Paul Mueller Company

National Labor Relations Board - Board Decisions

Jul 16, 2002

337 N.L.R.B. 764 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 764
Paul Mueller Company and Sheet Metal Workers
International Association, Local No. 208. Cases
17–CA–20003 and 17–CA–20266
July 16, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND BARTLETT
On January 12, 2000, Administrative Law Judge Par­
gen Robertson issued the attached decision. Both the
Respondent and the General Counsel filed exceptions.
The General Counsel filed a supporting brief.
The National Labor Relations Board has delegated its
authority to a three-member panel.
The Board has considered the judge’s decision and the
record in light of the exceptions and brief and has de­
cided to affirm the judge’s rulings, findings, and conclu­
sions only to the extent consistent with this Decision and
Order.1
For the reasons stated in the judge’s decision, we adopt
his finding that the Respondent violated Section 8(a)(3)
by reducing employee James Hulse from master crafts-
man and lowering his pay. However, we reverse the
judge’s dismissal of the additional complaint allegation
that the Respondent violated Section 8(a)(5) by unilater­
ally subcontracting certain fabrication work to T and C
Stainless, Inc. The judge found that the allegation was
barred by Section 10(b) of the Act, which forbids the
issuance of any complaint based on any unfair labor
practice occurring more than 6 months before the filing
of a charge. We agree with the General Counsel, for the
reasons stated below, that the allegation was not time
barred and that the Respondent’s subcontracting was
unlawful.
The record shows that the Union filed a charge on Au-
gust 6, 1999, asserting that the Respondent violated Sec­
tion 8(a)(5) by unilaterally subcontracting fabrication
work to T and C Stainless, Inc. On October 13, 1999, the
General Counsel issued a consolidated complaint, alleg­
ing, inter alia, that by its action the Respondent unlaw­
fully failed and refused to bargain collectively and in
good faith with the exclusive collective-bargaining repre­
sentative of its employees.2 The Respondent stipulated at
1 In his recommended Order, the judge omitted a provision forbid-
ding the Respondent from violating Sec. 7 “in any like or related man­
ner.” We find merit in the General Counsel’s exception to the omission
and have included such language in our new Order and notice.
We shall modify the judge’s recommended Order in accord with our
recent decision in Ferguson Electric Co., 335 NLRB 142 (2001). In
addition, we shall modify the judge’s recommended Order and notice to
conform with our standard remedial language.
2 The complaint listed the subcontracted work as consisting of the
fabrication of shells, heads, manways, and various other components of
the hearing that the subcontracting of the work was a
mandatory subject of bargaining and that it had neither
given prior notice to the Union nor afforded it an oppor­
tunity to bargain.
In dismissing the complaint allegation as untimely un­
der Section 10(b), the judge found that the subcontract­
ing began in November 1996 and that the Union knew of
it sometime prior to 1998 and more than 6 months before
the filing of the change on August 6, 1999. The judge
rejected the General Counsel’s assertion that the Union
first became aware of the subcontracting in June 1999
during a conversation between Union President James
Hulse and the Respondent’s human resources director,
Mike Young, and that the limitations period should begin
at that time. Instead, the judge found that Hulse’s testi­
mony regarding the conversation indicated that he al­
ready knew of the subcontracting.
The General Counsel excepts to the judge’s dismissal
on 10(b) grounds, arguing that the record demonstrates
that Hulse first learned of the subcontracting a few days
before the June 1999 meeting. In reversing the judge’s
dismissal, we rely on both the insufficiency of the evi­
dence as to the Union’s earlier knowledge of the subcon­
tracting, as well as the Respondent’s waiver of its 10(b)
defense.
