Mueller Insulation Co. and The Mueller Company of Missouri, Inc., successor employer and/or alter ego

National Labor Relations Board - Board Decisions

Aug 26, 1982

263 N.L.R.B. 757 (N.L.R.B. 1982)

MUELLER INSULATION CO.
Mueller Insulation Co. and The Mueller Company of
Missouri, Inc., successor employer and/or alter
ego and Larry Crump and Terry Crump. Cases
14-CA-15342 and 14-CA-15342-2
August 26, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On April 26, 1982, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, counsel for the General
Counsel filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein.
AMENDED CONCLUSIONS OF LAW
We adopt the Administrative Law Judge's Con-
clusions of Law, with the following modification:
Substitute the following for Conclusion of Law
3:
"3. By constructively discharging Larry Crump,
Terry Crump, Michael Martin, Bruce Smith, Rich-
ard Fleetwood, and David Meyer, on June 8, 1981,
until on or about June 22, 1981; by discharging
Larry Crump on September 4, 1981; and by dis-
charging Terry Crump, Michael Martin, Bruce
Smith, David Meyer, and Tracy Hahn on October
9, 1981, and not reinstating them, or any of them,
to their former positions thereafter, Respondents
violated Section 8(a)3) and (1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respond-
ents, Mueller Insulation Co. and The Mueller Com-
pany of Missouri, Inc., successor employer and/or
alter ego, St. Charles, Missouri, their officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order as so
modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Larry Crump, Terry Crump, Michael
Martin, Bruce Smith, David Meyer, and Tracy
263 NLRB No. 95
Hahn, if Respondents have not already done so,
immediate and full reinstatement to their former
positions or, if such positions no longer exist, to
substantially equivalent positions without prejudice
to their seniority or other rights and privileges, dis-
charging if necessary any employees hired to re-
place them. In the event that there is insufficient
work for all of those to be offered reinstatement,
Respondents shall place those employees for whom
no employment is available on a preferential hiring
list,' and make them and Richard Fleetwood
whole for any loss of earnings they may have suf-
fered by reason of Respondents' unlawful discrimi-
nation against them, in the manner set forth in the
section of this Decision entitled 'The Remedy."'
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from the files any references to the
discharges of Larry Crump on September 4, 1981,
and of Terry Crump, Michael Martin, Bruce Smith,
David Meyer, and Tracy Hahn on October 9, 1981,
and notify them in writing that this has been done,
and that evidence of these unlawful actions will not
be used as a basis for future discipline against
them."
3. Substitute the attached notice for that of the
Administrative Law Judge.
I While the Administrative Law Judge's recommended remedy proper-
ly requires Respondents to offer immediate and full reinstatement to
Larry Crump and reinstatement to other employees on the basis of se-
niority and provides for the possibility that fewer than six installer posi-
tions remain at Respondents' facility, it does not expressly require that a
preferential hiring list be established. Accordingly, we order that Re-
spondents place the names of those employees, if any, for whom no em-
ployment is available, after distribution of all available positions, on a
preferential hiring list, with priority in accordance with a system of se-
niority, and that Respondents thereafter offer them reinstatement as such
employment becomes available and before other persons are hired for
such work. See Central TrunnpoL Inc, 247 NLRB 1482, fn. 2 (1980).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discharge or otherwise dis-
criminate against any employees in regard to
their hire, tenure of employment, or any term
or condition of their employment, in order to
discourage membership in Carpenters District
757
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Council of Greater St. Louis, Local No. 73, or
any other labor organization.
WE WILL NOT inform employees that they
can work only under nonunion conditions; WE
WILL NOT imply a desire for reprisal against
employees for causing us problems with the
Union, or any other labor organization; and
WE WILL NOT instruct that employees not be
given work because of their tendency to sup-
port the Union, or any other labor organiza-
tion.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them under
Section 7 of the National Labor Relations Act.
WE WILL offer to Larry Crump, Terry
Crump, Michael Martin, Bruce Smith, David
Meyer, and Tracy Hahn, as is appropriate
under the Board's Decision and Order, full and
immediate reinstatement to their former jobs,
or, if such jobs no longer exist, to substantially
equivalent jobs, without prejudice to their se-
niority and other privileges, and WE WILL
make them and Richard Fleetwood whole for
any loss of earnings they may have suffered by
reason of our unlawful discrimination against
them, with interest. In the event that there is
insufficient work for all of those to be offered
reinstatement, WE WILL place those employees
for whom no employment is available on a
preferential hiring list.
WE WILL expunge from our files any refer-
ences to the discharges of Larry Crump on
September 4, 1981, and of Terry Crump, Mi-
chael Martin, Bruce Smith, David Meyer, and
Tracy Hahn on October 9, 1981, and notify
them in writing that this has been done, and
that evidence of these unlawful actions will
not be used as a basis for future discipline
against them.
MUELLER INSULATION CO. AND THE
MUELLER COMPANY OF MISSOURI,
INC.
DECISION
BERNARD RIES, Administrative Law Judge: This
matter was heard before me in St. Louis, Missouri, on
February 22 and 23, 1982. The principal allegations of
the amended complaint assert that Respondents Mueller
Insulation Co. (herein Mueller Insulation) and The
Mueller Company of Missouri, Inc. (herein Mueller Mis-
souri), occupy a successor and/or alter ego relationship;
that Mueller Insulation unlawfully laid off seven employ-
ees for a 2-week period in June 1981; that Mueller Insu-
lation unlawfully discharged Larry Crump on September
4, 1981; that Mueller Missouri wrongfully discharged
six' employees on October 9, 1981; and that agents of
the two Respondents uttered various unlawful statements
in June, July, and September 1981.2
The General Counsel has submitted a brief; Respond-
ent has not. Based on the entire record s and my recollec-
tion of the demeanor of the witnesses, and having given
careful consideration to the brief filed by the General
Counsel, I make the following recommended findings of
facts and conclusions of law.
I. THE SETTING
Since 1972, Earl and June Mueller operated an insula-
tion contracting firm, from offices at 1810 Scherer Park-
way, St. Charles, Missouri, under the corporate title of
Mueller Insulation Co. Earl was the president and only
member of the board of directors of that corporation,
and June was its secretary.
Mueller Insulation was not the only Mueller business
sheltered at the Scherer Parkway address; the record
shows that a sole proprietorship called "Mueller Indus-
tries" was introduced there in 1980 and later resurrected,
and, in September 1981, a newly created corporation,
Respondent Mueller Missouri, was started and became a
tenant of the same offices. For the moment, we will
leave unexplored the relationship between these entities,
and concern ourselves only with Mueller Insulation.
