Van Vlerah Mechanical

National Labor Relations Board - Board Decisions

Jan 31, 1996

320 N.L.R.B. 739 (N.L.R.B. 1996)

739
320 NLRB No. 3
VAN VLERAH MECHANICAL
1 On September 14, 1995, the judge issued the attached decision.
The Respondent filed exceptions and a supporting brief. The General
Counsel filed exceptions, a supporting brief, and a brief in support
of the judge’s decision.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 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.
3 We find merit in the General Counsel’s exceptions to the judge’s
failure to include certain remedial provisions in the recommended
Order and notice relating to the unlawful discharge of employee
Arden Reust. We shall modify the Order and substitute a new notice
including these provisions.
Van Vlerah Mechanical, Inc. and Plumbers and
Steamfitters Local Union No. 166, a/w United
Association of Journeymen and Apprentices of
the Plumbing & Pipefitting Industry of the
United States & Canada, AFL–CIO. Case 25–
CA–22810
January 31, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The question presented here is whether Administra-
tive Law Judge Jesse Kleiman correctly found that the
Respondent committed several violations of Section
8(a)(1) of the Act and discharged an employee in vio-
lation of Section 8(a)(3) and (1) of the Act.1
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 and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Van
Vlerah Mechanical, Inc., Angola, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 1(e) and reletter
the subsequent paragraph.
‘‘(e) Discharging or otherwise disciplining employ-
ees because they refuse to abandon their support for
the Union, or any other labor organization.’’
2. 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 interrogate our employees concerning
their union membership, activities, and sympathies.
WE WILL NOT promise our employees improved
wages and benefits to reject the Union, or any other
labor organization, as their bargaining representative.
WE WILL NOT solicit our employees to abandon their
support for the Union or any other labor organization.
WE WILL NOT threaten our employees with dis-
charge if they assist their Union in enforcing the col-
lective-bargaining agreement.
WE WILL NOT discharge or otherwise discipline our
employees because they refuse to abandon their sup-
port for the Union, or any other labor organization.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL offer Arden Reust immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed and WE WILL make him whole for
any loss of earnings and other benefits resulting from
his discharge, less any net interim earnings, plus inter-
est.
WE WILL remove from our files any reference to the
discharge of Arden Reust and notify him in writing
that this has been done and that the discharge will not
be used against him in any way.
VAN VLERAH MECHANICAL, INC.
Merrie Thompson, Esq., for the General Counsel.
Arthur E. Mandelbaum, Esq. (Miller, Carson, Boxberger &
Murphy), for the Respondent.
Mark Richards, Business Manager for the Charging Party.
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. On the basis
of a charge and amended charge filed on October 18, 1998,
and January 31, 1994, respectively by Plumbers and Steam-
fitters Local Union No. 166, a/w United Association of Jour-
neymen and Apprentices of the Plumbing & Pipefitting In-
dustry of the United States & Canada, AFL–CIO (Plumbers
Local 166), a complaint and notice of hearing was issued on
January 31, 1994, against Van Vlerah Mechanical, Inc. (the
Respondent), alleging that the Respondent had engaged in
certain unfair labor practices within the meaning of Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act). On September 20, 1994, the complaint was amended
to allege an additional violation of Section 8(a)(1) of the Act.
The Respondent’s answers denied the material allegations in
the complaint and amended complaint.
A hearing was held before me on October 11 and 12,
1994, in Angola, Indiana. Subsequent to the closing of the
hearing, the General Counsel and the Respondent filed briefs.
On the entire record and the briefs of the parties, and on
my observation of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, at all times material, is and has been a
corporation with an office and place of business in Angola,
Indiana, engaged in the building and construction industry as
a mechanical contractor. The Respondent annually in the
conduct of its business operations purchased and received at
its Angola, Indiana facility goods valued in excess of
$50,000 directly from points outside the State of Indiana. I,
therefore, find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Plumbers and Steamfitters Local Union No. 166, a/w
United Association of Journeymen and Apprentices of the
Plumbing & Pipefitting Industry of the United States & Can-
ada, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint and amendments thereto allege, in sub-
stance, that the Respondent violated Section 8(a)(1) and (3)
of the Act by unlawfully interrogating its employees about
their union membership, activities, and sympathies and those
of other employees, promised employees improved benefits
and wages to reject the Union as their bargaining representa-
tive, solicited its employees to abandon their support for the
Union, telephonically threatened its employees with dis-
charge if they assisted the Union in enforcing the collective-
bargaining agreement, and discharged employee Arden Reust
because of his union activities. The Respondent denies these
allegations.
A. The Evidence
The Respondent, a heating and air-conditioning contractor,
performs work at various jobsites in Indiana and Ohio, em-
ploying plumbers, welders, and sheet metal workers. The Re-
spondent is owned by its president, Karen Van Vlerah (51
percent) and James Van Vlerah Jr. (Van Vlerah) its vice
president (49 percent). The Respondent is and has been a
party to collective-bargaining agreements with three unions:
the Union, as Charging Party (Plumbers Local 166) out of
Fort Wayne, Indiana, whose jurisdiction lies within Indiana;
United Association Local No. 50 Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the United
States and Canada (Plumbers Local 50) out of Toledo, Ohio,
whose jurisdiction is within Ohio; and Local No. 20 of the
Sheet metal Workers International Association (Sheet metal
Local 20) out of Fort Wayne, Indiana. The Respondent’s em-
ployees are members of the above unions based on their
trade and location. James Van Vlerah Jr. is a member of
Plumbers Local 50.
As one of its work projects in September 1993, the Re-
spondent was installing a heating and air-conditioning system
in an existing high school and a new addition to the school
in Pioneer, Ohio (the Pioneer Job). Since this jobsite was in
Ohio, the territorial jurisdiction of Plumbers Local 50, and
the Respondent is based in Indiana, the Respondent was uti-
lizing plumbers on the jobsite from both Plumbers Local 166
and Plumbers Local 50. According to the testimony here, the
Respondent believed that it had a verbal agreement with
these two Plumbers Union locals allowing the Respondent to
employ members of both these unions within each others ter-
ritory where the nonavailability of workers necessitated this.
