Howard's Sheet Metal, Inc.

National Labor Relations Board - Board Decisions

Feb 22, 2001

333 N.L.R.B. 361 (N.L.R.B. 2001)

HOWARD’S SHEET METAL, INC. 361
Howard’s Sheet Metal, Inc. and Sheet Metal Work-
ers’ International Association, Local Union 24.
Case 9–CA–37162
February 22, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND
WALSH
On June 20, 2000, Administrative Law Judge Arthur J.
Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and the Charging Party filed answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Howard Sheet Metal, Inc.,
Baltimore, Ohio, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.

Eric J. Gill and Andrew L. Lang, Esqs., for the General Coun-
sel.
Jonathan P. Sturgill and John D. Meyer, Esqs. (R. T.
Blankenship & Associates), of Greenwood, Indiana, for the
Respondent.
Jerry A. Spicer, Esq. (Snyder, Rakay & Spicer), of Dayton,
Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This
case was tried in Columbus, Ohio, on March 15, 2000. The
charge was filed November 4, 1999, and the complaint was
issued January 31, 2000.

1 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard 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.
The Respondent has also excepted to the judge’s conduct at the hear-
ing, asserting that it evidenced bias and prejudice. On our full consid-
eration of the entire record, we find no evidence that the judge pre-
judged the case, made prejudicial rulings, or demonstrated bias against
the Respondent in his conduct at the hearing or in his analysis and
discussion of the evidence.
2 As to the discharge of employees Larry Manter and David Pope,
Member Hurtgen believes that the General Counsel’s prima facie show-
ing of knowledge and animus is weak. However, he recognizes that
there is evidence of both. Further, he finds that the Respondent’s ex-
planations for the discharges are not credible, and this factor assists the
General Counsel in establishing the violation.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and the Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, Howard’s Sheet Metal, Inc., a corporation, is a
sheet metal contractor with a facility in Baltimore, Ohio, where
it annually purchases and receives goods valued in excess of
$50,000 directly from suppliers outside of the State of Ohio.
Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union, Sheet Metal Workers’ International
Association, Local Union 24, is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview
On Monday, November 1, 1999, Respondent terminated em-
ployees Larry Pope and David Manter. The General Counsel
alleges that Pope and Manter were discharged for engaging in
union activities. In its answer, Respondent denies that it dis-
charged these two employees; it contends that it laid Pope and
Manter off for lack of work. However, at the hearing, Respon-
dent contended that it selected them for layoff because they
were unsatisfactory employees. Moreover, it hired two new
employees just prior to the alleged layoff and hired or recalled
another several weeks later.
Respondent concedes that it was aware that Pope and Manter
had talked to Union Organizer Scott Hammond prior to their
layoff. However, it alleges that it was aware that many other
employees had also talked to Hammond and that there was
nothing that distinguished the union activity by Pope and
Manter from that of other employees. Respondent contends
that it was unaware of the fact that 6 days before their layoff
Pope and Manter met with Hammond at a Bob Evans restaurant
in Columbus, Ohio, and signed union authorization cards.
B. Chronology
1. Larry Pope’s and David Manter’s careers with Respondent
a. Larry Pope
Larry Pope worked for Howard’s Sheet Metal on and off be-
ginning in March 1989. Respondent concedes that he is an
excellent mechanic. On the other hand, it has established that
he is a very difficult person for other employees to work with.
Indeed, a number of employees requested at various times that
they not have to work with Pope. In 1990, Respondent laid
Pope off for 9 months to a year because of his attitude. Re-
spondent removed Pope from a jobsite in the summer of 1998,
after Richard Halvorsen, a mechanical contractor, complained
that Pope had been disrespectful and cursed at other individu-
333 NLRB No. 49
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 362
als.2 In May 1999, Howard’s removed Pope from another job-
site after another contractor’s project executive, Steve Bestard,
complained that he found Pope working without his hardhat.
After these events, in June and early July 1999, Respondent
performed written evaluations of its field employees. Although
Pope’s evaluation was not as good as some other employees, he
was given a $1-per-hour raise, without asking for one. Some
employees with better evaluations received no pay increase;
other employees also received a $1 raise and still others re-
ceived a 50-cent-per-hour increase. The raises appear to be
based on Respondent’s assessment as to whether the employee
was underpaid, rather than being tied to his performance ap-
praisal.
In October, 2 weeks before Pope was laid off, Respondent’s
operations manager, Mike Stanley, told him that he would be
able to transfer to a project in Olentangy, Ohio, when it
started.3 This job was closer to Pope’s home than the projects
on which he was then working. Respondent’s work on the
Olentangy project (also called the Oak Creek School) began
prior to December 3, 1999.
b. David Manter
David Manter worked for Respondent as a sheet metal
worker from April 1995 to November 1, 1999. During this
period he was laid off for 2 months in 1996 and quit twice to
accept jobs with another employer, Engineering Excellence. In
1998, Manter worked for Engineering Excellence for 1 month.
In 1999, he worked for this company for 1 day. On both occa-
sions, Manter was offered a salary increase of $1 per hour to
return to work for Respondent.
Manter has served as leadman on five to seven of Respon-
dent’s projects. On June 25, 1999, David Manter received a
performance evaluation which rated his work as good in 11
areas and fair in 4 others. He was given a $1-per-hour-salary
increase, either from $15 per hour to $16 per hour, or from $16
to $17 (see Tr. 90. GC Exh. 6). Several employees, who con-
tinued working for Respondent after November 1, 1999, re-
ceived less favorable ratings than Manter. Seth Held received
good ratings in seven categories and fair ratings in eight. Ben
Bukky received an excellent rating for attendance, but also
seven good ratings and eight fair ratings. Steve Held and Bob
Myers received 10 good ratings and 5 fair ratings.4

