Opelika Welding

National Labor Relations Board - Board Decisions

Aug 9, 1991

303 N.L.R.B. 1051 (N.L.R.B. 1991)

1051
303 NLRB No. 165
OPELIKA WELDING
1 The judge’s decision is erroneously dated 1990.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
3 In agreeing with the judge’s finding that the General Counsel established
a prima facie case that Martin was discriminatorily transferred, disciplined, and
discharged, we rely on the evidence that: (1) Plant Manager and Vice Presi-
dent of Operations Pitts asked a supervisor and a leadperson to report on the
union activities of employees; (2) Martin held union meetings in her home;
(3) the Respondent was aware that Martin wore a union steward button openly
on her clothes and work apron unlike the other two stewards who concealed
their buttons; (4) Pitts transferred Martin the same day she first wore her stew-
ard button; (5) Martin was transferred, against her wishes into jobs tradition-
ally more difficult for women to perform, and given less than the normal time
period in which to achieve required production levels; and (6) when asked if
the Respondent was trying to get rid of Martin, leadperson Ruff said, ‘‘I’m
not allowed to say.’’ Thus, unlike Salvation Army, 293 NLRB 944 (1989), on
which the Respondent relies, Martin was the most evident union supporter, the
Respondent was clearly aware of her union activities and comparatively brazen
show of support, and the evidence suggests that a plan was afoot to force her
out. These facts and the timing of the transfers and subsequent warnings and
discharge support a prima facie showing that Martin’s firing was motivated
by her union activities.
4 The Respondent relies on the Board’s decision in Animal Humane Society,
287 NLRB 50 (1987), to support its position. In that case, the Board found,
contrary to the judge, that the employer would have discharged union activist
Sztubinski based on his theft of money alone, noting that another employee
had been discharged for theft and no other employees known to have engaged
in similar conduct were kept in the employer’s employ. There was, moreover,
no showing that the circumstances of Sztubinski’s misconduct were signifi-
cantly different from those of the other employee whom the employer had
fired for theft. The present case does not involve criminal conduct, as did Ani-
mal Humane Society, and, as shown infra, prior discharges for jamming a
press did not take place under circumstances comparable to those of Martin.
5 This is another factor that distinguishes Animal Humane Society, supra,
from this case.
Opelika Welding, Machine and Supply, Inc. and
International Brotherhood of Boilermakers,
Iron Shipbuilders, Blacksmiths, Forgers, and
Helpers, AFL–CIO. Case 10–CA–24392
August 9, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On January 2, 1991,1 Administrative Law Judge
Lawrence W. Cullen issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party filed
answering briefs in support of the judge’s decision.
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 de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions, for the reasons stated below, and to adopt the
recommended Order.
We agree with the judge’s finding, for the reasons
he stated, that the General Counsel established a prima
facie case, that the Respondent transferred and dis-
charged employee Peggy Martin because of her activi-
ties on behalf of the Union, including becoming a
union steward.3 We also agree that the Respondent
failed to make out its defenses that either its discharge
of Martin was prompted solely by her carelessness in
operating a press on April 21 or that it would have dis-
charged her for that incident, even absent her union ac-
tivities. In particular, we reject the Respondent’s con-
tention that its discharges of three other employees for
jamming a press prove its case, because we do not
agree that the circumstances of those discharges were
comparable to those of Martin’s discharge.4
One employee discharged for jamming the press re-
ceived at least one written warning about his careless-
ness and had operated the press for more than a year
and a half when terminated. Martin had operated the
press for only 2 hours when it jammed. Another em-
ployee, Lee, was discharged for ‘‘careless’’ operation
of the press that resulted in $605 in damage. However,
the Respondent failed to present evidence concerning
Lee’s training and the length of time he was assigned
to the press. The third example offered by the Re-
spondent was an employee who was terminated for
jamming the press after Martin’s termination, and
therefore is of little probative value.
It is also significant that, unlike other employees
who committed careless errors, Martin was ‘‘set up’’
to commit just such an error. In other cases in which
the Board has upheld an employer’s right to terminate
an employee despite the presence of union animus, two
other criteria were present. Not only had all other
known similar offenses resulted in termination, but the
offenses were independently committed, without any
contributing activity by the employer.5 In Stoutco, Inc.,
218 NLRB 645 (1975), the employer followed an em-
ployee-driver with the ‘‘avowed purpose of trapping’’
him in the illegal use of a C.B. radio. The Board
adopted the judge’s findings that although the C.B.
trap was ‘‘motivated by discriminatory consider-
ations,’’ the employer nevertheless lawfully discharged
the employee after observing him pick up hitchhikers.