Section 10(b) is a statute of limitations and is not ju­
risdictional in nature. Rather, it is an affirmative defense
which is waived if not timely raised. Public Service Co.
of Colorado, 312 NLRB 459, 461 (1993). Specifically,
the 10(b) limitations period must be raised either in the
pleadings or at hearing. Id.; McKesson Drug Co., 257
NLRB 468 fn. 1 (1981) (10(b) defense is untimely when
first raised in brief to administrative law judge). The
Board also has held that “the 10(b) period commences
running when the charging party either knows of the un­
fair labor practice or would have ‘discovered’ it in the
exercise of ‘reasonable diligence.’” R.G. Burns Electric,
326 NLRB 440, 441 (1998) (citation omitted).
Applying these standards here, it is clear that the Re­
spondent did not raise the 10(b) defense either in its an­
swer or at the hearing. Instead, the Respondent first
raised the 10(b) defense in its post-hearing brief to the
judge. The Respondent’s failure to plead or specifically
litigate this defense at the hearing clearly handicapped
the General Counsel in responding to the judge’s dis­
missal, since he had no occasion to bring out the facts on
the stainless steel tanks and other products to T and C Stainless, Inc. of
Mt. Vernon, Missouri. At the hearing, however, the Respondent and
the General Counsel stipulated that the subcontracting had only in­
cluded the chill tanks, outlet assemblies and the three-compartment
open vessel work to T and C Stainless and not the shells, heads, and
manways.
337 NLRB No. 124
765 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this issue. See Taft Broadcasting, 264 NLRB 185, 190
(1982) (untimely raising of 10(b) defense prejudiced
General Counsel’s ability to counter it). Consequently,
we find that the Respondent waived the 10(b) defense.
Moreover, even if the Respondent had timely raised
the 10(b) defense, we find that this defense fails. The
Respondent had the burden of showing that the Union
knew or should have known prior to the 10(b) period that
the work had been contracted. Dutchess Overhead
Doors, 337 NLRB 162, 166 (2001). The Respondent did
not meet this burden. Rather, the evidence relied upon
by the judge fails to establish that the Union knew of the
subcontracting outside of the 10(b) period. Thus, con­
trary to the judge’s finding, the record does not contain a
stipulation that the Union was aware of the subcontract­
ing to T and C Stainless before 1998. Nor does the tes­
timony of Hulse negate the General Counsel’s contention
that the Union first learned of the subcontracting in June
1999. Hulse testified that he only learned of the subcon­
tracting several days before his scheduled June meeting
with Young. Contrary to what the judge found, this tes­
timony does not suggest that the Union knew of the sub-
contracting (or would have known, using reasonable dili­
gence) more than 6 months prior to the filing of the
charge on August 6, 1999. For these reasons, the judge
erred in finding that the subcontracting allegation was
time-barred.
We therefore turn to the substance of the subcontract­
ing allegation. The Respondent stipulated at trial that it
had subcontracted the fabrication work to T and C
Stainless, Inc.; that the subcontracting was a mandatory
subject of bargaining; and that it neither provided prior
notice to the Union or afforded the Union an opportunity
to bargain either over the conduct or the effects of this
conduct. The Respondent thus has essentially admitted
that it violated Section 8(a)(5) by its unilateral action,
and we so find. See NLRB v. Katz, 369 U.S. 736
(1962)(employer’s unilateral implementation of changes
in terms and conditions of employment violates statutory
duty to bargain collectively).
AMENDED REMEDY
Having found that the Respondent has engaged in cer­
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. We shall order the
Respondent to immediately rescind James Hulse’s
unlawful reduction in pay and grade, to remove all refer­
ences to this unlawful reduction from its records and
notify Hulse in writing that this has been done, and to
make Hulse whole for all loss of earnings suffered as a
result of the discrimination against him, in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950). We shall order the Respondent to make unit em­
ployees whole for any losses suffered by them because of
the subcontracting of work to T and C Stainless, Inc., in
the manner set forth in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971).
Interest will be computed as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Paul Mueller Company, Springfield, Mis­
souri, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Unilaterally subcontracting bargaining unit work
without giving the Union advance notice and an opportu­
nity to bargain about the decision and its effects.
(b) Reducing its employees’ grade and pay from mas­
ter craftsman because of their Union and other protected
activities.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exe rcise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind
its unlawful reduction in grade and pay of James Hulse.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful reduction in
grade and pay, and within 3 days thereafter notify Hulse
in writing that this has been done and that the reduction
will not be used against him in any way.
(c) Make James Huls e whole for any loss of earnings
and other benefits suffered as a result of the discrimina­
tion against him, in the manner set forth in the remedy
section of the decision.