However, starting in August 1993, Bill Flowers, the busi-
ness agent for Plumbers Local 50, started checking into the
union membership of the Respondent’s employees on the
Pioneer Job. On or about September 2, 1993, while visiting
the construction site, Flowers found that of the three employ-
ees on the job, Arden Reust, the working foreman, Hal
DeTray and Bill Haines, Reust and Haines were members of
Plumbers Local 166 and DeTray was a Plumbers Local 50
member. Flowers questioned Haines’ right to work on the
Pioneer Job and denied the existence of any agreement be-
tween the Respondent and Plumbers Locals 166 and 50
which would allow Plumbers Local 166 members to work at
this jobsite. While allowing Haines to finish his work that
day, Flowers warned Haines that he could not work on the
Pioneer Job thereafter. Additionally, Flowers ordered DeTray
to report to him any member of Plumbers Local 166 sent to
work on the Pioneer Job and then Flowers left the site.
Reust now called Van Vlerah at the Respondent’s shop
and advised him as to what had occurred between Flowers
and these employees. According to Reust, Van Vlerah then
said, ‘‘You tell Hal [DeTray] to keep his mouth shut. If there
is any phone calls made, that he’ll get his money and won’t
work for Van Vlerah Mechanical again.’’ After Reust re-
marked that this was not right, Van Vlerah stated, ‘‘It’s not
right . . . . I’m tired of getting it from the men, not wanting
to do this job and not wanting to do that job. And I’m get-
ting sick and tired of it. If it keeps up, I’m going to get rid
of everybody and go hire guys off the street and get it done
non-union.’’
Reust told DeTray and Haines what Van Vlerah had said
about DeTray being fired if he reported any Plumbers Local
741VAN VLERAH MECHANICAL
1 On cross-examination, Jaquay’s testimony concerning this
appeard evasive and equivocal.
2 Again, James Van Vlerah was not called to refute La Bundy’s
above testimony, even though he was present throughout the hearing.
La Bundy also testified that he notifed Plumbers Local 166 business
manager, Mark Richards, about Van Vlerah’s remark concerning the
Respondent going nonunion.
3 As indicated here before, James Van Vlerah, although present
throughout the hearing and having testified earlier, did not deny
making these statements.
166 members working on the Pioneer Job site to Flowers,
and that Haines should not quit working on the jobsite nor
be concerned about Flowers and Plumbers Local 50. The tes-
timony of DeTray and Haines support that of Reust as to
what Reust told them Van Vlerah had said concerning this
incident. Moreover, Van Vlerah did not deny making any of
the statements attributed to him, notwithstanding his being
present throughout the hearing to assist the Respondent’s
counsel and having also testified here, although prior to their
testimony.
Additionally, a problem had developed regarding the ap-
prenticeship status of employee Pierre Jaquay, one of the
first employees of Van Vlerah Mechanical, Inc. and a close
personal friend of James Van Vlerah Jr. In September 1993,
Jaquay was enrolled in the apprenticeship program requiring
on-the-job-training (OJT). Evaluations of such training were
to be reported to the Joint Apprenticeship Committee (JAC),
which administered the program, on OJT cards or forms
signed by Jaquay’s supervisor. Leonard La Bundy, the JAC
director of training, had discovered that Jaquay was signing
his own evaluation forms, a possible violation of apprentice-
ship standards, and therefore he met with Jaquay on Septem-
ber 9, 1993, to discuss this matter. La Bundy testified that
Jaquay explained that he was the only one who could sign
his OJT cards because he was a superintendent and the other
employees worked under him. It appears that Jaquay never
related to Van Vlerah what he told La Bundy at his meet-
ing.1
Be that as it may, on September 14, 1993, La Bundy re-
ceived a telephone call from James Van Vlerah Jr. who
‘‘forcefully’’ inquired why JAC was ‘‘trying to screw over’’
Jaquay who was a fine apprentice. Van Vlerah said that the
local union regularly sent him ‘‘duds and crap,’’ but La
Bundy advised him to take that up with the union since JAC
had nothing to do with the referral procedure. Also in this
connection, Van Vlerah told La Bundy that ‘‘if the contrac-
tors were going to screw over Pierre, that he would have to
consider going non-union.’’ La Bundy again told Van Vlerah
that he would have to speak to the union about this.2
That same day, James Van Vlerah called Mark Richards,
Plumbers Local 166 business manager, and discussed, among
other things, the problem of Jaquay’s apprenticeship status
which could affect the Union’s ability to refer him to the Re-
spondent or any other employer for work. Richards testified
that he and Van Vlerah had had prior conversations ‘‘where
[Van Vlerah] has entertained the idea of working non-union,
that—what benefit does he get out of the union, and things
of that nature, yes,’’ but Richards acknowledged that Van
Vlerah never indicated that he was taking steps to accom-
plish this.
The evidence here also shows that on September 16, 1993,
another incident occurred involving Plumbers Local 50 Busi-
ness Agent Flowers and a Plumbers Local 166 member em-
ployee of the Respondent on the Pioneer Job, an employee
named Randy Morin. Flowers compelled Morin to leave the
jobsite and admonished DeTray and Reust about Morin
working there. When Morin returned to the shop and advised
Van Vlerah as to what had occurred, Van Vlerah remarked
that Flowers was exceeding his authority. It appears from the
record that the Respondent was very unhappy about Flowers’
‘‘harass[ing] our people.’’