The judge in that case reasoned that even if ‘‘it is fair
to assume that the Respondent entertained a desire to
get rid of [the employee], whose union activities it re-
sented, and was pleased to have an opportunity present
itself for doing so . . . that alone is not enough to es-
tablish that the discharge was in violation of Section
8(a)(3).’’ Id. at 651 (quoting from Berland Paint City,
199 NLRB 927 (1972)). However, the employer may
not create that opportunity.
In the instant case, Martin’s path to her ultimate dis-
charge began with a transfer for which the reasons
given to her were at variance with those the Respond-
ent gave at the hearing. This was followed by other
transfers, warnings, and a suspension that the judge
found, with ample support in the record, were carried
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
out for discriminatory reasons. She was finally trans-
ferred to the No. 2 press and required to operate it
without having been trained in accordance with the op-
erations manual. The Respondent, having deliberately
placed her in a position in which she was likely to
make a mistake, cannot now claim that Martin’s failure
to clear the press on April 21 was a fortuitous act
committed independent of its discriminatory efforts to
get rid of her.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Opelika Welding, Machine
and Supply, Inc., Opelika, Alabama, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Victor A. McLemore, Esq. and Keith R. Jewell, Esq., for the
General Counsel.
Chris Mitchell, Esq. (Constangy, Brooks & Smith), of Bir-
mingham, Alabama, for the Respondent.
James R. Waers, Esq. (Blake & Uhlig), of Kansas City, Kan-
sas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on January 31, and February 1,
1990, at Birmingham, Alabama. The hearing was held pursu-
ant to a complaint issued by the Regional Director for Re-
gion 10 of the National Labor Relations Board (the Board)
on October 31, 1989. The complaint is based on a charge
filed by the International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers and Helpers, AFL–CIO
(the Union) on September 26, 1989. The complaint alleges
that the Respondent, Opelika Welding, Machine and Supply,
Inc. (the Respondent) violated Section 8(a)(3) and (1) of the
National Labor Relations Act (the Act) by on or about March
31 and April 21, 1989, changing the work assignments of its
employee Peggy Martin, on or about March 28 and April 6,
1989, issuing a verbal warning to Martin, on or about April
23, 1989, suspending Martin, and on or about April 27,
1989, discharging and thereafter failing and refusing to rein-
state Martin because of her membership in and activities on
behalf of the Union, and because she engaged in protected
concerted activity with other employees for the purposes of
collective bargaining and other mutual aid and protection.
Respondent has by its answer filed on November 9, 1989,
denied the commission of any violations of the Act.
Upon the entire record in this proceeding, including my
observations of the witnesses who testified, and after due
consideration of the briefs filed by the General Counsel and
counsel for the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
A. The Business of Respondent
The complaint alleges, Respondent admits and I find that
at all times material Respondent is and has been an Alabama
corporation, with an office and place of business located at
its Alabama facility, where it is engaged in job shop steel
fabrication, and that during the calendar year preceding the
filing of the complaint, Respondent sold and shipped from its
Opelika, Alabama facility goods valued in excess of $50,000
directly to customers located outside the State of Alabama
and that Respondent is and has been at all times material
herein a labor organization within the meaning of Section
2(6) and (7) of the Act.
B. The Labor Organization
The complaint alleges, the Respondent admits, and I find
that at all times material the Union is, and has been a labor
organization within the meaning of Section 2(5) of the Act.
II. FACTS
The Respondent operates a job shop where it engages in
steel fabrication of various products in order to fill specific
orders for its customers (i.e., G.E., Snapper Lawnmowers).
Peggy Martin was initially employed as a temporary em-
ployee by Respondent in August 1987 and became a perma-
nent employee in October 1987. Throughout most of her ten-
ure, Martin had worked as a welder on the G.E. line which
includes four welders who sit side by side and across from
each other. During her tenure as an employee, Martin had
been engaged in several arguments with other employees in-
cluding Rosa Varro and James McCurdy with whom she
worked as a welder on the G.E. line and other employees.