(d) Make whole unit employees for any losses they
have suffered as a result of the Respondent’s unilateral
transfer of bargaining unit work, in the manner set forth
in the remedy section of the decision.
(e) Restore the work subcontracted to T and C
Stainless, Inc. to the bargaining unit employees.
(f) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Springfield, Missouri, copies of the attached
PAUL MUELLER CO. 766
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 17,
after being signed by the Respondent’s authorized repre­
sentative, shall be posted by the Respondent and main­
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus­
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re­
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du­
plicate and mail, at its own expense, a copy of the notice
to all current emp loyees and former employees employed
by the Respondent at any time since November 1998.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re­
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com­
ply.
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.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene­
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT demote or reduce the pay of employees
from the classification of master craftsman because of
their protected activities on behalf of Sheet Metal Work­
ers International Association, Local Union No. 208 (the
Union), or any other labor organization.
WE WILL NOT unilaterally subcontract bargaining unit
work without giving the Union advance notice and an
opportunity to bargain about the subcontracting decision
and its effects.
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 Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL immediately rescind our action in reducing
the pay and grade of our employee James Hulse and re-
store him to the position and pay of master craftsman.
WE WILL, within 14 days from the date of the Board’s
order, remove from our files any reference to the unlaw­
ful reduction in pay and grade of James Hulse, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that the reduction will not be used
against him in any way.
WE WILL make James Hulse whole for all loss of earn­
ings and other benefits resulting from our unlawful re­
duction in his grade of master craftsman, plus interest.
WE WILL restore the work subcontracted to T and C
Stainless, Inc. to our bargaining unit employees in the
Springfield plant.
WE WILL make the unit employees whole, with inter­
est, for any losses they have suffered as a result of our
unilateral transfer of bargaining unit work.
PAUL MUELLER COMPANY
Richard C. Auslander, Esq., for the General Counsel.

Stanley E. Craven, Esq., Kansas City, Missouri, for the Re­

spondent.
DECISION
STATEMENT OF THE CASE
PARGEN ROBERTSON, Administrative Law Judge. This hear­
ing was held on November 2, 1999, in Springfield, Missouri.
The 17–CA–20003 charge was filed on January 6, and
amended on February 18, and April 12, 1999. The 17–CA–
20266 charge was filed on August 6, 1999. A consolidated
complaint issued on October 13, 1999.
All parties were afforded full opportunity to be heard, to ex­
amine and cross–examine witnesses, and to introduce evidence.
Upon consideration of the entire record and briefs filed by Re­
spondent and General Counsel, I make the following findings.
I. JURISDICTION
Respondent is a corporation with an office in Springfield,
Missouri, where it is engaged in the manufacture of stainless
steel tanks and related products. Respondent annually pur­
chased and received goods valued in excess of $50,000 and
sold and shipped goods valued in excess of $50,000, to and
from its Springfield location. Respondent admitted that it has
been an employer engaged in commerce at material times.
II. LABOR ORGANIZATIONS
Respondent admitted that Sheet Metal Workers International
Association, Local No. 208, has been a labor organization at all
material times.
767 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRA CTICE ALLEGATIONS
Respondent admitted that the following employees constitute
an appropriate bargaining unit and that the Union has been the
exclusive collective-bargaining representative for those em­
ployees from at least 1977:
All full–time and regular part–time craftsmen, fabricators and
production employees employed by Respondent at its Spring-
field, Missouri facility excluding all executive, managers, pro­
fessional employees, technical employees, office employees,
clerical employees, guards and supervisors as defined in the
Act and employees employed in the machine shop, mainte­
nance areas and other machinist work areas.
At material times the bargaining unit has included approxi­
mately 400 employees. A majority of the unit employees went
on strike in July 1995 and that strike has continued to date.
During that period with the exception of 1-1/2 days, the Union
has maintained a picket line outside Respondent’s property. All
but 15 of the striking employees have either returned to work or
made offers to return to work. Beginning during the strike and
continuing to date, Respondent subcontracted certain work
including chill tanks, outlet assemblies, and a small product
called three–compartment open vessel, to T and C Stainless
without bargaining with the Union.
