Start Electric, Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1997

324 N.L.R.B. 1207 (N.L.R.B. 1997)

1207
324 NLRB No. 184
STARK ELECTRIC, INC.
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 The complaint alleges, inter alia, that the Respondent violated
Sec. 8(a)(3) and (1) by laying off employees Eric Wilburn, Dwayne
Pennington, and Michael Price. The judge correctly found that the
Respondent violated the Act by including these three employees in
a larger layoff intended to discourage union activity. NLRB v. Frigid
Storage, Inc., 934 F.2d 506, 510 (4th Cir. 1991) (‘‘Layoffs intended
to ‘discourage membership in any labor organization’ violate the
NLRA, even if the employer wields an undiscerning axe, and anti-
union employees suffer along with their pro-union counterparts’’).
3 The judge has in his recommended remedy incorrectly addressed
issues normally left to compliance. We modify the judge’s remedy
and recommended Order to provide the Board’s usual reinstatement
and make whole provisions. The Respondent may litigate appropriate
remedial issues at the compliance stage of the proceeding. See Dean
General Contractors, 285 NLRB 573 (1987).
Stark Electric, Inc. and International Brotherhood
of Electrical Workers, Local 317, AFL–CIO.
Case 9–CA–33933
November 7, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On April 29, 1997, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,1 and conclusions,2 and to adopt the rec-
ommended remedy as modified and the recommended
Order as modified.3
AMENDED REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that the Respondent discriminatorily
laid off Eric Wilburn, Dwayne Pennington, and Mi-
chael Price in May 1996, we shall order it to offer
them full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority rights or any
other rights or privileges previously enjoyed, and to
make them whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against them. Backpay shall be computed in the man-
ner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest computed as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Stark
Electric, Inc., Huntington, West Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the recommended Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Within 14 days from the date of this Order,
offer Eric Wilburn, Dwayne Pennington, and Michael
Price, full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.’’
2. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
‘‘(b) Make Eric Wilburn, Dwayne Pennington, and
Michael Price whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against them, in the manner set forth in the amended
remedy section of the Board’s decision.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT lay off or otherwise discriminate
against any of you for supporting Local 317 of the
International Brotherhood of Electrical Workers or any
other union.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT coercively disparage any union in a
manner that impliedly threatens employees who sup-
port the Union.
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.
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1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1996 unless otherwise indicated.
2 I accept Exh. R-3, which is a copy of Stark Electric’s payroll,
at face value. I credit this document over all contrary oral testimony
with regard to the dates of employment of Stark employees. How-
ever, I do not credit the calculations made by Karen Stark in colored
ink at the bottom of the sheets for the weeks ending May 18 through
June 15, with regards to the numbers of hours worked at the Lone
Star and Applebee’s restaurants. These calculations were apparently
made in preparation for this hearing and are in some respects inac-
curate. For example, my calculations of the hours worked for the
week ending June 1 are 109 hours at Lone Star and 154.5 at
Applebee’s.
WE WILL, within 14 days of the Board’s Order, offer
Eric Wilburn, Dwayne Pennington, and Michael Price,
full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
and privileges previously enjoyed.
WE WILL make Eric Wilburn, Dwayne Pennington,
and Michael Price whole for any loss of earnings and
other benefits suffered as a result of the action against
them, with interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the lay offs of Eric Wilburn, Dwayne Pennington, and
Michael Price, and WE WILL, within 3 days thereafter,
notify them in writing that this has been done and that
the lay offs will not be used against them in any way.
STARK ELECTRIC, INC.
Eric Oliver, Esq., for the General Counsel.
James W. St. Clair, Esq. (St. Clair and Levine), of Hunting-
ton, West Virginia, for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Huntington, West Virginia, on February 5, 1997.
The charge was filed June 3, 1996,1 and the complaint was
issued October 2, 1996.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, Stark Electric, Inc., a corporation, is an elec-
trical contractor with a headquarters office in Huntington,
West Virginia, where it annually purchases and receives
goods valued in excess of $50,000 directly from points out-
side of West Virginia. Respondent admits and I find that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is
a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that Respondent, through Bill
Stark, its principal shareholder and field supervisor, violated
Section 8(a)(1) in interrogating a job applicant about his
union sympathies, threatening employees by saying that he
would run ‘‘union guys’’ off his jobsites and making other
derogatory comments about union members. He also alleges
that Karen Stark, Bill Stark’s daughter, who is president and
office manager of Stark Electric, also interrogated an em-
ployee about union activity. Finally, the General Counsel al-
leges that Respondent violated Section 8(a)(1) and (3) by
laying off employees Michael Price, Eric Wilburn, and
Dwayne Pennington at the end of May because it knew or
suspected that they had engaged in union activity. For the
reasons stated below I find that Respondent violated the Act
as alleged.