The Respondent makes payments to various union pension
funds for employee union members, the National Pension
Fund, the Pipe Trades, Plumbers Local 166 Pension Fund,
the JAC Fund, and the Industry Fund. The record discloses
that the total amount paid for just the Respondent’s Plumbers
Local 166 employees’ benefits in 1993 from January through
September of that year was $79,461.14. The Respondent also
has pension fund costs for its Plumbers Local 50 employees
who receive higher benefits then Plumbers Local 166 mem-
bers, and Sheet Metal Workers Local 20 members whose
benefits are lower.
On September 20, 1993, La Bundy sent a letter to Jaquay
notifying him to appear before the Joint Apprenticeship
Committee on September 28, 1993, regarding his apprentice-
ship status.
On or about Tuesday, September 21, 1993, Reust returned
to the shop after work. He was in the fab shop alone when
James Van Vlerah approached him and said that the Union
was picking on Jaquay again, and remarked that the Re-
spondent had just given the Union another $60,000 in benefit
payments. Van Vlerah then asked Reust, ‘‘What would you
do if I offered you $80,000 to go non-union?’’ Reust who
makes about $45,000 per year, kind of laughed at that. Van
Vlerah then said, ‘‘No, stop and think about it. What has the
Union ever done for you?’’ Reust replied that the Union had
gotten him a job when he needed one and that he would not
be making the money he was making nor receive the benefits
he was getting without the Union. Van Vlerah stated that he
had talked to Mark Richards from Plumbers Local 166 and
Dave La Plant, business manager for Plumbers Local 50, and
that they had said the only thing the Unions had to offer was
manpower and Reust responded that he did not believe that.
Van Vlerah told Reust, ‘‘If I didn’t have to pay $60,000, I
could take that, keep that, pay you $80,000, plus more bene-
fits. You’d be happy and I’d be happy.’’ Reust registered
skepticism about this but Van Vlerah responded, ‘‘I could do
that, because all I need is two or three good men and I’d
hire guys off the street, pay them less, and all you’d have
to do is whip them. You’d make more money, I’d make
more money, and we’d all be happy.’’ Reust said that he did
not see how this was possible and started to leave when Van
Vlerah remarked, ‘‘Well, it’s going to happen. Not real soon,
but I will go non-union.’’ Reust again replied that this would
not happen and then left the shop.3
The next day, Reust told some of the other employees at
the Pioneer Job site what Van Vlerah had offered him.
DeTray testified that Reust told him and two or three other
employees about the $80,000 offer made to him by Van
Vlerah to go nonunion plus benefits which DeTray thought
‘‘just didn’t really make sense to me.’’ However, DeTray
also stated that in his opinion, Reust ‘‘really felt like [Van
Vlerah] was serious about it.’’
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Reust was a union steward approximately from 1990 through
1992.
5 Van Vlerah specifically recalled; that Reust had wrongly piped
a three-way valve in the boilerroom at the Steuben Community Cen-
ter in 1991 or 1992; Reust refused to take a job in Wesona, Ohio,
in 1990, which caused a reshuffling of employees and disruption of
the work force on other projects; Reust did not want to work on a
job in Freemont, Indiana, in 1991 or 1992 which resulted in a less
experienced employee being assigned to perform the work; a year
after Reust started working for the Respondent, Reust and another
employee were at Bunde tubing in Ashley, Ohio, on an airline job
and Reust failed to follow Van Vlerah’s instructions regarding who
was to perform which work thus requiring Van Vlerah to work on
the site to finish the job on time as specified in the Respondent’s
bid.
On September 28, 1993, Jaquay met with JAC and was
questioned about his position and duties with the Respond-
ent. While at first Jaquay testified that he had not told JAC
why he did not have an employee other than himself sign his
‘‘OJT cards,’’ he did admit that he told JAC that he was a
‘‘superintendent.’’ No determination was made at this meet-
ing regarding his apprenticeship status, but Jaquay testified
that he was now left with the impression that there was a
possibility that he could be dismissed from the apprentice-
ship program.
Thereafter, Jaquay’s OJT cards were returned to the Re-
spondent and were then signed by James Van Vlerah Jr. as
Jaquay’s supervisor and sent back to JAC. Jacquay reported
to Van Vlerah what had transpired at the JAC meeting and
Van Vlerah was very unhappy about this turn of events. On
September 30, 1993, Van Vlerah faxed La Bundy a descrip-
tion of Jacquay’s duties and position with the Respondent
and in October 1993 JAC determined that Jaquay should be
allowed to continue in the apprenticeship program.
The discharge of Arden Reust
Arden Reust commenced his employment with the Re-
spondent in October 1987 as a plumber and steamfitter and
was considered by James Van Vlerah Jr. to be a key em-
ployee, reliable, and a hard worker and that he did a good
job 99 percent of the time on installations. Reust was granted
the use of a company truck which he could drive home after
work because of his good general attitude and performance.
In May 1992 Reust was promoted to working foreman and
was always paid a foreman’s wage even when he was on
jobs with less than three employees wherein the Respondent
would not have been obligated to do so.4 Prior to September
1993 and during the 6 years of his employment with the Re-
spondent, Reust had never received any discipline whatso-
ever.
However, despite the above, James Van Vlerah testified
that ‘‘over the course of years,’’ there were problems with
Reust on jobs ‘‘that are most likely not noteworthy of mak-
ing written records of. Just piping practices that were wrong,
piping of equipment that was wrong that was clearly shown
on blueprints that were not followed. Things of that nature.
Some, in general, poor judgment calls at times.’’5
Sometime in early September 1993, the engine of the com-
pany truck that Reust was driving ‘‘blew up.’’ James Van
Vlerah Jr. testified that Reust was responsible for this since
the repair shop mechanics had told him that whoever drove
the truck had driven ‘‘it into the ground’’ and deliberately
abused the vehicle. However, in an affidavit given to a Board
agent during the investigative stage of these proceedings,
Van Vlerah had stated that while Reust had blown up the en-
gine, the reason the mechanics believed it was deliberate was
because the person driving the truck would have had to have
heard the engine pounding and Van Vlerah explained to them
that Reust had a severe hearing problem, which appears to
me to imply that Van Vlerah did not feel that Reust was in-
tentionally at fault. Moreover, Reust received no discipline
regarding this incident.