Promptly upon the inception of Mueller Insulation in
1972, the Muellers extended bargaining recognition to
the Carpenters District Council of Greater St. Louis,
Local No. 73, and signed a series of collective-bargaining
agreements with that Union. In May 1980, Mueller, as
part of the Insulation Contractors Association of Greater
St. Louis, executed two 3-year agreements with the
Union, one being a special "Reinsulation Agreement."
As of June 1981, Mueller Insulation was principally
engaged in installing insulation in commercial construc-
tion and in residences, both new and old. Six 4 installers,
all members of the Union, performed this work, the most
senior being Larry Crump, who began employment with
Mueller Insulation in June 1973 and, with the exception
of a I-month departure, was continuously employed
thereafter.
The first event addressed by the complaint occurred
on June 8, 1981. It is alleged that, on that date, Mueller
Insulation laid off all its installers for a reason forbidden
I At the hearing, the General Counsel deleted the name of Rick
Fleetwood from this allegation.
' It does not appear from the formal file that Respondent Mueller Mis-
souri ever filed an answer to the complaint. Only two answers are con-
tained in the file, one to the complaint in Case 14-CA-15342, issued on
October 19, 1981, and the other to the order consolidating cases, amend-
ed complaint, and notice of hearing, issued on November 16. Although
Mueller Missouri is named as a separate Respondent in both cases, the
two answers are apparently filed only on behalf of Mueller Insulation
(Respondent herein, the only employer of the employees herein, is the
Mueller Insulation Co.). Counsel for the General Counsel has made no
point of this in his brief.
' Certain errors in the transcript are hereby noted and corrected.
' Larry Crump, Terry Crump, Bruce Smith, David Meyer, Michtel
Martin, and Richard Fleetwood. Although the complaint alleges that
Larry Craden was one of the installers laid off in June, G.C. Exh. II
shows that Craden wa not hired until September. I shall therefore omit
Craden from my consideration of the allegation relating to the June 8
layoff.
758
MUELLER INSULATION CO.
by Section 8(a)(3) of the Act, and did not return them to
work for some 2 weeks. That claim is considered hereaf-
ter.
11. THE JUNE 8 SEPARATION FROM EMPLOYMENT
On the morning of June 8, Earl and June Mueller met
with the installers. Although the meeting lasted for 30
minutes or more, Larry Crump succinctly summarized its
content as follows:
Mr. Mueller told us that he no longer could afford
the union wages and that it was costing him too
much so he was going to have to let us go, but he
also advised us that if we wanted to, we could go in
and sign an application for the new company which
was going to be non-union.
Crump further testified on recall that, on behalf of the
employees, he asked Mueller for a day in which to con-
sider the proposition; the men did not, however, return
to work, and it appears that there was no subsequent dis-
cussion between the Muellers and the installers until the
week of June 22, when Earl Mueller called the men and
asked them to resume their employment.
Earl and June Mueller denied that the men had been
confronted with a choice of "no union or no work" on
June 8. Earl testified instead that he informed the em-
ployees at length about the "considerable losses" the
Company had been experiencing, and he blamed these
deficits on their poor productivity, accusing the employ-
ees of taking too long to work, to load trucks, and to get
to the jobs, and of not properly recording their time. He
further informed them that the firm no longer had any
cash reserves, and that, "for all practical purposes. we
are out of business." He purportedly asked the employ-
ees for "suggestions" about alleviating the problem. He
denied, however, that he had told the employees that
they could not continue to have union representation; he
said, rather, that he ended by telling them, "We're going
to have to make some changes. Let's figure out what to
do," after which the men "indicated they needed some
time to think about this and I agreed and they went on."
According to Earl, when he did not hear from the em-
ployees "right away," he contacted Union Business
Agent Ray Brewer and notified him that he was going to
put his three sons to work and "get some outside labor
people to maybe give them a hand."
We have, therefore, a clear testimonial conflict as to
whether the employees were given an ultimatum on June
8 or whether, as Earl Mueller indicated, he simply in-
formed the men of the Company's financial straits and
asked for their suggestions, and they afterwards stayed
away from work on their own accord. On the face of it,
of course, Larry Crump's version is vastly more appeal-
ing. It seems most unlikely that employees would simply
abandon their livelihood because they were piqued by
employer criticism of their performance or perhaps in
order to ponder at leisure about possible "suggestions"
they could make to help improve the Company's produc-
tivity. If, indeed, productivity and performance were
thought by each to be the problem, it seems only reason-
able that he would have proposed to the employees that
they return to their jobs with renewed vigor and pur-
pose, subject to a review of their efforts after a given
time period; Earl conceded at the hearing, however, that
he made no such proposal.5
Aside from logical considerations, however, the Gen-
eral Counsel has produced an abundance of evidence to
confirm Larry Crump's account. Installers Richard
Fleetwood and Terry Crump (brother of Larry), who
were present on June 8, testified as Larry did, that they
were presented a stark choice of working for a nonunion
company or losing their jobs. Paul Brinkmann, an estima-
tor and scheduler for Mueller Insulation, testified that
after the June 8 meeting, Earl told him that he "had to
lay the men off. . . he said that the wages were just too
high." Sherri Mason, who worked as a telephone solici-
tor and secretary for Mueller Industries, testified that
when she asked June Mueller, after the June 8 meeting,
what had been discussed, June replied that "we've gone
non-union." e Edward W. Schultz, Jr., who worked with
Mueller Industries, testified that Earl told him that the
June departure had been occasioned by the fact that "the
men were costing them too much and they could do the
job a lot cheaper with other manpower."
I found each of these witnesses most impressive and,
despite the various grievances that they may have had
against the Muellers, I do not believe that they were
lying. Although June Mueller testified in support of her
husband, I thought their testimony inadequate to rebut
the substantial weight of the testimony proffered by the
General Counsel. There are, in addition, other circum-
stances which tend to give the lie to the Muellers' case.
One is that after June 8, and before the regular em-
ployees returned, Respondent hired several other em-
ployees, incuding their three sons, to perform installation
work. According to the Muellers, these employees were
put on the payroll of Mueller Industries. This was a sole
proprietorship started by Earl in January 1980 to con-
duct a remodeling business; it lapsed into disuse after 4
months and was reactivated around May 1981 for the
purpose of selling windows in conjunction with Edward
Schultz, a manufacturer's representative for the product.
Putting the new employees hired in June on the Mueller
Industries payroll while they performed insulation work
contracted for by Mueller Insulation provides convincing
evidence that Earl had indeed announced to the employ-
ees a plan to shift their work to a nonunion operation,
and was attempting to act consistently with that scheme.
Moreover, it appears that the employees were not, as
would follow from Earl's account, passively laying off
and musing about ways to meet his objections to their
performance. June's testimony shows that they immedi-
ately turned to their business agent for assistance and
thereafter, in her words, "the negotiations" were with
the business agent. The term "negotiations" ill fits the
scenario described by Earl; it fits very well the one out-
lined by General Counsel's witnesses. And when the em-
ployees were finally recalled to work on or about June
6 Earl's concession that he did not do so because what he was talking
about, at bottom, was "money," may be read to mean that the problem
discussed was not productivity, but rather, union scale.