Respondent’s work force expands during the spring
of 1996
Respondent is an electrical contractor which performs
work primarily at commercial sites in the tri-state area near
Huntington, West Virginia (West Virginia, Kentucky, and
Ohio). At the beginning of 1996, Stark Electric had only two
workmen on its payroll, Mike Hickman and Anthony Napier.
By the end of January it had five electricians; Hickman, Na-
pier, Terry Quintrell, Jim Downs, and Mark Childers.2 Ex-
cept for Napier, these five worked continuously for Stark at
least through the end of July. Napier last worked for Stark
on April 5. On April 1, Michael Mayo, who had worked for
Stark on and off since 1992, began working at the Hunting-
ton Blood Bank, a project that extended into June.
In mid-March, Respondent began work installing the wir-
ing and electrical fixtures at a Lone Star steakhouse in the
Huntington area. In mid-April, Stark began doing similar
work at an Applebee’s restaurant. These projects apparently
caused Stark to hire additional employees.
Michael Price began working for Respondent as an elec-
trician on April 9. He had been working previously in North
or South Carolina. When he called Respondent, Price told
Bill Stark that he wanted to move back to the Huntington
area. Stark initially assigned Price to work on the Lone Star
project. He was not told how long his employment would
last or that the length of his employment would depend on
the duration of particular projects.
Tim Stidham began working at Lone Star on April 15 and
Kyle Jackson worked there for part of 1 day, April 19. Dur-
ing the week of April 27, three new employees began work
for Stark; Joseph Gregory, Joel Stidham, and Joseph Rose.
Price did not work that week due to injuries sustained in an
automobile accident.
Price returned to work on April 29 and spent most of the
following week at the Applebee’s project. On May 3,
Dwayne Pennington also began working at Applebee’s. Joel
Stidham’s last day with Respondent was May 2, and Joseph
Gregory’s was April 29. On May 7, Eric Wilburn began
working for Respondent on the Blood Bank project. Like
many of Stark’s employees, he worked on other projects as
well. On Friday, May 10 and 11, John Sharkey, who also
had a job with another construction company, worked for
Stark at the Lone Star steakhouse. Neither Pennington nor
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1209STARK ELECTRIC, INC.
3 There is no evidence as to the subject of the argument.
4 Pennington testified that he wore an IBEW T-shirt to work the
previous workday. The record does not indicate whether Respondent
was aware of this when it laid him off.
5 Bill Stark, who was present at the hearing was not called by Re-
spondent as a witness. I credit Pennington’s testimony about these
statements in view of the fact that it is uncontradicted and consistent
with the testimony of Price and Wilburn. Michael Mayo did not tes-
tify about any derogatory comments made by Bill Stark regarding
the Union.
Wilburn were told how long they would be employed by Re-
spondent.
Respondent’s employees sign union authorization cards;
the Union sends Respondent a letter
After work, on May 14, Price and Pennington met with
Sherman Nicholas, the organizing coordinator for IBEW
Local No. 317 in a parking lot adjacent to the Applebee’s
project. The two electricians signed cards authorizing the
Union to represent them. While they were talking to Nich-
olas, Mike Hickman, another Stark electrician walked past
them.
Soon after leaving Price and Pennington, Nicholas wrote
the following letter to Bill Stark:
The purpose of this letter is to make you aware that
this office is assisting a group of your employees who
wish to organize and join the International Brotherhood
of Electrical Workers.
At no time will we attempt to disrupt your work nor
will we engage in any activities not protected under the
National Labor Relations Act.
Also, I would like to invite you to meet us to discuss
the benefits of being a Union contractor. If you would
like to talk to us concerning either of these matters, you
can contact myself or Business Manager, William Tay-
lor, at the above address and phone number. [G.C. Exh.
5.]
The size of Respondent’s work force contracts after the
union letter is received
Nicholas’ letter was received by Karen Stark on May 16.