After the Respondent’s truck that Reust drove was dis-
abled, Reust used his personal vehicle for work and filled its
tank with gas from the Respondent’s shop about once a
week. This occurred in early September 1993 and Reust re-
corded on a sheet by the gas tank the quantity of gas taken
and the vehicle being used. Reust testified that on one occa-
sion when he had taken gas at the shop, Van Vlerah was
nearby and observed him doing so without objection. Some-
time in late September 1993, Van Vlerah approached Reust
and told him that he could no longer use company gas in his
personal vehicle. However, according to Reust, Van Vlerah
had previously given him permission to use the Respondent’s
gas when he drove the company truck and was hauling mate-
rial or equipment to and from a jobsite. Reust maintained
that he had done this before and continued this practice in
his personal vehicle when the company truck he drove was
damaged. Additionally, when Van Vlerah was asked at the
hearing if Reust had ever been verbally disciplined for using
company property or materials, he responded, ‘‘Not to my
knowledge.’’ Van Vlerah also acknowledged that over the
course of Reust’s employment he could have allowed him to
take a tank of gas ‘‘here and there’’ in his personal vehicle
for company use, but not on a regular routine basis.
Also, on September 16, 1993, safety inspectors from the
Ohio Bureau of Workers’ Compensation, Division of Safety
& Hygiene visited the Pioneer Jobsite and advised Reust, the
foreman on the job, that some acetylene tanks were laying
about unsecured as required by safety regulations. Reust then
secured these tanks upright while the inspectors were still
there, and then notified Van Vlerah of this. Reust received
no discipline for this incident even though the violation
could have resulted in fines against the Respondent, and even
though it was Reust’s responsibility as working foreman to
make sure safety measures were taken. On Van Vlerah’s visit
to the Pioneer Jobsite on September 24, 1993, he observed
the same acetylene tanks lying unsecured. Van Vlerah point-
ed this out to Reust who said he would take care of it and
then gave Reust a verbal warning about this.
As part of the Pioneer Job, the Respondent was required
to complete a tie-in of an existing underground gasline to the
newly constructed addition to the Pioneer school into which
the heating system was being installed. In order to complete
this tie-in, the gas to the existing building, where the school
was in session, had to be shut off at 12:30 p.m. on Septem-
ber 29, 1993, and turned back on at 9:30 a.m. on September
30, 1993, the latter being necessary in order to comply with
the Ohio State Code requiring heat and hot water availability
while the school was open and students were in attendance.
Reust, as working foreman on the Pioneer Job with respon-
sibility for accomplishing the tie-in was made aware of the
time and date scheduling requirements.
743VAN VLERAH MECHANICAL
6 While Kirkwood testified that he arrived at the Pioneer Job site
at 1 or 1:30 p.m., and it was then that he first learned about the gas
pipeline problem, Jaquay testified that Kirkwood had told James Van
Vlerah Jr. later that day that he had found out about this problem
at ‘‘roughly, let’s say, 11:00 o’clock.’’
7 Although James Van Vlerah testified that the employees were di-
rected not to take orders from Tank, both Kirkwood and Reust seem
to have done so, since Ed Kisten, the Pioneer school’s representative
overseeing the construction of the new school building was not
available. Kirkwood testified that the believed Tank had authority to
make some decisions.
On September 29, 1993, a rainy Wednesday, the gas was
turned off at 12:30 p.m. as scheduled, and Reust and another
welder made the tie-in. The gas pipe was welded at two
spots and a chart recorder was hooked up to the gasline to
test whether the tie-in was successfully completed without
any leaks occurring. The gas company requires that this test
run for 2 hours, at a steady 10 pounds of pressure, before
the gas would be turned on and allowed to run through the
new pipe. After the new pipe was installed, Reust turned on
the chart recorder and since the pressure seemed to be hold-
ing steady he left the Pioneer Job site for home. James Van
Vlerah Jr. called Reust while he was driving home and in-
quired about the status of the pipeline tie-in and Reust re-
ported that it was ‘‘fine, the test was on, and we’d know in
the morning.’’
The following morning, Thursday, September 30, 1993,
Reust returned to the Pioneer Job site at 7 a.m. and discov-
ered that the test pressure in the new line had dropped indi-
cating a leak somewhere in the pipeline. Reust then pro-
ceeded to find the leak in the line by pumping the air pres-
sure up. Although he found and repaired a leaking joint and
then had DeTray fix a weld that was also leaking, still the
test indicated the presence of a leak. Also finding that the
gas company’s meter had a bad compression fitting, he had
the gas company install a new one and at about 2:40 p.m.
when the test pressure appeared to be holding steady he left
the Pioneer Job site at 3:30 p.m., his usual quitting time.
On his way home Reust stopped off at the Respondent’s
shop and finding Jaquay and some other employees present
there, Reust gave Jaquay the defective meter fitting and ex-
plained that it had been leaking. While Jaquay denied that
this occurred he acknowledged that he was present at the Re-
spondent’s facility during the afternoon of September 30,
1993. Reust also testified that he then went into Karen Van
Vlerah’s office and told her about the problem they were ex-
periencing at the Pioneer Job site regarding the tie-in of the
gas pipeline. Reust stated that Karen Van Vlerah said that
she understood and Reust then left for home, Karen Van
Vlerah denied that she ever had such a conversation with
Reust.
On Friday morning, October 1, 1993, Reust and DeTray
returned to the Pioneer Job site at 7 a.m. and found that the
pressure had dropped in the pipeline. It was such a ‘‘dra-
matic’’ drop that it appeared to them that someone might
have tampered with the chart recorder or the pipeline itself.