Alleged discriminatee James Hulse has worked for Respon­
dent since August 3, 1963. Hulse was an alleged illegal dis­
chargee in an earlier unfair labor practice case that resulted in a
settlement with Hulse being returned to his original job and
paid $240 in backpay. He was involved in several unfair labor
practice hearings 1 and an alleged discriminatee in unfair labor
practices found by Administrative Law Judge Ladwig.2 Hulse is
president of the Local and has been its chief steward for 25
years. As chief steward he filed 14 grievances between Sep­
tember 3, 1996, and December 18, 1998. As shown in Judge
Ladwig’s decision (JD–60–97).3 Hulse went out during the
1995 strike and returned to work in early June 1996.
Hulse was a master craftsman.4 Hulse testified that he was a
lead man until 1987 when the leadman classification was re-
1 See for example Paul Mueller Co., JD (SF)–14–99 at page 3.
2 That decision (JD–60–97) by Judge Ladwig is pending on appeal
before the NLRB.
3 GC Exh. 2.
4 GC Exh. 5, sec. 4 at page 6 reads:
The Company may, at its discretion, designate one or more
employees to a Master level within any job classification. Master
level employees will be paid the following amounts above the pay
rate of their current classification:
Craftsman $0.75/hour
Fabricator $0.60/hour
Production Worker $0.40/hour
Employees assigned to the Master level will have demonstrated the
highest degree of skill, ability, performance and dependability within
their classification. Each assignment will be reviewed and approved by
the appropriate Supervisor and a Superintendent prior to implementa­
tion.
In addition to their normal duties, Master level employees are re­
sponsible for:
moved from the contract. Subsequently the master craftsman
language was included in the implemented contract offer (GC
Exh. 5) and Hulse has been a master craftsman since that time.
He worked in Department 944 as shear and brake operator until
November 1998.
Respondent eliminated Department 944 in November and
transferred all those employees from both the first and second
shifts to other departments. Hulse had worked on first shift in
944 along with Charles Cates, John Downs, John Bradley, Wil­
ford Judy, and Joe Laugherty. Cates and Hulse were the only
master craftsmen on that shift. Hulse had approximately 25
years service as leadman or master craftsman while Cates had
only 5 or 6 years service as master craftsman.
The 944 second shift included Fred Willis and Willis’ helper,
Terry Gustin, Charles Usher, and Derrel Harold. Fred Willis
was the only master craftsman on that shift but Willis did not
have as much seniority as master craftsman as Hulse.
On November 19, 1998, Hulse’s supervisor5 told him that
944 was being eliminated and that Hulse would lose his master
craftsman pay.
Hulse was transferred to Department 949 where he per-
formed the same work he had performed in 944. He talked with
McKenna again on December 4. Hulse asked McKenna why
his pay was cut when Charles Cates still had master craftsman
status when he was up on the hill with only one other em­
ployee. Hulse pointed out that he had four or five employees
working with him in Department 949 and that those employees
asked him questions about how to perform their jobs. Hulse
also told McKenna that his skills and abilities were the same as
when he was master craftsman. McKenna referred Hulse to
Dwayne Shaw. Shaw told Hulse that Respondent had the right
under the implemented last contract offer6 to put him back in
wage level. Hulse testified that Shaw told him he had lost his
master craftsman pay because he was no longer leading any
other employee. Manufacturing Operations Manager Dwayne
Shaw agreed that he demoted Hulse from master craftsman
because Hulse was no longer leading other employees. Shaw
pointed out that Respondent also demoted John Macak from
master craftsman when all the employees that worked with
Macak were laid off.7 On cross–examination Shaw admitted
that three out of the five employees in the warehouse–receiving
department are classified as master employees.
directing employees in job procedures and other phases of work to
perpetuate the trade; conferring with the Supervisor regarding quality
and quantity requirements and the solution of specific problems; plan­
ning and performing work from schedules, specifications and verbal
or written instructions; and completing appropriate reports and records
as required.
Master level employees are not required to hire, discharge, discipline
or recommend such actions. The Company may return any employee
from their Master level designation back to their regular job classifica­
tion and pay scale at any time.
Master level pay will be given to employees who are assigned to
train other employees in company training schools (i.e.; welding, grind­
ing, layout, etc.).