Martin attributed much of her problems with male employees
to unwanted sexual solicitations directed by them to Martin
for Martin to go out with them or engage in sexual relation-
ships with them. Martin’s testimony in this regard was sup-
ported by former employee Rosa Varro, the leadperson on
the G.E. line until she quit her employment in August 1989,
who testified that several of the male employees were pes-
tering Martin to go out with them. I credit Martin’s testi-
mony in this regard and Varro’s corroborating testimony. Re-
spondent introduced testimony through witness Robert Smith
that after the discharge of Martin, employee Rosa Varro told
Smith that she was going to help Peggy Martin ‘‘fuck the
Company’’ and thus contends that Rosa Varro was an unreli-
able witness whose testimony should not be credited. Varro
denied making this statement. However, even assuming she
did make the statement I do not find that it necessarily fol-
lows that this statement justifies a conclusion that Rosa
Varro was prepared to lie to assist Martin in this proceeding.
Rather, I found Rosa Varro to be a forthright witness who
testified in specific detail and I credit her testimony as here-
inafter set out. Rosa Varro and her husband Joe Varro quit
their employment wih Respondent in August 1989 in part be-
cause of dissatisfaction with their pay.
1053OPELIKA WELDING
In 1987 the Union commenced an organizational campaign
among Respondent’s employees and an election was held on
September 2, 1987, pursuant to a stipulated election agree-
ment dated June 17, 1987. The results of this election were
set aside and a second election was held on January 15,
1988, with a result of 37 votes for the Union and 34 against
representation with 3 challenged ballots. The Union was cer-
tified by the Board on December 22, 1988, following the
Board’s overruling the Respondent’s challenges to the 3 bal-
lots. Rosa Varro testified that she and fellow employee Dale
Thompson who served as a supervisor were called into Plant
Manager and Operations Vice President Tommy Pitts’ office
prior to the January 1987 election and asked by Pitts to re-
port to him any employees who were in favor of the Union
and told them they would not be forgotten in return. Thomp-
son also took up a petition among the employees to obtain
an indication as to who did not support the Union and sent
it to the Union. Varro testified she reported information con-
cerning the union activities of employees to Supervisor Lee
Owens who in turn reported them to Pitts who is the father-
in-law of Owens. Martin testified that she was active on be-
half of the Union and had meetings in support of the Union
at her home. On March 21, 1989, she and two other employ-
ees, Lee Morris and Richard Tate, were appointed as union
stewards and given buttons designating them as union stew-
ards. Martin testified she openly wore her union steward but-
ton to work on the morning of March 22, 1989, while Morris
and Tate concealed their buttons under their sweaters and
that Rosa Varro asked her ‘‘what the fuck is a union stew-
ard.’’ Varro acknowledged having asked this of Martin but
denied that she had used the expletive. I credit Martin in this
regard. Rosa Varro also testified that she immediately re-
ported to Supervisor Lee Owens that Peggy Martin was
wearing a union button and that Owens immediately called
Pitts on the phone and informed him of this. Owens initially
denied at the hearing that he had done this but subsequently
admitted that it was possible he had informed Pitts that Mar-
tin was wearing a union steward button. Owens also testified
concerning an argument that had occurred between Martin
and fellow welder Jarvis McCurdy the previous day wherein
Martin contended that McCurdy was slowing her production
as he was not passing parts from his station to hers in a
timely manner. Owens testified that he instructed McCurdy
and Martin to change places on the line in order that each
could work at the others station on the line in order to learn
the problems of the other at their respective stations on the
line. When Owens observed Martin and McCurdy the next
morning he noted that they were each at their original places
rather than at each other’s station as he had directed them
the night before. When he inquired concerning this, Martin
told him that she and McCurdy had worked out their dif-
ferences. He again ordered them to change places as he had
the day prior. He also reported this to Pitts as well as Mar-
tin’s complaints about her welding gun. According to Owens,
Pitts then asked him to bring Martin to the office where ac-
cording to Pitts, Martin, and Owens, Pitts told Martin that
the Respondent’s owner had ordered that the employees be
cross-trained several years ago and that he was moving Mar-
tin to the Snapper department to weld handlebars. Pitts testi-
fied that Martin asked why she was being sent to this depart-
ment and he replied, ‘‘Well, Peggy why not?’’