That day Eric Wilburn signed an authorization card at the
Union hall. He also encouraged other employees to join the
Union. Sometime in May, Michael Mayo also signed a union
authorization card. Neither Price, Pennington, Wilburn, nor
Mayo informed Respondent that they had signed authoriza-
tion cards. There is no evidence that Stark knew which em-
ployees had signed the cards or were otherwise sympathetic
to the Union.
Friday, May 17, was the last day that Joseph Rose worked
for Stark. Friday, May 24, was the last day that Tim Stidham
and Eric Wilburn worked for Respondent. Both were work-
ing that day at the Lone Star project. Tim Stidham had a
heated argument with Bill Stark just before leaving the job-
site.3 A few hours later Stark approached Wilburn and told
him that his services were no longer needed.
John Sharkey did not work for Respondent during the
week of May 12–18. During the week of May 19–25, he
worked 27-1/2 hours at Lone Star. Saturday, May 25, was
the last day he worked for Stark. Jim Shope, who had not
worked for Stark previously, worked 8 hours per day, May
23–25.
May 27 was the last day that Michael Price and Dwayne
Pennington worked for Respondent. Bill Stark told Pen-
nington, who was on the Applebee’s project that day, that he
wasn’t happy with his work. Previously any comments he
made to Pennington about his work were complimentary.4
Price worked 6 hours on the Lone Star project on May 27.
Late in the afternoon Karen Stark told Price that Respondent
had no more work for him.
The number of hours worked by Respondent’s
electricians decreased markedly after May 25
Exhibit R-3 demonstrates that the number of hours worked
by Stark electricians decreased markedly after May 25. The
following is a summary of the hours of labor for which Re-
spondent’s employees were paid for electricians’ work for
the week ending May 4 to the week ending June 22:
Week Ending Regular Hours Overtime Hours
May 4 353.5 51
May 11 406.5 0
May 18 402.5 40.5
May 25 431 31
June 1 263.5 23
June 9 230 1.5
June 15 265 8.5
June 22 278 .5
Respondent hires Kevin Scaggs and Terry Hundley
after layoffs
Two days after Price and Pennington were laid off, a new
employee, Kevin Scaggs started working at Lone Star. Re-
spondent offered no evidence as to why it hired Scaggs at
this time. He continued to work full-time for Respondent at
least through the end of July. Jim Shope, who had a full-time
job with another company, worked 8 hours at Applebee’s on
June 1.
After laying off Price and Pennington and hiring Scaggs,
Respondent had six full-time electricians working for it.
These were the four employees who had been with Stark
since January (Hickman, Quintrell, Downs, and Childers),
Mayo who had worked for Stark in prior years and Scaggs.
No employee, other than Scaggs, who had been hired since
April 1 was still working for Respondent.
On June 11, Terry Hundley began working for Stark at the
Blood Bank project. He worked on several different Stark
projects through July 10.
Interrogation and derogatory comments about the Union
made by Respondent
During Dwayne Pennington’s preemployment interview,
Bill Stark asked him if he was a union member. Stark told
him about three or four union members who had brought a
camera with them when they filed employment applications.
Stark then asked Pennington, ‘‘you’re not one of those Union
bastards?’’5
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1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 I credit Wilburn’s testimony at Tr. 13 and 25 in this regard over
Karen Stark’s general denial at Tr. 118.
7 There is no evidence as to Respondent’s practices or procedures
regarding recalls.
8 Absent additional information I cannot infer, as suggested by the
General Counsel, that estimator Tim Dickson, electrician Jim Downs
and electrician Marc Childers worked at Applebee’s and Lone Star
after the layoff in order to enable Respondent to discharge possible
union supporters. In this regard I would note that prior to the layoff,
Dickson performed 8 hours of electrician’s work at Lone Star on
April 27 and another 8 hours on May 4. Downs worked 4 hours at
Applebee’s on April 13.
On a couple of occasions after Pennington started working,
Bill Stark asked him if he had seen Union Organizer Nich-
olas on the jobsite. One day Stark said he had to go to an-
other site because ‘‘that SOB Union organizer’’ was there.
When Stark returned he said he just missed Nicholas, but
would like to get his hands on him.