C June denied having made this statement.
759
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
22-Earl explained that he could not hire enough install-
ers to perform quality work in the interim, and also that
there had been problems with the nonunion employees
being run off unionized construction jobs-it was the
result, said Earl, of a meeting with business agent
Brewer in which "we agreed that we would take these
men back." But Earl had no recollection of giving the
men a pep talk about productivity once they had re-
turned, and it would appear that the first reference there-
after to that topic was at a meeting between June,
Brewer, and the men in August, some 6 weeks later.
There are other indications that the employees re-
ceived an ultimatum on June 8. June Mueller testified
that she told the men in August that she knew "that ev-
eryone had hard feelings and-and we were all pulling
against each other at that point...." Asked to explain
the reference to "hard feelings," she said that when "the
men came back, after the layoff, they were very-they
just had a funny attitude. They weren't friendly .... "
"Hard feelings" are more consistent with a forced depar-
ture than with, as Respondent would have it, a voluntary
one. It should also be noted that, in this testimony, June
used the word "layoff," although she had earlier been
careful to refer to the period as one in which "the men
did not choose to work." While, when this point was
noted, she scrambled to suggest that the word "layoff"
had simply been adopted by her from an earlier question,
the record shows that she was in error on this point. 7
While anything might happen in a world in which im-
probable events occur all the time, I am quite comfort-
able in concluding, on the basis of the foregoing discus-
sion, that the installers were coerced into leaving the em-
ployment of Mueller Insulation from June 8 to around
June 22 because they would not agree to surrender their
union representation. Termination resulting from such an
ultimatum plainly violates Section 8(a)(3) and (1) of the
Act. N.LR.B. v. Ra-Rich Manufacturing Corporation, 276
F.2d 451, 454 (2d Cir. 1960). "Imposing such a condition
on continued employment discourages union membership
almost as effectively as actual discharge. Plainly, §
8(a)(3) . . . includes an unreasonable and improper con-
dition for retaining employment as well as actual dis-
charge." Henry A. Young, d/b/a Columbia Engineers In-
ternational, 249 NLRB 1023, 1031-32 (1980).8
The record makes clear that Mueller Insulation was
suffering serious losses in 1981. There may well have
been a problem with productivity, although it appears
that the critical difficulty, as expressed by Mueller, was
the level of the union wages. When an employer feels
strangled by a union contract, it is understandable that
he might seek out ways to alleviate his distress. If an em-
ployer feels that he is paying too much for the value he
receives, employees can be disciplined or discharged,
often an effective incentive to the others. Or an employ-
er may attempt to renegotiate his contract with the union
I I also note Larry Crump's uncontradicted testimony that when Earl
recalled him to work, he asked if Larry "wanted to come back as a union
worker."
8 The complaint alleges that the statement of choice by Earl to the
men on June 8 also itself violated Sec. 8(aXl) of the Act. While the state-
ment might be argued to merge into the discharge, and thus be legally
superfluous, I suppose that it would be appropriate to find the separate
violation as charged.
on a showing of his precarious financial condition. Re-
quiring employees to forsake their union representation
in order to believe his economic plight is not, however, a
legally acceptable answer to the problem. See George W:
Ball, Phillip M. Steen, Arnold Sagolyn and Clayton Fit-
chey, t/a Northern Virginia Sun Publishing Company, 159
NLRB 1634, 1644-45 (1966).
111. THE DISCHARGE OF LARRY CRUMP
The next event alleged in the complaint to be violative
of Section 8(a)(3) is the termination of Larry Crump on
September 4, 1981.
Crump, as earlier noted, was Respondent's senior in-
staller, having been employed for more than 8 years at
the time of his discharge. The record shows that he was
regarded as Mueller's most able employee; he also served
as a leadman, who organized the work and trained the
new employees; and he probably acted more as a spokes-
man for the employees than any other installer.
Similarly, Sherri Mason testified that around July 24,
while speaking on the phone to June Mueller about a
payroll problem of Mueller Industries, June asked if
Larry had done the Mueller Industries window job.
Mason said he had not, and inquired as to why June had
asked. June replied, "If he did, we're going to hang his
ass with the Union because he's been giving us problems
with them."
June denied having made such statements; Earl was
not asked about the threat attributed to him by Schultz. I
found Schultz and Mason most believable, and I infer
from their testimony a decided animosity on the part of
the Muellers against Larry Crump due to his activism in
enforcing the collective-bargaining agreement. The testi-
mony, of course, is relevant to the issue of why Crump
was discharged on September 4 .
9
Subsequently, Crump again complained about the
manner in which the contract was being enforced. At a
meeting conducted by June with the installers in the first
week in August, Larry asserted that two employees had
not received wage increases in accordance with the
agreement. Although June construed the contract to
leave such decisions to the employer's discretion, she
agreed, as a sign of good faith, to give Terry Crump and
Michael Martin a raise.
Earl Mueller was in Atlanta for 2 weeks in July and
the entire month of August. He returned to St. Charles
on Friday, September 4, and reached his office at 2:30 or
3 p.m. At that time, he says, he began to check employee
timecards and work records. At 4:30, he had a meeting
with the installers at which he told them that they were
not filling out their records properly. After this meeting,
he called Crump aside and discharged him saying that he
"hated to do this," but that, in Crump's words, his "foot-
age wasn't up to par and that I was late too much." At
the hearing, Earl agreed that these were the reasons he
had assigned to the discharge.
9 The statement to Mason is also alleged to be a separate violation of
Sec. 8(aXl). It seems reasonable to find coercive a disclosure to an em-
ployee of an employer's desire to get another employee in trouble with
his union because that employee has been causing problems for the em-
ployer with the union, and I so conclude.
760
MUELLER INSULATION CO.
On their face, these asserted justifications are quite un-
convincing. As to Crump's lateness, Earl testified that,
on the day of discharge, he had examined Crump's time
records for the preceding few weeks (having done so be-
cause Crump's cards happened to be on the top of the
pile) and discovered that he had been repeatedly late,
often arriving at 7:30 a.m. instead of the appointed hour
of 7 a.m.
When Crump returned to work on June 22, he got
into an argument with Earl Mueller, who expressed
anger about the current policy with regard to the use of
company trucks. When Mueller insisted that he would
thereafter "go by the contract," Crump implied that he
would do so too, making pointed reference to the fact
that Mueller's sons "that were non-union [were] working
on our jobs on Saturdays," a practice which had preced-
ed the layoff. That day, Larry called the business agent
and complained about this contract violation, and he fur-
ther grieved that the installers were not receiving com-
mercial pay for performing commercial work (which
would amount to an additional 70 cents per hour). In ad-
dition, Crump told the business agent that the employees
had not been remunerated appropriately for overtime
work. Some time later, the employees were paid retroac-
tively for commercial work earlier performed.