Martin was then assigned to weld handlebars on March 22,
1989, where she did not make production after a few days
and received a warning on March 28, 1989, for not making
production whereupon she thereafter made production. Jo-
seph Varro, an employee in the Snapper department, testified
he asked Foreman David Ruff why Martin had been assigned
to this task and asked whether the Respondent was trying to
get rid of her and Ruff replied ‘‘I’m not allowed to say.’’
Ruff denied making this statement. I credit Joseph Varro’s
testimony and found him to be a truthful witness. Joseph
Varro also testified only one other woman had been assigned
to this job previously and she had been taken off of it when
she was unable to do the work. On March 31, 1989, Martin
was reassigned to welding grass catchers when there were no
more handlebars to weld, a job that Joseph Varro testified no
woman had ever been assigned to previously and that only
a few men could perform up to the desired production level.
Martin failed to make production and was issued a final
warning on April 6, 1989. She subsequently continued to fail
to meet production and was reassigned to operate a press in
another department for several days. Subsequently on April
21, she was reassigned to another press known as press no.
2 wherein she was told by Foreman Ruff how to operate the
machine but was not physically shown by him how to do it
as required by the operations manual. On April 23, 1989, a
part became lodged in the top part of the press and Martin
failed to remove it causing the machine to jam and requiring
the services of at least two of Respondent’s repairmen result-
ing in several hours of down production time. Martin was
suspended on that date pending a management decision and
told to return on April 27, 1989, at which time she was dis-
charged for jamming the press.
The Respondent contends that the initial transfer of Martin
has not been alleged as a violation in the complaint and is
therefore not an element of a violation in this case and fur-
ther contends that the various transfers of Martin were based
solely on the business decision to cross-train her and in part
on her inability to get along with other employees. Respond-
ent concedes it was aware of Martin’s status as a union stew-
ard but contends that it was also aware of two other employ-
ees who served as union stewards who were not disciplined.
Respondent contends it follows progressive discipline, but
concedes that its follow through in this regard is haphazard
at best and that no copies are given to employees of various
infractions for which they are given written warnings but
contends that in all instances wherein employees have
jammed the press, they have been discharged. One of Re-
spondent’s repairmen, Dan Lora, initially testified he was
aware of two instances of a press being jammed for which
the employee was not disciplined. He subsequently testified
there was only one known to him and that he was able to
quickly fix the machine and did not report the incident to
management.
B. Analysis
I find that the General Counsel has established a prima
facie case that the transfers of Martin to more onerous jobs,
the issuance of verbal warnings to Martin, the suspension of
Martin, and the ultimate discharge of Martin were all moti-
vated by Respondent’s animus toward Martin because of her
participation in union activities. Initially, I credit Rosa
Varro’s testimony that she and employee Supervisor Dale
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Thompson were asked to report the union sentiments and ac-
tivities of other employees to Respondent’s management not-
withstanding the denials of Thompson and Pitts and that
when she reported to Supervisor Lee Owens on March 22,
1989, that Martin was a union steward, Martin was imme-
diately transferred to the Snapper department to weld handle-
bars. I also credit the testimony of Joseph Varro that the
welding of grasscatchers in the Snapper department was a
difficult assignment not previously assigned to women and
that other employees including Varro, himself, had had dif-
ficulty in meeting the desired quota or ‘‘base’’ on this job.