Eric Wilburn also heard Stark make derogatory comments
about the Union. Stark said Union men were lazy, that the
Union protected the lazy and that he wouldn’t have any
union members working for him. The Tuesday after he was
laid off Wilburn went to Respondent’s office to pick up his
check. When he asked Karen Stark whether there would be
work for him in the future, she replied, ‘‘Aren’t you one of
the ones that joined the Union.’’6
Michael Price heard Stark say on one occasion that the
Union SOBs had called the fire marshall and as a result he
had to send all the employees at Lone Star home. On another
occasion he heard Stark say that if caught the union SOBs
on the Lone Star job, he would run them off. Once while
Price and another employee were on a break, Stark drove by
and yelled that his job was not a union job and therefore em-
ployees were entitled to a 10-minute break, not 15 minutes.
Analysis
The lay offs of Eric Wilburn, Dwayne Pennington, and
Michael Price violated Section 8(a)(1) and (3)
In order to prove that an employer violated Section 8(a)(1)
and (3) in terminating or laying off an employee, the General
Counsel must show that union activity has been a substantial
factor in the Employer’s decision. Then the burden of per-
suasion shifts to the employer to prove its affirmative de-
fense that it would have taken the same action even if the
employee had not engaged in union or other protected activ-
ity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981).
To establish discriminatory motivation the General Coun-
sel generally must show union or other protected activity,
employer knowledge of that activity, animus, or hostility to-
wards that activity and an adverse personnel action. Infer-
ences of knowledge, animus, and discriminatory motivation
may be drawn from circumstantial evidence rather than from
direct evidence. However, when the dismissal of an em-
ployee is part of a larger layoff, made in whole or in part
to discourage union activity, the General Counsel does not
have to establish that the employer was aware of the union
sympathies of each of the terminated employees. Davis Su-
permarkets, 306 NLRB 426 (1992), enfd. 2 F.3d 1162, 1168
(D.C. Cir. 1993); Alliance Rubber Co., 286 NLRB 645, 647
(1987), NLRB v. Frigid Storage, Inc., 934 F.2d 506, 510 (4th
Cir. 1991). In Activ Industries, 277 NLRB 376 fn. 3 (1985),
the Board stated:
In adopting the judge’s conclusion that the Respondent
violated Sec. 8(a)(3) and (1) of the Act by terminating
10 employees, we emphasize that it is the Respondent’s
mass discharge, and not its selection of employees for
the discharge, that is unlawful. Accordingly, the Gen-
eral Counsel was not required to show a correlation be-
tween each employee’s union activity and his or her
discharge . . . Instead, the General Counsel’s burden
was to establish that the mass discharge was ordered to
discourage union activity or in retaliation for the pro-
tected activity of some.
While Respondent’s payroll records indicate a valid eco-
nomic reason for some layoffs at the end of May, the hiring
of Kevin Scaggs establishes that some others lacked eco-
nomic justification and were thus discriminatorily motivated.
Given the timing of the layoffs, the timing of Scaggs’ em-
ployment and the animus demonstrated by Bill Stark (and to
some extent Karen Stark) to the Union, I infer the decision
to layoff at least some of the newer employees was made to
thwart the Union’s organizational drive.
With the exception of Karen Stark’s remark to Wilburn,
there is no direct or circumstantial evidence from which I
can conclude that Respondent knew the identities of the em-
ployees favoring the Union. Although Dwayne Pennington
described Mike Hickman, the electrician who saw Pen-
nington and Price talking to organizer Nicholas, as a fore-
man, there is no substantial evidence that Hickman was a su-
pervisor or agent of Respondent. Similarly, although Pen-
nington wore a union T-shirt to work the day before he was
fired, there is no evidence that any supervisor saw him or
was told that he did so.
Further, I infer that Respondent’s failure to recall any of
the laid-off employees indicates antiunion motivation in de-
termining the size of the layoff.7 Eric Wilburn made his in-
terest in a recall clear to Karen Stark when he went to Re-
spondent’s office to pick up his last pay check. Respondent
has offered no valid business justification for hiring Scaggs
so soon after the layoffs, or hiring Terry Hundley 2 weeks’
later without inquiring whether any of its former employees
were interested in being recalled.8 Thus, I conclude that the
General Counsel has made a prima facie case of discrimina-
tion which the Respondent has not even attempted to rebut.
One cannot determine from the instant record, which of
the laid-off employees would have been retained if Respond-
ent’s layoff had been conducted in a nondiscriminatory man-
ner. That remains to be determined in the compliance stage
of this proceeding.