Crump continued to speak to the business agent sever-
al times a week, and at one point the latter suggested
that the employees name a shop steward. Around mid-
July, the men met at Crump's house and elected him to
that post. There is no evidence in the record that Earl
Mueller became aware of this election prior to his deci-
sion fire Crump.
There is, however, evidence that the Muellers were
disturbed by Larry Crump's militancy. Sherri Mason and
Edward Schultz both testified to an incident in July pro-
voked by Schultz' request to June Mueller that he be al-
lowed to use Crump (who had been selected by Earl to
learn the technique of installing the new window line) to
install a particular window job contracted for by Mueller
Industries. Schultz credibly testified that June had given
him permission to employ Crump's services, but appar-
ently Crump decided to forgo the opportunity since it
would have meant working at a piece rate, considered to
be unacceptable for a union man.
When June later asked Schultz if Larry had done the
job and was told that he had not, June said to Schultz
that it was a "good thing" for Crump that he did not
perform the work because, if he had, Respondent
"would have hung his ass." Later that day, in a tele-
phone conversation between Schultz and Earl, who was
away in Atlanta attending to an insulation business he
owned there, Schultz inquired about this remark, and
Earl replied to the effect that "Larry's trying to play this
Union thing to the hilt since they've been called back
and he better watch his step all the way or else some
things are going to happen," or "Larry had better his
step [sic] and learn how to adhere to company rules be-
cause we thoroughly intend to enforce them."
The testimony shows, however, that being tardy had
practically become a fixed term and condition of em-
ployment for Crump. For the 8 years he had worked, he
had been late, in his words, "probably three or four days
a week," and Mueller had, concededly, for 8 years chas-
tised Crump for this chronic fault. Some 2 or 3 years
before, Earl had attempted to do something about it,
docking Crump's pay once or twice, but he had aban-
doned that effort in the fact of Crump's persistence. Paul
Brinkmann testified that Crump's tardiness caused no
delay, because the first 30-45 minutes of the day were
devoted to loading trucks, and that could be done by
Crump's assigned helper while he waited for Crump; and
Edward Schultz testified to a conversation in which Earl
had said that Crump's one fault was his tardiness, but
that it was "nothing that couldn't be overlooked because
his-his work more than made up for it." Against such a
background, it hardly seems likely that Earl would have
become so exercised about the fact that, in August
Crump reported late for work, just as he had for the pre-
ceding 8 years.
The other reason given for the discharge-that
Crump's "footage wasn't up to par"-is no less dubious.
"Footage" refers to the amount of insulation installed by
employees. The testimony shows that, each day, the in-
stallers are supposed to enter on their timecards the
amount of footage they individually installed, whether
"batt" or "blow," and also the amount and type of mate-
rials used. Some cards in evidence filled in by Crump
during the period August 20-September 2 show that he
was negligent in making these entries; that, however,
was not a reason given by Earl as contributing to his dis-
charge. t o
There is another record, the work order, on which the
installers are also supposed to designate how much mate-
rial was used by each on a job. Earl conceded, however,
that the men had fallen into the habit of only listing the
total amount of material used by the entire crew. It fol-
lows, therefore, that whenever two or more employees
worked on a job, it was not possible to tell, from the ag-
gregate figure shown, how much work a certain employ-
ee had done. Obviously, this would have frustrated any
effort to accurately determine whether or not Crump
had performed poorly or not in the few weeks preceding
September 4, especially since there is no indication that
Crump had worked alone at any time during that period.
Mueller's attempt to explain his conclusion about
Crump's subpar performance, in the face of these diffi-
culties, was not very compelling. He said that even when
Crump worked with another employee, if they failed to-
gether to measure up, "the journeyman would be the one
that should hold the responsibility." This dictum, of
course, fails to take account of the problems which
might naturally arise on any job and the capability of the
helper, among other things. t The same comments apply
to Earl's testimony that, in attempting to calculate the
work done by Crump, he used a rule of thumb of divid-
ing the total shown on the work reports among the
number in the crew on each job.
o1 This sort of dereliction was also, as Earl said, not a new thing for
Larry, who had not complied with the paperwork requirement "very
often" in his 8 years.
It I think it worthy of note that Respondent failed to produce any
records which, by comparison with earlier work orders, might provide
an intelligible basis for Earl's claim of a perceptible decrease in Crump's
performance.
761
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is, moreover, striking that, without prior warning,
without preliminary inquiry into such material matters as
the state of Crump's health or personal problems which
might have had a bearing on his performance (it will be
recalled that Mueller had been out of town for 6 weeks
prior to September 4), and without offering a second
chance, Mueller should simply announce, to his most
veteran employee (referred to by Mueller himself at the
hearing as "an extremely good insulator" in whom,
before he started "slipping," Mueller "had a lot of confi-
dence"),'2 that he was through after 8 years of faithful
work, based on a hasty review of records in a few hours
on a Friday afternoon. ' 3
It appears to me that Mueller was thoroughly angry at
Crump for his aggressive enforcement of the bargaining
agreement in June, July, and August. At the first oppor-
tunity after his return from his lengthy stay in Atlanta,
Mueller went to his office, reviewed Crump's records
(not by happenstance), and thought that he could make a
case for the "thorough enforce[ment]" of rules against
Crump which Mueller had, in his conversation with
Schultz, threatened against Crump for "trying to play
this Union thing to the hilt."
Given the clear showing of animus against Crump and
the speciousness of the reasons offered for his discharge,
I am persuaded that the General Counsel has shown, by
a preponderance of the evidence, that Crump's discharge
on September 4, 1981, violated the statute.
IV. THE OCTOBER 9 DISCHARGES
The amended complaint alleges that the discharge of
six named installers on October 9, 1981, also violated
Section 8(a)(3).
After the regular employees returned to work in June,
Mueller Insulation hired five more installers. Joseph
Spooner started in late June and left in the third week in
July; Tracy Hahn commenced work in the week ending
July 8; Garlon Brown and Larry Craden started on Sep-
tember 11; and David Rennels began on September 14.14
Earl Mueller testified that by September his Compa-
ny's financial condition had reached so deplorable a state
that he and his wife were thinking about closing down
entirely. Early in September, however, they were "ap-
proached" by Norm and Beverley Brown of Englewood,
Colorado, whose identity and interest are not further ex-
plained, and agreement was reached that the Browns
(apparently Mr. Brown) would contribute some money
"to try to reestablish and rebuild a business." The new
firm, to be called The Mueller Company of Missouri,
Inc., would differ from Mueller Insulation not only in
that it would "give up our commercial insulation alto-
gether," but also it would be "a total energy type of
business rather than just insulation and some windows,"
"1 Schultz testified that, prior to May, Earl had referred to Crump as
"his best man."