2 I do not credit Halvorsen’s testimony that Pope was removed from
another Norris Air jobsite in 1999. His testimony in this regard is
inconsistent with the testimony of Respondent’s operations manager,
Mike Stanley. Moreover, Halvorsen’s recollection of the events re-
garding Pope was very hazy.
3 Pope’s testimony regarding Stanley’s discussion with him of the
Olentangy project is uncontradicted.
4 Seth Held and Myers were both sheetmetal workers, as was
Manter. Operations Manager Mike Stanley described Bukky as
sheetmetal/pipefitter’s helper. It is unclear as to how his duties differed
from Manter’s, if they did in any respect. Stanley described Steve Held
as a HVAC service technician. However, Steve Held’s evaluation lists
him as “Field/sheetmetal” as does Manter’s. Moreover, Held’s time-
cards indicate that much of the work he performed was indistinguish-
able from the work performed by Manter. For example, the week end-
ing October 3, 1999, Steve Held worked 25 hours at the Newark, Ohio
library project. The week ending October 15, he worked 40 hours on
2. Union activity and the hiring of Ricky Lowe and
Gerald Phillips
In September and October 1999, Local 24 Organizer Scott
Hammond visited a number of Respondent’s jobsites. On one
project in September, Hammond approached Larry Pope and
Seth Held. He gave them business cards and told them to call
him if they had any questions about the Union.
Pope saw Hammond on another jobsite when he was there
only with Operations Manager Stanley. Pope did not talk to
Hammond on this occasion. That evening, Stanley told Pope
that he was to advise Stanley if he saw Hammond on the job-
site.
In October, Hammond approached David Manter and about
seven other employees while they were on break and handed
them his business card. On Sunday evening, October 24,
Manter spoke with Hammond on the telephone and arranged to
meet with him at the Bob Evans Restaurant in Columbus on
Tuesday, October 26. Hammond called Pope and asked him to
join him and Manter on the 26th.
Pope told fellow employee Seth Held that he was going to
meet with Hammond. Manter told fellow employee Jason Keel
about the meeting after it occurred.5 The day before the meet-
ing, October 25, Ricky Lowe, an experienced sheet metal
worker, began working for Respondent on the Lakewood High
School project with Manter. It has not been established that
Respondent hired Lowe with the intention of replacing any
employees who were still working for it on October 25. If
Lowe was hired to replace anyone it may have been Joseph
Applegate, who had worked for Respondent in the field and in
its shop since May 1999. Applegate’s employment with Re-
spondent ended the week of October 18–22, 1999, for reasons
that do not appear in the record. (See GC Exh. 7, Respondent’s
timecards).6
Respondent hired Lowe at $17 per hour. Mike Stanley told
Lowe that “if he proved to be everything he told me he was,”
Stanley would give him a raise after 60 days. On Friday, Octo-
ber 29, Respondent interviewed and hired Gerald Phillips, an
employee with similar experience to Manter, at $15 per hour.
Phillips did not start work until November 8. On November 12,
Travis Neff was either rehired or recalled to work by Respon-