Respondent violated Section 8(a)(1) in interrogating
Dwayne Pennington about his union sympathies in his
preemployment interview and by making other
threatening or coercive remarks about the Union
Whether questions concerning an employee’s union mem-
bership are lawful depends on whether they tend to restrain
or interfere with the employee’s exercise of rights guaranteed
by the Act, Rossmore House, 269 NLRB 1176 (1984). Such
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1211STARK ELECTRIC, INC.
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
10 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.’’
inquiries made during a job interview, however, are inher-
ently coercive. Gilbertson Coal Co., 291 NLRB 344 (1988).
Further in the instant case Bill Stark’s inquiry to Dwayne
Pennington as to whether he was ‘‘one of those union bas-
tards’’ would be coercive in any context.
Similarly, Karen Stark’s inquiry, or observation, to Eric
Wilburn about his union sympathies is clearly coercive be-
cause it was made when he inquired about the possibilities
of more work. The other statements made by Bill Stark, dis-
paraging the Union and impliedly threatening union support-
ers, also tended to restrain, interfere or coerce employees
from exercising their Section 7 rights.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily laid off some of
its employees in May 1996, must make whole for any loss
of earnings and other benefits, those whom the Respondent
would not have laid off but for its discrimination against
them, including amounts they would have earned on other
jobs to which Respondent subsequently would have assigned
them. If it is shown at the compliance stage of this proceed-
ing that the Respondent, but for the discrimination, would
have assigned any of these discriminatees to present jobs, the
Respondent shall hire those individuals and place them in
positions substantially equivalent to those from which they
were laid off. Backpay shall be computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in 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 recommended9
ORDER
The Respondent, Stark Electric, Inc., Huntington, West
Virginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Firing, laying off, or otherwise discriminating in regard
to hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any
labor organization.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Coercively disparaging any union in a manner that
impliedly threatens employees who support the Union.
(d) 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) Make whole any of the following employees for any
losses they may have suffered by reason of Respondent’s dis-
criminatory layoff in May 1996, as determined in the compli-
ance stage of this proceeding. Offer those employees who
would currently be employed but for the Respondent’s un-
lawful layoff, employment in substantially equivalent posi-
tions to those they held prior to the layoff, without prejudice
to their seniority or any other rights or privileges to which
they would have been entitled if they had not been discrimi-
nated against by Respondent:
Eric Wilburn, Dwayne Pennington, and Michael Price.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful lay offs and no-
tify the employees in writing that this has been done and that
the lay offs will not be used against them in any way.
(c) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Within 14 days after service by the Region, post at its
Huntington, West Virginia office copies of the attached no-
tice marked ‘‘Appendix.’’10 Copies of the notice, on forms
provided by the Regional Director for Region 9, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since June 3, 1996.
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1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 See fn. 10, supra.
12 On April 4, 1997, the General Counsel filed a motion to reopen
the record in the instant matter and consolidate it for hearing with
Case 9–CA–33816. This motion is DENIED for the following rea-
sons. The General Counsel states that Case 9–CA–33816 involves a
charge filed by the Union on April 17, 1996, alleging the Respond-
ent refused to hire Sherman Nicholas and several other union mem-
bers on or about March 28, 1996. The Region notified the Union
on October 31, 1996, that it was declining to file a complaint with
regard to this charge and the Union appealed. The appeal was sus-
tained on March 26, 1997, after the hearing had been held and the
briefs filed in the instant case. Even though this case involves the
same parties and arguably related matters, I conclude that judicial
economy and administrative efficiency are not served by delaying
resolution of the instant matter. Moreover, since the Region, as of
the date on the instant hearing, deemed Case 9–CA–33816 to be un-
suitable for litigation, it would not be precluded by virtue of the
Board’s decision in Jefferson Chemical Co., 200 NLRB 992 (1972),
from litigating that complaint in a separate proceeding.
(e) Within 14 days after service by the Region, mail a
copy of the attached notice marked ‘‘Appendix’’11 to all em-
ployees who were employed by the Respondent as elec-
tricians at any time from April 9 through July 10, 1996. The
notice shall be mailed to the last known address of each of
the employees after being signed by the Respondent’s au-
thorized representative.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.12
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 01212 Fmt 0610 Sfmt 0610 D:\NLRB\324.142 APPS10 PsN: APPS10