5 Chris McKenna was Hulse’s supervisor.
6 GC Exh. 5.
7 See RX 1(a)–(e).
PAUL MUELLER CO. 768
Charles Cates and Fred Willis are not members of the Union.
Both were hired as replacement workers during a 1987 union
strike.
Conclusions
Credibility
I credit the testimony of James Hulse. Hulse impressed me
with his demeanor and candid response to questions from both
attorneys. Moreover, as shown herein, there was no testimony
disputing Hulse. The only witness called by Respondent was
Dwayne Shaw. Even though Shaw was involved in at least one
conversation with Hulse, he did not dispute Hulse’s account of
that incident. I do not credit Shaw’s testimony as to the reason
why Hulse was reduced in grade. I credit testimony in addition
to that of Hulse including that of Shaw, Walter Ipock, and John
Bradley, which was not in conflict with other evidence.
Findings
James Hulse
The General Counsel has the burden of proving that the em­
ployers were motivated to demote employees because of union
protected activities. See Manno Electric, 321 NLRB 1, fn. 12
(1996); Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
Discontinuation of Master Status
There is no dispute but that Hulse engaged in extensive pro­
tected union activity and that Respondent was aware of those
activities. Moreover, as shown herein and in earlier decisions
involving Respondent, there is no dispute but that Respondent
has repeatedly demonstrated union animus. That animus has
been directed against Hulse as shown in JD–60–97. The Gen­
eral Counsel proved disparity by showing that Respondent
selected other employees that had not engaged in union activi­
ties to retain their master status when it elected to discontinue
Department 944 in November 1998. Both Charles Cates and
Fred Willis were junior to Hulse as master craftsmen and both
Cates and Willis had acted contrary to the Union by accepting
assignment as replacement workers during the 1987 union
strike. Both, like Hulse, were assigned to Department 944 be-
fore its elimination. However, Cates and Willis continued as
master craftsmen.
Moreover, Dwayne Shaw admitted on cross–examination
that three of the five employees in the warehouse–receiving
department have master status and Walter Ipock testified that
his supervisor told him that he would be a master craftsman
even if he were transferred to another department. I am per­
suaded on the basis of that evidence, that Respondent did not
consistently require its master employees to exercise leadman
responsibilities.
On the basis of that evidence and the full record, I find that
General Counsel has proved that Hulse was a known union
advocate, that Respondent demonstrated union animus, and that
it treated Hulse in a disparate manner by discontinuing his mas­
ter status.
I am not convinced that Respondent would have discontin­
ued Hulse’s master status in the absence of union activity. Re­
spondent proved that employees John Macak and Richard
Applegate were deprived of their master status in January and
August 1998. However, I find those situations must be distin­
guished from James Hulse. Neither Macak nor Applegate were
involved in the elimination of a department and the transfer of
all employees from that department to other areas. Instead
Macak and Applegate saw the number of employees in each
respective work area reduced to only Macak and Applegate.
There was no showing that Respondent had an opportunity in
either of those two cases to place Macak or Applegate in a posi­
tion where there was a need for a master craftsman.
Respondent contends that Hulse was reduced in pay because
there was no longer a need to use him in a leadman capacity
and that master craftsman pay is justified only when the master
craftsman acts as leadman. However, as shown above, the defi­
nition of master craftsman is dependent on the employee dem­
onstrating the “highest degree of skill, ability, performance and
dependability within their classification.” Respondent does not
deny and in fact, Dwayne Shaw admitted, that Hulse has re­
tained his skill as a master craftsman.
Moreover, the record failed to show that Respondent could
not have assigned Hulse to a position after the elimination of
Department 944, that included the responsibilities included
within the definition of master status (GC Exh. 5). In fact as
shown above, that is precisely the direction Respondent took in
making an assignment to Charles Cates.
I find that Respondent failed to prove it would have discon­
tinued the master craftsman status of James Hulse in the ab­
sence of Union and protected activity. The record proved that
Respondent engaged in conduct in violation of the provisions of
Section 8(a)(1) and (3) by reducing Hulse from master crafts-
man.