Reust showed the chart to school superintendent, Charles
Tank, who was present on the site and, after repeating the
test, Tank told them to stay there and watch it for 2 hours
to make sure nobody tampers with it. After about an hour
and 15 minutes, the pressure dropped again and Reust ad-
vised the gas company representative who came to the site
that there was something wrong with the chart recorder. The
gas company obtained another recorder which was placed on
the pipeline, this occurring about 11:00 a.m. that day.
According to Reust, at about the same time, around 11
a.m., the Respondent’s sheet metal estimator, Tom Kirk-
wood, who had designed the heating and air-conditioning
system and supervised its installation, ‘‘mainly the
sheetmetal, and some pipefitting work,’’ arrived at the Pio-
neer Job site.6 Reust explained the problem to Kirkwood,
they put on a new test and Kirkwood suggested that they
then go to lunch. On their return they discovered that the
pressure had dropped again. Kirkwood and Reust cut the new
part of the pipeline off from the old line, capped the old
pipeline and found, after testing it, that the leak was appar-
ently occurring in the old existing gas pipeline which was
mostly buried underground.
After discussing this with Tank who told them that the
school did not want to have to excavate the old pipeline to
fix the leak and did not want the new line placed under-
ground because of already buried telephone lines, data ca-
bles, etc., Kirkwood and Reust determined to run the new
pipeline over the roof of the existing building, which would
require additional material not then present on the jobsite.
Since Tank also told them that they should do whatever it
takes to get the gas line connected by the following Monday,
Reust asked the Respondent’s other employees on the site if
they could come in on Saturday, October 2, 1993, to work
on the pipeline, and Kirkwood called Karen Van Vlerah at
the office to obtain the necessary materials needed and to be
ordered.7
Reust then drove Kirkwood back to the shop whereupon
Kirkwood and Jaquay left to return to the Pioneer Job to un-
load a delivery of gas pipe at the site arranged by Karen Van
Vlerah. Meantime, Reust showed Karen Van Vlerah the re-
corder charts showing the drop in pressure indicating a gas
leak. Karen Van Vlerah asked Reust if he wanted to work
overtime that evening on a toll road job and Reust responded
that since he would have to work overtime the next day (Sat-
urday) on the Pioneer Job, he would pass this up. Reust then
went home. On the way home Reust called Jaquay suggest-
ing that they might need another welding machine at the Pio-
neer site for the next day. When Van Vlerah’s voice came
over the radio and stated that the job would have to be done
with what they had at the site.
In the late afternoon of that Friday, James Van Vlerah Jr.
appeared at the Pioneer Job site to see for himself what the
problem was. When Kirkwood and Jaquay arrived at the site
they found Van Vlerah upset and very angry. He started
yelling at Kirkwood and Jaquay and asked why the gas pipe-
line had not been turned on and the heating system running
and Kirkwood tried to explain about the pipeline leak and
that Reust had been trying to locate it in order to repair it
for the prior 2 days. Van Vlerah stated that if he had been
apprised of the problem 2 days ago he could have come to
the Pioneer Job and ‘‘gotten it done properly.’’ Kirkwood
testified that later that evening Van Vlerah called him at
home and apologized for being upset with him and told him
that he had fired Reust.
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Moreover, DeTray was still employed by the Respondent at the
time of the hearing and his testimony, apparently adverse to the Re-
spondent and corroborative of that of Reust is entitled to additional
weight. Shop-Rite Supermarket, 231 NLRB 500 (1977).
Earlier that same evening, at about 6:45 p.m. James Van
Vlerah Jr., who was then present on the Pioneer Job site,
called Reust at home and told Reust that he should not come
to work the next day, in fact not to come to work for the
Respondent ever again. Reust asked Van Vlerah what he was
talking about and Van Vlerah told him that Reust had ‘‘let
him down, I just can’t depend on you anymore.’’ Van Vlerah
referred to the gasline not being operational when required
and Reust asked if Karen Van Vlerah had told him about the
problem they had been experiencing with the gas pipeline
leak at the Pioneer Job and shown him the recorder chart ev-
idencing this problem. After Van Vlerah denied being aware
of the problem or having seen the ‘‘fitting’’ and the ‘‘chart,’’
Reust remarked that Karen Van Vlerah should have made
him aware of the problem. Van Vlerah told Reust that they
would discuss this on his return from vacation which was to
start next week and Reust replied that he was going on vaca-
tion the week after that. However, no such conversation be-
tween Reust and Van Vlerah ever took place thereafter.
James Van Vlerah Jr. did not testify about this conversa-
tion with Reust. Instead, the Respondent offered the testi-
mony of Jaquay who was positioned near Van Vlerah when
he called Reust and overheard what Van Vlerah had said into
the phone. According to Jaquay, Van Vlerah asked Reust
what he had done for 2 days regarding the pipeline tie-in and
then said, ‘‘You watched a chart recorder for two days?’’
and ‘‘Why didn’t you tell me?’’ Van Vlerah told Reust not
to appear at the Pioneer Job site on Saturday and then said
that Reust did not have to return to work anymore at all. Van
Vlerah ended the conversation by telling Reust that he was
going on vacation the very next week.
The gas pipeline tie-in was completed on Saturday, Octo-
ber 2, 1993. The Respondent was required to pay its eight
employees who worked that day on the Pioneer Job overtime
and then based on the hours worked, double time. The Pio-
neer school board refused to pay the overtime and double
time amounts since it took the position that the work re-
quired should have been performed and completed during
regular working hours.
Additionally, according to the testimony of Karen Van
Vlerah approximately one-third of the Respondent’s work is
derived from work done at the General Motors plant in Defi-
ance, Ohio, under a contract requiring union laborers, aggre-
gating approximately $1 million in income per year for the
Respondent.