I further find that the assignments by management of Martin
to other tasks were motivated in part by Respondent’s ani-
mus toward the Union and Martin’s participation as a union
steward. I do not credit Respondent Plant Manager Pitts’ tes-
timony that the change was prompted by Respondent’s desire
to cross-train employees. Rather it appears that the transfer
from the G.E. line to other tasks coming immediately after
Pitts found out that Martin was a union steward was the re-
sult of Pitts’ animus toward the Union. I do not credit Pitts’
or Owens’ version that the move was prompted by Martin’s
dispute with other members of the G.E. line as that matter
had been resolved by Martin and the other employees in-
volved and when Pitts transferred Martin from the G.E. line,
he did not mention this dispute but rather premised the trans-
fer on the alleged need to cross-train employees on other
jobs. ‘‘The Board . . . has traditionally held that, given full
litigation of an event or circumstances, a variance between
the complaint and the proof is not fatal and that a judge’s
decision may address the conduct litigated.’’ Consolidated
Casinos Corp., 266 NLRB 988, 992–993 (1983). Recently in
Lear Siegler, Inc., 295 NLRB 857 (1989), the Board held the
General Counsel had put the employer on sufficient notice of
an issue concerning unlawfully terminated operations, by
stating in opening argument that a plant restoration order was
being sought despite the lack of an allegation concerning un-
lawful plant closure in the complaint. In the instant case the
General Counsel specifically contended in his opening state-
ment that the initial transfer of March 22 was
discriminatorily motivated and I would find based on this
and the evidence presented that this issue was fully litigated
and that the March 22 transfer to the Snapper department
was a violation of Section 8(a)(3) and (1) of the Act. How-
ever, I note that the charge in this case which originally al-
leged the March 22 transfer as a violation was not filed until
September 26, 1989, which is beyond the 10(b) 6-month lim-
itation. This failure to file the charge within the 10(b) period
was not mentioned by the General Counsel at the hearing
and it would be grossly unfair to require the Respondent to
assert an affirmative defense of the 10(b) period at trial. I
note as discussed supra that in his brief the Respondent al-
ludes to the failure of the General Counsel to allege the
March 22 transfer as an allegation in the complaint. Thus, I
find that although a violation would properly be found on the
merits with regard to the March 22 transfer, that the failure
to file the charge within the 10(b) period precludes the find-
ing of a violation in this case for the March 22 transfer.
However, it is well settled that events outside the 10(b) pe-
riod may be utilized to shed light on events which occur in
the 10(b) period and I find that the March 22 transfer is evi-
dence of Respondent’s knowledge of union activity on the
part of Martin, and animus toward her as a result of this
union activity and the commencement of a pattern of conduct
devised to culminate in her termination in order to rid itself
of a known union adherent. I find that the subsequent trans-
fers and the warnings, suspension, and discharge were moti-
vated at least in part by Respondent’s animus toward the
Union and its desire to retaliate against Martin because of
her support of the Union. I find the evidence supports an in-
ference that the transfers and warnings were designed to
build a record of discipline against Martin.
I have considered Respondent’s contentions regarding the
alleged offenses of Martin in failing to make production and
ultimately in causing the press to jam by failing to remove
an item lodged in the top of the press prior to operating it
again, thus occasioning the jamming of the press with con-
sequent down time of the machine and several hours of work
by repairmen of Respondent to repair it. I have also consid-
ered the minimal amount of instruction given to Martin ac-
cording to her testimony which I credit and what appears to
be an inconsistent practice of disciplining employees for
similar offenses and I am not convinced that the transfers,
warnings, suspension, and discharge would have occurred in
the absence of Respondent’s unlawful motivation.
In Wright Line, 251 NLRB 1083 (1980), enfd. on other
grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), the Board held that once the General Counsel
makes a prima facie showing that the protected conduct was
a motivating factor in the action taken against the employee,
the burden then shifts to the employer to demonstrate that it
would have taken the action even in the absence of the pro-
tected conduct. It is not sufficient for the employer to merely
show that it also had a legitimate reason for the action, but
the employer must persuade by a preponderance of the evi-
dence that the action would have taken place even in the ab-
sence of the protected conduct. I find that the General Coun-
sel has established that Respondent’s actions in transferring
Martin within the Snapper department and subsequently to
the presses and the warnings, suspension, and discharge were
motivated in part because of Respondent’s animus toward the
Union and her status as a union steward. I have taken note
of evidence presented by Respondent particularly through its
supervisors, David Ruff and Pitts, that Martin appeared to be
recalcitrant in attempting to make her base and thus leading
to the warnings issued to her and that in the instances known
to management, the Respondent has discharged employees
for jamming a press by failing to remove a die or part and
placing another item in it. I find, however, that Respondent’s
intent was not to cross-train Martin but rather to remove her
from the G.E. line because of her union activities and to
build a disciplinary record against her. I have also considered
Respondent’s contentions that Martin was argumentative but
I do not find this was the true reason for her transfers, par-
ticularly in view of Respondent’s declared statement to her
that the purpose of the move was to cross-train her. I accord-
ingly find that the Respondent has failed to rebut the prima
facie case established by the General Counsel by the prepon-
derance of the evidence and has failed to persuasively dem-
onstrate that Martin would have been transferred, warned,
suspended, and discharged in the absence of her protected
concerted activities in serving as a steward on behalf of the
Union. Roure Bertrand Dupont Inc., 271 NLRB 443 (1984);
NLRB v. Transportation Management Corp., 462 U.S. 393
1055OPELIKA WELDING
1 Under New Horizons, interest is computed at the ‘‘short term Federal rate’’
for the under payment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621.
