stone because they engaged in activities protected by the Act
and that the Respondent failed to meet its burden of proof
that they, notwithstanding, would still have not been hired
for nondiscriminatory reasons. On that point, the Respondent
proferred evidence that it had many applicants for the Mill-
stone job and that the number of jobs there was relatively
small. That does not begin to meet the Respondent’s Wright
Line burden.
The Respondent also offered evidence that Powers at one
point was slow in filling out certain personnel forms and that
Kovach was reluctant to wear a hard hat but Elkins expressly
disclaimed those matters as having anything to do with his
decision not to hire Powers or Kovach. If anything, the Re-
spondent’s offering testimony on those extraneous matters
suggests that the Respondent proffered shifting defenses and
that further indicates the pretextual nature of its reason for
not hiring Powers and Kovach.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by having
failed and refused to hire Shawn Powers and Robert Kovach
to work at the Millstone outage in 1992 because they had en-
gaged in activities protected by Section 7 of the Act.
3. This unfair labor practice affects commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
The recommended Order shall require the Respondent to
offer Shawn Powers and Robert Kovach employment at the
Millstone outage or if those positions are no longer available,
to substantially equivalent positions at an outage without
prejudice to their seniority or other rights and privileges pre-
viously enjoyed, and make them whole for any loss of earn-
ings suffered as a result of the discrimination against them.3
Backpay shall be calculated and interest thereon computed in
the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), and New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Nuclear Support Services, Inc., Water-
ford, Connecticut, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing or refusing to hire employees because they
have, concertedly with other employees, complained about
working conditions
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) As specified in the remedy section of this decision,
offer Shawn Powers and Robert Kovach positions of employ-
ment and make them whole with interest for all wages and
benefits they lost as a result of their not being hired to work
at the Millstone outage in May 1992.
(b) Remove from its files all references to the unlawful re-
fusal to hire Shawn Powers and Robert Kovach and notify
875NUCLEAR SUPPORT SERVICES
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
them in writing that this was done and that the refusal to hire
them will not be used against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Waterford, Connecticut, copies of
the attached notice marked ‘‘Appendix.’’5 Copies of the no-
tice on forms provided by the Regional Director for Region
34, after being signed by Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately on re-
ceipt and be maintained for 60 consecutive days in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
form the date of this Order what steps the Respondent has
taken to comply.
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 have
violated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives all employee these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail or refuse to hire any employee because
he has, together with other employees, complained about
wage rates, hours of work, or other terms and conditions of
employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed by Section 7 of the Act.
WE WILL offer employment to Shawn Powers and Robert
Kovach and WE WILL make them whole, with interest, for
our unlawful failure to hire them for work because they com-
plained to us about wages, hours and other working condi-
tions.
WE WILL remove from our files all references to our un-
lawful refusal to hire Shawn Powers and Robert Kovach at
the Millstone outage in April 1992 and WE WILL notify them
in writing that this has been done and that our refusal to hire
them at Millstone will not be used against them in any way.
NUCLEAR SUPPORT SERVICES, INC.