More Onerous Working Conditions
As shown above, the record illustrated that Respondent
unlawfully discontinued James Hulse’s master pay status. In
making that finding I determined that Respondent may have
elected to place Hulse in a different department than depart­
ment 949, if it had been sincere in its concern that its master
craftsmen exercise leadman authority. However, by making that
observation, I do not find that Respondent engaged in unlawful
activity by making a different departmental assignment and I do
not find that Hulse was given a more onerous work assignment.
When 944 was eliminated, Hulse was retained on the first
shift doing work similar to that he had previously performed in
944. Hulse did testify to having heard that he may be assigned
to work the 16–foot shear but there is no evidence that man­
agement had made a decision at that time or that it was ever the
intention of management to make that assignment to Hulse.
Moreover, there was no showing that Hulse requested assign­
ment to the 16–foot shear or to any job other than the ones he
was assigned in department 949. Although Hulse testified as to
the fact that the 16–foot shear would have been easier for him
to operate than other jobs because of a previous back injury,
there was no showing that Respondent knew how Hulse felt in
that regard. I find that General Counsel failed to prove that
Respondent engaged in unlawful activity by assigning Hulse to
more onerous work.
769 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Unilateral Subcontracting
General Counsel alleged and Respondent stipulated that it
has unilaterally subcontracted unit work including chill tanks,
outlet assemblies, and three compartment open vessel from the
time of the union strike.8 Obviously the initial subcontract to T
and C Stainless occurred more than 6 months before the filing
of the charges herein. However, General Counsel argued that
the Union first learned that Respondent was subcontracting to T
and C Stainless in June 1999 when James Hulse met with Hu­
man Resources Director Mike Young.
The record including stipulations shows that the Union has
been aware of the subcontracting to T and C Stainless from
before 1998. Apparently General Counsel is contending that
Respondent had an obligation to advise the Union it was con­
tinuing to subcontract to T and C Stainless, at some time during
the section 10(b) period.
However, that is not the sense of General Counsel’s evi­
dence. Union President James Hulse testified regarding the
unilateral change allegations. Hulse testified about his June
1999 conversation with Mike Young. James Hulse asked Mike
Young if “they were going to subcontract out any work besides
(T and C)” (Tr. 39–40). Hulse then admits that Young told him
that Respondent was not engaged in any new subcontracting.
Hulse’s testimony is the only testimony regarding that meet­
ing. Mike Young did not testify. However, Hulse’s testimony
does not support General Counsel’s contention. Instead it
shows that the Union was already aware of the T and C
Stainless subcontract and that it learned during that meeting
that Respondent had not engaged in any new and recent sub-
contracting of unit work.
Under Section 10(b) of the Act no complaint shall issue
based on any unfair labor practice occurring more than 6
8 As shown herein the Union struck Respondent in 1995 and that
strike has continued to date even though all but 15 striking employees
have either returned or offered to return, to work. Respondent conceded
in its brief that it has subcontracted work to T and C Stainless since
around November 1996. The initial charge herein was filed on January
6, 1999.
months prior to the filing of a charge. Respondent’s action in
subcontracting with T and C Stainless occurred more than 1-1/2
years before the earliest possible 10(b) date. I find that General
Counsel failed to prove that Respondent engaged in conduct in
violation of Section 8(a)(1) and (5).
CONCLUSIONS OF LAW
1. Paul Mueller Company is an employer engaged in com­
merce within the meaning of Section 2(6) and (7) of the Act.
2. Sheet Metal Workers International Association, Local Un­
ion No. 208, is a labor organization within the meaning of Sec­
tion 2(5) of the Act.
3. Respondent, by reducing James Hulse from master
craftsman and lowering Hulse’s pay, has engaged in conduct in
violation of Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor prac­
tices affecting commerce within the meaning of Section 2(6),
(7), and (8) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
As I have found that Respondent has unlawfully reduced
James Hulse from master craftsman and reduced his pay, in
violation of sections of the Act, I shall order Respondents to
immediately rescind all Hulse’s unlawful reduction in pay and
grade, to remove all reference to those unlawful reduction in
pay and grade from its records and notify Hulse in writing that
has been done; and to make Hulse whole for all loss of earnings
suffered as a result of the discrimination against him. Backpay
shall be computed as described in Abilities & Goodwill, Inc.,
241 NLRB 27 (1979); and F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as described in New Horizons for the Re­
tarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]