B. Analysis and Conclusions
The resolution of the issues presented in this case requires
some determination as to the credibility of the respective wit-
nesses here. After carefully considering the record evidence,
I have based my findings on my observation of the demeanor
of the witnesses, the weight of the respective evidence, estab-
lished and admitted facts, inherent probabilities, and reason-
able inferences which may be drawn from the record as a
whole. Gold Standard Enterprises, 234 NLRB 618 (1978);
V & W Castings, 231 NLRB 912 (1977); Northridge Knit-
ting Mills, 223 NLRB 230 (1976). I tend to credit the ac-
count of what occurred herein as given by the General Coun-
sel’s witnesses other than James Van Vlerah Jr. Their testi-
mony was given in a forthright manner, and was generally
corroborative and consistent with each others,8 while that
given by some of the Respondent’s witnesses contained in-
consistencies, was evasive at times and contradicted each
others. However, this is not to say that I discredited all of
the testimony of Van Vlerah and that of the Respondent’s
witnesses as will be more particularly set forth hereinafter.
The 8(a)(1) violations
Section 8(a)(1) of the Act provides that it shall be an un-
fair labor practice for an employer to interfere with, restrain,
or coerce employees in the exercise of their statutory right
to engage in, or refrain from engaging in, concerted activity.
This provision is modified, however, by Section 8(c) of the
Act, which defines and implements the first amendment right
of free speech in the context of labor relations. NLRB v.
Four Winds Industries, 530 F.2d 75 (9th Cir. 1969). Section
8(c) permits employers to express ‘‘any views, arguments or
opinions’’ concerning union representation without running
afoul of Section 8(a)(1) of the Act if the expression ‘‘con-
tains no threat of reprisal or force or promise of benefit.
NLRB v. Marine World USA, 611 F.2d 1274 (9th Cir. 1980);
NLRB v. Raytheon Co., 445 F.2d 272 (9th Cir. 1971). The
employer is also free to express opinions or make pre-
dictions, reasonably based in fact, about the possible effects
of unionization on its company. NLRB v. Gissel Packing Co.,
395 U.S. 575, 618 (1969). In determining whether questioned
statements are permissible under Section 8(c), the statements
must be considered in the context in which they were made
and in view of the totality of the employer’s conduct. NLRB
v. Marine World USA, supra; NLRB v. Lenkurt Electric Co.,
438 F.2d 1102 (9th Cir. 1971). Also recognized must be the
economically dependent relationship of the employees to the
employer and the necessary tendency of the former, because
of the relationship, to pick up intended implications of the
latter that might be more readily dismissed by a more disin-
terested ear. NLRB v. Gissel Packing Co., supra at 617;
NLRB v. Marine World USA, supra.
1. Threats
The amended complaint alleges that the Respondent tele-
phonically threatened its employees with discharge if they
assisted the Union in enforcing the collective-bargaining
agreement in violation of Section 8(a)(1) of the Act. The Re-
spondent denies this allegation.
Reust credibly testified that when he called Van Vlerah on
or about September 2, 1993, to inform him that Plumbers
Local 50 Representative Flowers had instructed DeTray to
report to his Union any Local 166 members working on the
Pioneer School site, Van Vlerah told him to advise DeTray
that if he did so he would be fired. The testimony of DeTray,
Haines, and Morin tend to support Reust’s version of this
conversation. I therefore find and conclude that the Respond-
ent thereby violated Section 8(a)(1) of the Act when Van
Vlerah made the unlawful threat to fire DeTray since it tend-
ed to restrain and coerce employees in the exercise of their
Section 7 rights. Gold Shield Security, 306 NLRB 20 (1992).
745VAN VLERAH MECHANICAL
9 An employer cannot simply present a legitimate reason for its ac-
tions but must persuade by a preponderance of the evidence that the
same action would have taken place even in the absence of the pro-
tected conduct. T & J Trucking Co., 316 NLRB 771 (1995); GSX
Corp. v. NLRB, 918 F.2d 1351 (8th Cir. 1990).
2. Other alleged 8(a)(1) violations
The complaint herein alleges that the Respondent violated
Section 8(a)(1) of the Act: by interrogating its employees
about their union membership, activities, and sympathies and
those of other employees; promised its employees that their
benefits and wages would improve if the employees rejected
the Union as their bargaining representative; and solicited its
employees to abandon their support for the Union. The Re-
spondent denies these allegations.
According to the testimony of Reust, which I credit, dur-
ing a conversation between he and James Van Vlerah Jr. in
the Respondent’s shop in late September 1993, Van Vlerah
offered Reust a substantial increase in salary and additional
benefits if he, in effect, would abandon his support for the
Union. When Reust laughed at the offer, Van Vlerah asked
him what the Union had ever done for him and after Reust
enumerated instances of the Union’s support, Van Vlerah
then renewed his offer to Reust to reject the Union and assist
the Respondent in ridding itself of the Union.
In Rossmore House, 269 NLRB 1176 (1984), affd. 760
F.2d 1006 (9th Cir. 1985), the Board reiterated the basic test
for evaluating whether interrogations violate Section 8(a)(1)
of the Act established in Blue Flash Express, 109 NLRB 591
(1954); whether under all the circumstances the interrogation
reasonably tends to restrain, coerce, or interfere with rights
guaranteed by the Act. The Board then stated in Rossmore
House, supra at 117:
Our view is consonant with that expressed by the
Seventh Circuit, Court of Appeals in Midwest Stock Ex-
change v. NLRB, [635 F.2d 1255, 1267 (7th Cir.
1980)]:
It is well established that interrogation of employ-
ees is not illegal per se. Section 8(a)(1) of the Act
prohibits employers only from activity which in
some manner tends to restrain, coerce or interfere
with employee rights. To fall within the ambit of
Section 8(a)(1) either the words themselves or the
content in which they are used must suggest an ele-
ment of coercion or interference.