13 It is true, that, at Crump's behest, Mueller agreed to meet with him
on Saturday to discuss the matter further; that came to naught, for rea-
sons which need not be discussed here. What is important is that an em-
ployer would, in the given circumstances, determine to fire such an em-
ployee and announce his discharge without any investigation into the as-
serted deficiencies.
14 See G.C. Exh. II1.
including new services such as ventilation systems, ther-
mostats, caulking, weatherstripping, etc.
The initial registration report for Mueller Missouri was
filed with the State on September 29; it shows Beverley
Brown as president, June Mueller as secretary and trea-
surer, and a board of directors composed of Beverley
Brown and the two Muellers. Earl was peculiarly uncer-
tain at the hearing as to whether he had contributed any
capital to the fledgling firm; as well, we do not know
how much money the Browns infused, although Earl
said it was "many thousands more" than he did. Bever-
ley Brown and the two Muellers each received one-third
of the capital stock.
Around the end of September, the installers were re-
quired to fill out new applications for employment with
Mueller Missouri. Paul Brinkmann, the estimator and
scheduler, testified that he was not asked to make a new
application. Brinkmann further testified that the only im-
mediate change in operations was that the corporate
name on the trucks was changed to reflect the new
entity. Terry Crump testified, without contradiction, that
at this time, Earl told him that "the company had
changed hands." When Terry asked if the company
would continue to be unionized, Earl said that he would
abide by the union rules until a contract was signed by
the new company.
At some point, according to the testimony of June
Mueller, new employee Tracy Hahn became a member
of the Union, but apparently Garlon Brown, Larry
Craden, and David Rennels, who had been hired in Sep-
tember and who, like the union installers, stayed with the
Company when it changed over to Mueller Missouri,' 6
never secured union membership.
Also around the end of September, Terry Crump and
Michael Martin, both union members, told Paul Brink-
mann that they did not want to work with nonunion em-
ployees and had been told by the Union that they did
not have to. Brinkmann spoke to June Mueller about the
problem, and they agreed not to pair union members
with nonmembers in the same crew. Later that day,
Brinkmann broached this subject on the telephone with
Earl, who told him "not to work Terry Crump or Dave
Meyers [sic] unless I had to because they were most
likely the two to cause him problems."' 6 In conse-
quence, Brinkmann did not schedule the two men for
several days, until he had no other choice but to use
them. 1 7
16 The last entries made on the Mueller Insulation pay records were
for the payroll period ending September 23 (G.C. Exh. 11); thereafter,
the installers appear on Mueller Missouri payroll records beginning with
the period ending September 30 (G.C. Exh. 6).
'1 Brinkmann exhibited uncertainty as to whether it had been Meyers
or Martin who had joined Terry Crump in making the segregation re-
quest; Terry clarified that his fellow petitioner had been Martin.
17 The complaint alleges, as a separate 8(aXI)(1) violation, Mueller's in-
struction to Brinkmann not to give work to the two employees "because
of their tendency to engage in union activities." On this issue, Earl testi-
fied that on one occasion he told Brinkmann not to work Terry because
the superintendent on the Delmar Gardens job had complained about
Terry's poor performance, but he denied that he had otherwise interdict-
ed work to any employee. I found Brinkmann a more impressive witness,
and I credit his account. I further think that any such statement made to
an employee (Brinkmann was not shown to have occupied a supervisory
Continued
762
MUELLER INSULATION CO.
On October 9, Earl called the installers together and
told them that because business was so bad, the new
company was, as testified by Brinkmann, "probably
going to quit doing new construction and commercial
and just do retrofit1 8 and make it a very small compa-
ny." All but two or three of the installers, union and
nonunion alike, were discharged on that day. The com-
plaint alleges that the discharge of six named installers
was unlawfully motivated.
It is not clear from Earl's testimony whether or not he
is saying that this development was part of the original
plan for Mueller Missouri. He testified, as to the reason
for the October 9 discharge: "There's no longer to keep
going on [sic] when you-when you keep taking losses
like that.... I couldn't afford the way the labor costs
were going any more." But although this implies that the
decision was made rather abruptly, he also testified, as
earlier stated, that it was intended that Mueller Missouri
would "give up our commercial insulation altogether."
In any event, Earl decided to give away to other con-
tractors, and withdraw existing bids on, commercial con-
struction projects, which was done, and to devote the
corporate energies only to retrofit insulation and the
other energy services earlier described. While he gave
away to other firms "a good half million dollars worth
of profitable work if I had a crew that could do it," he
"gave" to Mueller Missouri the Central Hardware ac-
count (presumably commercial insulation work) and also
gave to Mueller Missouri the remaining Mueller Insula-
tion residential work: "completions on jobs that were
started."
While the Mueller Missouri corporation may have
been imbued with a new "total energy" concept, there is
no convincing indication in the record that, after the
new entity came into being, the business performed any
work which differed from the regular insulation work
previously done. Earl's testimony as to what he "gave"
to Mueller Missouri indicates that the new firm obvious-
ly could have anticipated, after October 9, having to per-
form a certain amount of insulation installation. The only
type of work done by Mueller Missouri to which June
made reference at the hearing was insulation.'9 The pay-
position) would clearly have a tendency to restrain that employee's en-
thusiasm for engaging in concerted activity, and I therefore conclude that
the instruction unlawfully coerced Brinkmann, in violation of Sec. 8(aXl)
of the Act.
The complaint takes a narrow view of this incident; it alleges only that
Mueller's "advising" Brinkmann was a violation of Sec. 8(aXI), and the
allegation is grouped with two other 8(aX)) "advising" allegations in par.
5 of the complaint. There is some basis here for also finding a 'discrimi-
nation" violation of Sec. 8(aX3), based on the results of that advice. But,
as stated, the complaint does not raise that issue; the General Counsel's
brief does not consider it; and I am not convinced that it was fully litigat-
ed. It well may be that if Respondent had believed that an 8(aX3) viola-
tion was implicated, this aspect of the case would have been more thor-
oughly tried. I shall therefore limit my finding to the allegation contained
in the complaint.
of Insulating existing residential dwellings.
t0 While Earl testified that "the bulk of our sales now consists of the
whole-the whole thing, replacements, storms. ventilation systems, caulk-
ing, weatherstripping, day-night thermostats," June testified that windows
are installed by the manufacturer's employees, and the only payroll
records in evidence for the new company show no classification other
than "installer."
roll records for Mueller Missouri show that 10 employ-
ees (other than those discharged) were hired either short-
ly before or after October 9; they are all classified on
those records as "installers," just as the union employees
were.