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 objec-
tions to them shall be deemed waived for all purposes.
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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(1983), 256 NLRB 101 (1981), enfd. 674 F.2d 130 (1st Cir.
1982).
CONCLUSIONS OF LAW
1. Respondent Opelika Welding, Machine and Supply Inc.,
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers and Helpers, AFL–CIO is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent violated Section 8(a)(3) and (1) of the Act
by its transfers to more onerous work, warnings, suspension,
and discharge of its employee, Peggy Martin, because of her
engagement in protected concerted activities.
4. The above unfair labor practices in connection with the
business of Respondent as set out above have the effect of
burdening commerce and are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has violated the Act, it
shall be ordered to cease and desist therefrom, and to take
certain affirmative actions, including the posting of an appro-
priate notice, designed to effectuate the purposes of the Act.
Respondent shall rescind its unlawful transfer to more oner-
ous work of Peggy Martin and its unlawful warnings, sus-
pension, and discharge of her and offer full reinstatement to
its employee, Peggy Martin, to her former position or to a
substantially equivalent position if her former position no
longer exists and make her whole for all loss of pay and ben-
efits, including seniority and other rights and privileges sus-
tained by her as a result of Respondent’s unlawful discrimi-
nation against her. Backpay and benefits shall be with inter-
est, as computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).1
Respondent shall also expunge its records of all references
to the unlawful actions taken against Martin and inform her
in writing that this has been done and that such unlawful ac-
tions will not be used against her in any manner in the fu-
ture. Respondent shall also preserve all necessary records for
computing backpay and benefits and make them available to
the Regional Director for Region 10 or his representatives.
On these findings of fact and conclusions of law and on
the entire record, I hereby issue the following recommended2
ORDER
The Respondent, Opelika Welding, Machine and Supply,
Inc., Opelika, Alabama, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Transferring its employees to more onerous positions,
warning, suspending, or discharging its employees because of
their engagement in protected concerted activities on behalf
of the Union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind its unlawful transfers, warnings, suspension,
and discharge of its employee, Peggy Martin, and offer her
full reinstatement to her former position or to a substantially
equivalent position if her former position no longer exists
and make her whole for all loss of wages and benefits with
interest as set out in the remedy section of this decision and
restore all rights and privileges including seniority to her.
(b) Remove from its files any references to the unlawful
actions taken against Peggy Martin and inform her in writing
that this has been done and that these unlawful acts will not
be used against her in any manner.
(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 Opelika, Alabama, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of said notice,
on forms provided by the Regional Director for Region 10,
after being duly signed by Respondent’s authorized rep-
resentative, shall be posted by Respondent at its facility in
Opelika, Alabama, immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places where notices to employees are customarily
posted. Respondent shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice.
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT transfer to more onerous work, warn, sus-
pend, or discharge employees because of their support of the
International Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, AFL–CIO or engagement
in other protected concerted activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL rescind our unlawful transfers to more onerous
work of Peggy Martin and our unlawful warnings, suspen-
sion and discharge of Peggy Martin and offer her full rein-
statement to her former position or to a substantially equiva-
lent position if this position no longer exists and will make
her whole for all loss of wages and benefits sustained by her
because of our unlawful conduct, with interest, and will re-
store to her all rights and privileges previously enjoyed.
WE WILL remove from our files any references to the un-
lawful transfers, warnings, suspension, and discharge of
Peggy Martin and will inform her in writing that this has
been done and that said unlawful conduct will not be used
against her in any manner because of her support of the
Union or her engagement in other protected concerted activi-
ties.
Our employees have the right to join and support the Inter-
national Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, AFL-CIO or to refrain
from such activities.
OPELIKA WELDING, MACHINE AND SUPPLY, INC.