Thus, the surrounding circumstances of the interrogation de-
termines its unlawfulness and the Board will consider the
time, place, personnel involved, and the known position of
the employer, in making such a determination. Teamsters
Local 633 (Bulk Haulers) v. NLRB, 509 F.2d 490 (D.C. Cir.
1974).
In applying the above law to the facts of this case, I am
convinced that the Respondent violated Section 8(a)(1) of the
Act as alleged in the complaint. Van Vlerah’s promise of
higher wages and benefits made while soliciting Reust to
abandon his support for the Union, violated Section 8(a)(1)
of the Act. M. K. Morse Co., 302 NLRB 924 (1991). More-
over, Van Vlerah’s interrogation of Reust as to what the
Union had ever done for him was designed to illicit the ex-
tent of Reust’s union support and sympathies or lack thereof
and coupled with a promise of increased pay and benefits if
Reust rejected union representation also violated Section
8(a)(1) of the Act, since it reasonably tended to restrain, co-
erce, or interfere with rights guaranteed by the Act. Western
Health Clinics, 305 NLRB 400, 407 (1991).
C. The dDischarge of Arden Reust
The complaint alleges that the Respondent violated Section
8(a)(1) and (3) of the Act by discharging employee Arden
Reust because he formed, joined, and assisted the Union and
engaged in concerted activities, because the Respondent be-
lieved that he had done so, and to discourage membership
in a labor organization.
Section 8(a)(3) of the Act makes it an unfair labor practice
for an employer to discriminate ‘‘in regard to hire or tenure
of employment or any term or condition of employment to
encourage or discourage membership in any labor organiza-
tion.’’ Under the test announced in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), and approved by the Supreme Court
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), a discharge is violative of the Act only if the em-
ployee’s protected conduct is a substantial or motivating fac-
tor for the employer’s action. If the General Counsel carries
his burden of proving unlawful motivation, then the em-
ployer may avoid being held in violation of Section 8(a)(1)
and (3) of the Act only if it can show that ‘‘the same action
would have taken place even in the absence of the protected
conduct. Wright Line, supra at 1089. Also see J. Huizinga
Cartage Co. v. NLRB, 941 F.2d 616 (7th Cir. 1991).9 How-
ever, when an employer’s motives for its actions are found
to be false, the circumstance may warrant an inference that
the true motivation is an unlawful one that the employer de-
sires to conceal. Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466 (9th Cir. 1960). The motive may be inferred from
the total circumstances proved. Moreover, the Board may
properly look to circumstantial evidence in determining
whether the employer’s actions were illegally motivated.
Associacion Hospital del Maestro, 291 NLRB 198 (1988);
White-Evans Service Co., 285 NLRB 81 (1987); NLRB v.
O’Hare-Midway Limousine Service, 924 F.2d 692 (7th Cir.
1991). That finding may be based on the Board’s review of
the record as a whole. ACTIV Industries, 277 NLRB 356
(1985); Heath International, 196 NLRB 318 (1972).
In establishing a prima facie case of unlawful motivation
as the first part of the Wright Line test, the General Counsel
is required to prove not only that the employer knew of the
employee’s union activities or sympathies, but also that the
timing of the alleged reprisals was proximate to the protected
activities and that there was antiunion animus to ‘‘link the
factors of timing and knowledge to the improper motiva-
tion.’’ Hall Construction v. NLRB, 941 F.2d 684 (8th Cir.
1991); Service Employees Local 434-B, 316 NLRB 1059
(1995).
In the case Van Vlerah learned of Reust’s unwavering sup-
port of the Union when on September 21, 1993, he coer-
cively interrogated Reust and offered Reust a substantial in-
crease in pay and unspecified additional benefits if he would
abandon the Union and help the Respondent go nonunion.
Reust at that time defended the Union and rejected Van
Vlerah’s offer. Moreover, aside from the fact that the Re-
spondent engaged in various violations of Section 8(a)(1) of
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Van Vlerah characterized some of those ‘‘problems’’ as ‘‘most
likely not noteworthy of making written records of. Just piping prac-
tices that were wrong . . . blueprints that weren’t followed. Things
of that nature.’’ As for Reust using the Respondent’s gas in his own
car, he had been allowed to do so on occasion but this was discon-
tinued after Reust refused Van Vlerah’s offer on September 21,
1993. In fact Van Vlerah admitted that Reust was not disciplined for
unauthorized use of company materials. Moreover, Reust’s ‘‘blowing
up a company truck that he was using appeared, according to Van
Vlerah’s own testimony, to be satisfactorily explained and attrib-
utable to Reust’s hearing problem and Reust received no discipline
for this incident. And the incident with the unsecured acetylene
tanks, Reust received no discipline for the first violation but did re-
ceive a warning for a repetition of this safety violation after Septem-
ber 21, 1993, although the violation had been discovered prior to
that date and could have led to fines against the Respondent.
the Act, the record evidences other instances of antiunion
animus on the part of Van Vlerah, i.e., Van Vlerah’s state-
ment to Reust about going nonunion after the incident with
Plumbers Local 50 Business Agent Flowers, Van Vlerah’s
statements to Leonard La Bundy, JAC director of training,
and Mark Richards, Plumbers Local 166 business manager,
about working nonunion, all occurring in fairly close proxim-
ity to the Respondent’s discharge of Arden Reust and estab-
lishes by a preponderance of the credible evidence that the
General Counsel has made a prima facie showing sufficient
to support the inference that protected conduct was a ‘‘moti-
vating factor’’ in the Respondent’s decision to terminate
Reust and was discriminatorily motivated. Wright Line,
supra; Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984).
In order to rebut the General Counsel’s prima facie case,
the Respondent must show that it would have discharged
Reust even in the absence of his union activities and support.