2 0
Before considering the issue of whether the Act was
violated by the October 9 layoff, we might appropriately
consider at this point the legal status of Mueller Missouri
in relation to these proceedings.
The complaint caption and body name Respondents as
"Mueller Insulation Co." and "The Mueller Company of
Missouri, Inc." Although these companies are referred to
sometimes in the complaint collectively as "the Respond-
ent," the complaint also alleges a separate basis for as-
serting jurisdiction over Mueller Missouri, i.e., that
"[b]ased on a projection of its operations since Septem-
ber 17, 1981," that company "will perform services
valued in excess of $50,000, of which services valued in
excess of S50,000 will be performed in, and for, various
enterprises located in states other than the State of Mis-
souri." That assertion is denied in the answer filed by
Mueller Insulation and there is no evidentiary support
for it in the record. Whether, however, Mueller Insula-
tion is the proper party to deny an allegation which af-
fects Mueller Missouri is a nice question. Unless Mueller
Missouri is, in law, an alter ego of Mueller Insulation,
which the latter firm specifically denies, it would seem
that Mueller Insulation has no legal interest in making
such a challenge to the complaint insofar as it only af-
fects Mueller Missouri.
It may be that the failure of Mueller Missouri to file an
answer should be deemed an admission of all complaint
allegations which pertain specifically to it, including both
jurisdictional and substantive matters. The Board's Rules
and Regulations and Statements of Procedure, Series 8,
as amended, provide, in Section 102.20, "All allegations
in the complaint, if no answer is filed . . . shall be
deemed to be admitted to be true and shall be so found
by the Board, unless good cause to the contrary is
shown." That conclusion would, however, perhaps be
hypertechnical in the circumstances of this case, and,
moreover, would not be dispositive of other issues im-
plicit in the complaint, such as whether Mueller Insula-
tion is responsible for remedying violations by Mueller
Missouri.
For purposes of the 8(a)3) and (1) issues presented
here, the question raised by the complaint of whether
'0 The records in evidence show only activity until the end of 1981.
New employees are as follows: Robert Ernster, who began in the week
ending September 30 and continued to work until the week ending No-
vember 4; Robert Cooper, began period ending October 7 and left period
ending October 21; Allen Pullum, began period ending October 7 and lef
during period ending October 14; Robert Wehmeier, began period ending
October 7 and worked 8-1/2 hours; Marvin Purvis, began week ending
October 21 and apparently departed in December; John Wagner started
week ending November 11, and was still working at end of December;
Reynaldo Pens began in week ending November 18 and apparently left
in week ending December 16. Also shown are the three sons of the
Muellers: Gregg began work for Mueller Missouri in the week ending
October 14 (Earl testified that he called Gregg back from his honeymoon
to work) and worked through the end of the year; Chris worked 6 hours
in the period ending October 14 and 10 more hours in December; and
Tim worked several hours in December.
763
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Missouri is a "successor employer" to Insulation is rele-
vant only to whether Missouri is liable for remedying
any unfair labor practices committed by Insulation, see
Golden State Bottling Company, Inc., d/b/a Pepsi-Cola
Bottling Company of Sacramento v. N.LR.B., 414 U.S. 68
(1973).21 The issue of whether Missouri is an alter ego of
Insulation is not necessarily more directly related to the
merits of, as opposed to the remedy in, the case. Even if
Mueller Missouri is, in effect, the same business as
Mueller Insulation, that fact has no particular bearing on
whether the October 9 layoff was an unfair labor prac-
tice (except insofar as the continuation of essential identi-
ty might suggest that the change of form was a facade
intended to cloak an effort to escape the Union). The
real substantive question here is whether Mueller Mis-
souri, in discharging employees on October 9, violated
the Act, and that is a question which is not controlled by
its status as a successor or alter ego. Nonetheless, wheth-
er Mueller Missouri occupies any such status is relevant,
at least for remedial purposes, and should be decided.
It seems clear that Mueller Missouri is a continuation
of the business operation known as Mueller Insulation.
Earl and June Mueller effectively managed the day-to-
day operations of both companies. Earl owns all of the
stock of Insulation, and he and his wife own two-thirds
of the stock of Missouri, as well as two-thirds of the di-
rectorships, thus giving them effective control of the
latter corporation. The new company operates out of the
same offices as the old one, those premises being succes-
sively leased to both companies by a corporation called
E & J Investment Company; E & J was formerly owned
by Earl and June, and is now solely owned by June. Ac-
cording to June, the three trucks owned by Mueller In-
sulation were sold by that firm to a corporation called
MBM Energy Incorporated, which is owned by the two
Muellers and Norm Brown, and MBM has, in turn,
leased the trucks to Mueller Missouri.22
The record shows that the Muellers juggled corpora-
tions with practiced ease, and this transition is another
example. Despite whatever capital contribution the
Browns may have made to the new entity, 23 the
Muellers maintained effective governance of it, both
operationally and in their roles of majority stockholders
and directors. 24 And despite the claim of a broader
"total energy" concept for the new business, the record
gives no indication that it engaged in any field other than
2l If the complaint contained an 8(aXS) allegation relating to a failure
to bargain on the part of Mueller Missouri, then the "successorship" issue
would also take on a substantive dimension.
"s Either June is in error or the tangle of corporate shells has confused
Earl; he testified that Missouri purchased the trucks directly from Insula-
tion.
"s As discussed, that figure was never clarified. It is hard to believe
that it amounted to very much, judging from a January 31, 1982, balance
sheet for Mueller Missouri. Further. I agree with the General Counsel's
argument that the Muellers very likely contributed their fair share to the
corporation. An arrangement in which a stockholder contributes most or
all of the capital and is satisfied with only one-third of the stock is not
inconceivable, but it would be most extraordinary.
14 The Board has found an alter ego relationship even where the par-
ties controlling one corporation have no formal interest, but only a
"family" one, in the second. Crawford Door Sales Company, Inc., 226
NLRB 1144 (1976).
insulation, although eventually on a more restricted scale
than before.2 5
While it is possible that a broader range of activities
was anticipated for Mueller Missouri, that would not be
a sharp departure from the activity of Mueller Insulation,
which not only installed insulation, but, also, as Schultz
and June Mueller testified, had directly installed "sever-
al" window jobs in 1981. Whatever additional services
might have been planned by Mueller Missouri would not
have "so changed the nature of the enterprise and its job
situations as to cause it to be outside the bounds of legiti-
mate remedial area in respect to the discriminatees."
N.LR.B. v. Ozark Hardwood Company, 282 F.2d 1, 6
(8th Cir. 1960).26 See also Custom Manufacturing Com-
pany, et al., 259 NLRB 614 (1981).