The Respondent has the burden of presenting ‘‘an affirmative
defense in which the employer must demonstrate by a pre-
ponderance of the evidence that the same action would have
taken place even in the absence of the protected conduct.’’
Equitable Gas Co., 303 NLRB 925 (1991); Chelsea Homes,
298 NLRB 813 (1990).
The Respondent asserts that the reason for Reust’s termi-
nation was his failure to meet the required deadline on the
gas line tie-in and his failure to immediately notify the Re-
spondent of the problem with the gas line leak for at least
2 days, leaving the Pioneer school in state code violation and
resulting in additional costs to the Respondent for overtime
and double time pay since the work on the Pioneer job now
was required to be performed on a Saturday with a larger
work crew and the Pioneer school board refused to reimburse
the Respondent for these costs.
Despite this, Van Vlerah testified that Reust’s discharge
was a ‘‘cumulative thing’’ enumerating several other ‘‘prob-
lems’’ with Reust starting with his first year of employment,
some occurring shortly before his termination, ‘‘which cast
a bad light about him in the eyes of Van Vlerah Mechani-
cal.’’10 However, it is significant to note that Van Vlerah
considered Reust to be a key employee, reliable and hard
working and performing a good job most of the time until
after Reust rejected his offer to abandon the Union and help
the Respondent go nonunion. Moreover, Reust had never re-
ceived any discipline for these ‘‘problems’’ prior to his rejec-
tion of Van Vlerah’s offer of a substantial wage and benefit
increase if Reust rejected the Union and assisted the Re-
spondent in going nonunion, and Reust had been promoted
to working foreman in May 1992 and given a company truck
to take home, a sign of trust and confidence by the Respond-
ent.
As to the main reason for the Respondent’s discharge of
Reust as alleged, that the Respondent terminated him because
he failed to meet the tie-on deadline and to apprise the Re-
spondent of the problems he was having on the Pioneer Job
site with the gasline tie-in, the credible evidence shows that
Reust actually did take appropriate steps to do so. On Sep-
tember 30, 1993, after taking action to discover where the
leak was coming from, Reust gave Jacquay the defective
meter fitting advising him of the problem he was experienc-
ing at the Pioneer Job site with the tie-in pipe line and then
told Karen Van Vlerah about this, with Karen Van Vlerah
acknowledging that she understood the problem. This was
proper procedure for reporting problems on jobsites.
While I admit that I found this to be a close question, I
find that the strong prima facie case established by the Gen-
eral Counsel was not rebutted by the Respondent. In this
connection the Respondent’s burden is substantial. EddyLeon
Chocolate Co., 301 NLRB 887 (1991). In view of all of the
circumstances present in this case, the Respondent has not
met its burden under Wright Line and therefore the discharge
of Arden Reust violated Section 8(a)(1) and (3) of the Act.
T & J Trucking Co., supra; Prime Time Shuttle Inter-
national, 314 NLRB 838 (1994).
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent, set forth in section III
above, occurring in connection with the Respondent’s oper-
ations described in section I above, have a close and intimate
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain
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.
Having found that the Respondent unlawfully terminated
Arden Reust, the Respondent shall be ordered to offer him
immediate reinstatement to his former position, discharging
if necessary any replacement hired since his termination, and
that he be made whole for any loss of earnings or other ben-
efits by reason of the discrimination against him in accord-
ance with the Board’s decision in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest computed as in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). See also
Florida Steel Corp., 231 NLRB 651 (1977); and Isis Plumb-
ing Co., 138 NLRB 716 (1962).
Because of the nature of the unfair labor practices herein
found, and in order to make effective the interdependent
guarantee of Section 7 of the Act, I recommend that the Re-
spondent be ordered to refrain from in any like or related
manner abridging any of the rights guaranteed employees by
Section 7 of the Act. The Respondent should also be re-
quired to post the customary notice.
747VAN VLERAH MECHANICAL
11 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.
12 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.’’
CONCLUSIONS OF LAW
1. The Respondent, Van Vlerah Mechanical, Inc., is now
and has been at all times material, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union, Plumbers and Steamfitters Local Union No.
166, a/w United Association of Journeymen and Apprentices
of the Plumbing & Pipefitting Industry of the United States
& Canada, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent, in violation of Section 8(a)(1) of the
Act, has interfered with, restrained, and coerced its employ-
ees in the exercise of their rights under Section 7 of the Act
by interrogating its employees about their union membership,
activities, and sympathies, by promising its employees that
their wages and benefits would improve if the employees re-
jected the Union as their bargaining representative, by solicit-
ing its employees to abandon their support for the Union,
and by threatening its employees with discharge if they as-
sisted their union in enforcing the collective-bargaining
agreement.
4. The Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act by terminating
employee Arden Reust because he joined, supported or as-
sisted the Union and engaged in concerted activities, because
the Respondent believed he had done so, and to discourage
employees from engaging in these activities.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, Van Vlerah Mechanical, Inc., Angola, In-
diana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees concerning their union
membership, activities, and sympathies.
(b) Promising its employees improved wages and benefits
if they rejected the Union as their bargaining representative.
(c) Soliciting its employees to abandon their support for
the Union.
(d) Threatening its employees with discharge if they as-
sisted their Union in enforcing the collective-bargaining
agreement.
(e) 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) Offer employee Arden Reust immediate and full rein-
statement to his former job or, if his position no longer ex-
ists, to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges previously
enjoyed by him, and make him whole for any loss of earn-
ings and other benefits suffered by him as a result of the dis-
crimination against him in the manner set forth in the remedy
section of this decision, and remove from the Respondent’s
personnel records any references to his termination and no-
tify him, in writing, that this has been done and that evidence
thereof will not be used as a basis for any future personnel
action against him.
(b) 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.
(c) Post at its Angola, Indiana facility copies of the at-
tached notice marked ‘‘Appendix.’’12 Copies of the notice,
on forms provided by the Regional Director for Region 25,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.