I therefore conclude that, for remedial purposes,
Mueller Missouri was out an extension, in slightly altered
garb, of Mueller Insulation. The principal effect of this
conclusion is to hold Missouri jointly and severally liable
for the June layoff and the discharge of Crump in Sep-
tember, and to make Insulation accountable for the Octo-
ber discrimination hereafter found.
The General Counsel argues that the changeover from
one corporate form to the other was the first step of a
two-part scheme to oust the Union, the second step
being the discharge of the installers on October 9. The
first part of the theory seems probable to me. In its June
layoff, Respondent Mueller Insulation had evidenced a
desire to achieve nonunion status by moving its employ-
ees to another payroll. Three months after that effort
failed, a new corporation, owned and managed by the
Muellers, using the same offices and equipment as before,
and engaged in the same kind of business, came into
being. I can perceive no reason for creating the new
entity, the purposes of which could have been equally
well-served by continuing Mueller Insulation, except an
unlawful one.
The only arguable flaw in this approach is that the
union installers were in fact temporarily retained at the
time of the transition. It might be thought, however, that
the Muellers would have viewed a wholesale dispatch at
the time of transition as too blatant and obvious an act,
hoping, instead, to achieve their purpose in less dramatic
stages.
A finding on this point is not, however, necessary to a
conclusion that Section 8 (aX3) was violated here. Nei-
ther the complaint nor the General Counsel's brief as-
serts an 8(aX5) violation or seeks a bargaining order. The
only point put in issue by the amended complaint is
a' June testified that she "liquidated all the assets" of Mueller Insula-
tion in order to pay creditors. The only detail given, however, was that
"we sold office furniture." It seems doubtful that very much furniture
was sold, since the business continued in operation.
2s The court also stated:
In National Labor Relations Act perspective, it is also possible for a
business to have the significance and effect of a disguised continu-
ance of the old employer, without ownership identity necessarily ex-
isting, where such business allows itself to become a substitute in car-
rying on the operations, or some of them, of the old employer, under
a relationship serving to benefit the latter's owners and intended as
one of cooperation with them in evading the consequences of the
unfair labor practices committed." [Id., at 5.]
764
MUELLER INSULATION CO.
whether the discharge of six installers on October 9, and
the failure to reinstate them later, violated the Act.
My conclusion is that those actions were violative.
Even if Mueller Missouri was not deliberately established
as a device for getting out from under the Union, and I
think that it may have been, it certainly appears that the
October 9 discharges were made with an eye to avoiding
entanglement with the Union. In so finding, I note that,
as Earl testified, it appears that he intended on October 9
to reduce the volume of his operation, an intention cor-
roborated by the work farmed out to other contractors
and the bids withdrawn. The payroll records for the last
2 months of 1981 show a greatly reduced workload.
There is no basis in this record for attributing that de-
crease to any cause other than a legitimate desire to di-
minish the scope of the business. It is possible, of course,
that the Muellers intended to deliberately depress the
workload, and get rid of the employees, until some
future time at which it would be considered safe to re-
build the business and staff the work force with non-
union employees. There is, however, no historical cr
other evidence to support such a contention27 and the
General Counsel urges no such theory.2 8
Nonetheless, the method of selection used by Mueller
Missouri for retaining and hiring employees after Octo-
ber 9 indicates a calculated desire to avoid employing
union members. The record shows, as earlier set out,
that, as of and after October 9, Respondent retained and
hired only nonunion employees. Only two employees,
both nonunion, were kept on the payroll on October 9:
Robert Ernster, who had been hired in the payroll week
ending September 30 and continued to work until the
week ending November 4; and Robert Cooper, who
began in the period ending October 7 and was retained
until the week ending October 21. 29 The Muellers' son
Gregg began in the week of the discharges and kept
working; Marvin Purvis, John Wagner, and Reynaldo
Pena were all hired subsequent to October 9 and per-
formed fairly substantial amounts of work thereafter.
The explanation given by Earl Mueller for not retain-
ing or rehiring any of the union people who were dis-
charged on October 9 itself seems to legally constitute an
admission of violation: "They made it pretty clear that
they didn't want to work with nonunion people and
there's no need to bring union people in when we're not
doing anything and there really wasn't enough work to
worry about." The unspoken premise here, of course, is
that there would definitely be nonmembers on the pay-
roll. The fact is that only two of the union installers,
Terry Crump and Michael Martin, had registered any
protest at all against working with nonunion employees,
a" The case was heard in February, only 4 months after the mass dis-
charge.
2 On brief. the General Counsel takes note of the reduction of work
after October 9 and simply argues: 'The mere fact that not all of Re-
spondent's employees would have continued to work on a regular basis
on October 9 relates only to remedy."
s9 Oddly, at the hearing Earl Mueller testified that he had "terminated
all employees" on October 9. Earl was also asked at the hearing why he
did not recall the nonmembers, as well as the members, who were laid
off on October 9, and his reply was that he wanted to "try to start fresh
and start from scratch and hopefully try to rebuild and make something
of it." But the fact is, as discussed above, two nonmembers were retained
on October 9, thus spoiling the fresh start ab inirio.
and Mueller had no sound basis for believing that any of
the union members, including Crump and Martin, would
prefer not to work at all rather than to work alongside
nonmembers. To reject union members for employment
on the basis of such a fragile assumption is, in and of
itself, an unlawful discrimination against them. Sossamon
Electric Company and Sossco Building System, Inc., 241
NLRB 324, 327 (1979):
George, Jr.'s admission that he did not offer any of
the Sossamon employees positions with Sossco be-
cause he did not believe that union members would
accept work with a nonunion company, without
ever asking the employees whether they would, evi-
dences this intent and, independently, constitutes
discrimination in violation of Section 8(a)(3).
But I do not, in any event, believe that Mueller chose
not to work his former employees for the reasons
given. 30 It seems clear, rather, that he wished to avoid
any union taint, and the possibility of having to pay
union scale, in the revamped organization. While em-
ploying and hiring new and presumably untested em-
ployees such as Ernster, Cooper, Purvis, Wagner, and
Pena, he rejected some obviously valued employees,
such as David Meyer (to whom Earl had, in August or
September, given two wage raises in 1 day because
Meyer was "a young, hard-working man . . . [who] was
really busing his hump") and Bruce Smith (who was,
Earl said, "a good insulator. He was always on time, he
always worked hard all day long, and his average was
always the same . . . I could live with ten Bruce
Smiths.").
On the record evidence of the amount of work per-
formed by Respondent after October 9, I cannot assume
that most of the installers, even in normal circumstances,
would have been retained on the payroll. Nonetheless,
because I am satisfied that the sole criterion used for se-
lecting employees for retention on October 9, and for
hiring thereafter, was union membership, it is fair to say
that some of the discharges that day, and some of the
subsequent failures to rehire, violated the Act.
There is a problem with respect to the identity of the
discriminatees who may benefit from this ruling. The
complaint names five union members (Terry Crump, Mi-
chael Martin, Bruce Smith, David Meyer, and Tracy
Hahn)3s and one nonmember, Larry Craden. Why
Craden is included in the complaint, but other nonre-
tained nonmembers Allen Pullum and, perhaps, Garlon
Brown3 2 are excluded, is unexplained.
I see no reason I find that Craden was the subject of
discrimination. Some nonmembers were retained on Oc-
'o The other reason-that there was not enough work to do-is appar-
ently true as to all of the employees, but not as to some of them.
sl As earlier noted, the name of Richard Fleetwood is also alleged, but
the record shows that Fleetwood was discharged prior to October 9.
s' Brown may have left Respondent's employ by October 9; the last
wage payment to him was for the period ending October 7. Pullum is
shown as having worked 10 hours in the week ending October 14, the
same week in which the employees were discharged. According to the
unobjected to hearsay testimony of Terry Crump, nonmember David
Rennels worked until October 12, when he quit, but June said that he
was discharged on October 9.
765
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tober 9, earning no more than Craden, and some non-
members were let go. There does not appear to be any
basis for thinking that Craden's release, or subsequent
failure to be recalled, was related to union consideration.
I shall therefore limit the class of discriminatees to the
other five employees named in the next preceding para-
graph. The task of sorting out the losses suffered by all
or some of them will have to await the compliance stage
of this proceeding. 33
CONCLUSIONS OF LAW
1. Respondents Mueller Insulation Co. and The
Mueller Company of Missouri, Inc., are employers en-
gaged in interstate commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, and are alter egos of the
same business entity.
2. Carpenters District Council of Greater St. Louis,
Local No. 73, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By constructively discharging Larry Crump, Terry
Crump, Michael Martin, Bruce Smith, Richard
Fleetwood, and David Meyer, on June 8, 1981, until on
or about June 22, 1981; by discharging Larry Crump on
September 4, 1981; and by discharging Terry Crump
and/or Michael Martin and/or Bruce Smith and/or
David Meyer and/or Tracy Hahn on October 9, 1981,
and not reinstating them, or any of them, to their former
positions thereafter, Respondents violated Section 8(aX3)
and (1) of the Act.
4. By, on June 8, 1981, informing employees that they
could only work under nonunion conditions; by, on or
about July 24, 1981, implying that Respondent desired
reprisal against an employee for causing union problems;
and by, on or about September 28, 1981, instructing that
employees not be given work because of their tendency
to support a union, Respondents violated Section 8(a)(1)
of the Act.
5. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
I shall recommend that Respondents be ordered to
cease and desist from the unfair labor practices found,
as It would appear that, at least for the remainder of 1981 (the only
period for which records were introduced in this proceeding), the total
potential amount of work available to the discriminatees was small
Cooper worked perhaps only 24 hours after October 9; Ernster worked
about 3-1/2 full weeks after October 9; Purvis worked, starting the week
ending October 21, about 280 hours in 9 weeks; Wagner worked about
280 hours in 8 weeks beginning in the week ending November 11; Pensa
worked, beginning in the week ending November 18, perhaps 140 hours
in 5 weeks; and Gregg Mueller worked, starting right after the dis-
charges, about 450 hours in 12 weeks. It seems appropriate to infer that,
absent unlawful considerations, no more than three union employees (in
place of Cooper, Ernster, and Gregg Mueller) would have been retained
on October 9, and the others lawfully released. However, it would also
be appropriate to find that Respondent discriminated against other mem-
bers of the union group in making later hires, specifically the hire of
Wagner in the week ending November 11 and Pensa in the week ending
November 18 (both of them having been hired several weeks subsequent
to the filing of the 8(aX3) charge on behalf of the union members). I do
not refer to Purvis because he probably replaced Cooper in the week
ending October 21.
and to take affirmative action designed to restore the
status quo ante.
Compensation for the wages and other benefits lost by
the six employees who did not work from June 8 until
on or about June 22, plus interest computed as described
below, is in order. In addition, a reinstatement and back-
pay order is proper for at least some of the employees,
but I cannot, on this record, identify which ones.
At present, it seems appropriate to order that Re-
spondent should be required to offer immediate and full
reinstatement to Larry Crump and the five employees
discharged on October 9, 1981, to the extent that they
presently have insulation installer or similar positions on
their payrolls. On this record, it seems fair to say that, in
ordinary circumstances, Larry Crump would have been
retained in preference to the other installers, so it is ap-
propriate that he be accorded first priority for any such
position. In the absence of any better yardstick, offers of
reinstatement to any remaining positions should be made
by seniority of employment. Such reinstatement shall be
to the former or substantially similar positions of the dis-
criminatees, without prejudice to their seniority and
other rights and privileges, dismissing if necessary any
employees presently employed by Respondents. Larry
Crump and the other five employees should also be
made whole for loss of pay and other benefits, Crump
for the period from September 4, to October 9, 1981, and
Crump and the other five employees for such periods of
time after October 9, 1981, as they might reasonably
have been expected to be employed, as earlier discussed.
Backpay and other benefits, less interim earnings, shall
be paid as prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), plus interest as set forth in Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962), and Florida
Steel Corporation, 231 NLRB 651 (1977). The liability of
the two Respondents is joint and several.
Finally, the customary notices should be posted.
Upon the basis of the entire record, the findings of
fact, and conclusions of law made here, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER3 4
The Respondents, Mueller Insulation Co. and The
Mueller Company of Missouri, Inc., successor employer
and/or alter ego St. Charles, Missouri, their officers,
agents, successors, and assigns, shall:
(a) Discharging or otherwise discriminating against
employees in regard to their hire, tenure of employment,
or other terms and conditions of employment, in order to
discourage membership in Carpenters District Council of
Greater St. Louis, Local No. 73, or any other labor or-
ganization.
(b) Informing employees that they can work only
under nonunion conditions; implying to employees a
S' In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
766
MUELLER INSULATION CO.
desire for reprisal against employees for causing prob-
lems with the Union, or any other labor organization; in-
structing that employees not be given work because of
their tendency to support the Union, or any other labor
organization.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of rights guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Larry Crump and/or Terry Crump and/or
Michael Martin and/or Bruce Smith and/or David
Meyer and/or Tracy Hahn, if Respondents have not al-
ready done so, immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority and other rights and privileges, and make them
and Richard Fleetwood whole for any loss of earnings
they may have suffered by reason of Respondents' un-
lawful discrimination against them, in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available 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 amounts of backpay due
under the terms of this recommended Order.
(c) Post at their St. Charles, Missouri, offices, copies of
the attached notice marked "Appendix."3 5 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by Respondents' rep-
resentatives, shall be posted by Respondents immediately
upon receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondents to ensure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
35 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
767