sheet metal installation projects. The week ending October 22, Held
performed 4 hours of warranty work, 8 hours of what appears to be
laborer’s work, and 20 hours of sheet metal installation.
5 Manter’s testimony that he told Keel about the meeting is uncon-
tradicted. Respondent contends at p. 11 of its brief that I should ad-
versely infer from the General Counsel’s failure to call Keel as a wit-
ness, that Keel did not tell Respondent about the meeting. There is no
reason to assume that Keel, a rank-and-file employee who still works
for Respondent, would be favorably disposed to the General Counsel
and/or the charging party. Thus, drawing such an inference would be
inappropriate, Goldsmith Motors Corp., 310 NLRB 1279 fn. 1 (1993).
Moreover, assuming that Keel did not report Manter’s meeting with
the Union to management, Respondent may have learned of it from
other rank and file employees—particularly since at least one em-
ployee, Seth Held, knew that Pope, who was not universally popular,
was one of the employees meeting with Hammond.
6 The GC Br at p. 12 is incorrect in indicating that Applegate worked
40 hours for Respondent during the week ending October 29. There is
no timecard for Applegate for that week.
HOWARD’S SHEET METAL, INC. 363
dent. Neff had worked in the field for Respondent from late
1998 until February 6, 1999. He did not work for Howard’s
between February 6 and November 12, 1999. Beginning No-
vember 12, Neff worked for Howard’s steadily through the
week ending December 17, 1999, exclusively in the fabrication
shop (see GC Exh. 7).
a. The layoffs
On Sunday evening, October 31, Pope called Operations
Manager Mike Stanley and asked him where he was working
the next day. Stanley told Pope there was no work for him
because work was slow. When Pope pressed Stanley for an
explanation, Stanley merely repeated that work was slow.
On November 5, Pope went to Respondent’s shop to return
some equipment and pick up his check. While he was there
Pope again asked Stanley why he had been laid off. Stanley
replied that work was slow. Pope responded that the explana-
tion made no sense because Howard’s had just hired Lowe.
Stanley replied that Lowe had 23 years of experience.
Pope then pointed out that a number of other employees had
less experience than he did. Stanley told him that he didn’t owe
Pope an explanation for the layoff and that he was aware that
since the layoff Pope had been saying nasty things about him.
When Pope asked how long the layoff would be, Stanley re-
plied that it would be indefinite.
David Manter was unable to contact Stanley on October 31.
He called Stanley on the morning of November 1, and was told
that there was no work for him, and that he should call again
the following Sunday. Manter drove out to the Lakewood High
School project to ask Stanley why he had been laid off. Stanley
replied to Manter’s repeated inquiries by telling him that work
was slow. Manter asked whether the layoff was permanent or
temporary. Stanley replied that most likely it was permanent.
On the other hand, Stanley concedes that he indicated to
Manter that he would recall him when work picked up. More-
over, in December 1999, during the investigation stage of this
case, Respondent took the position that both Pope and Manter
would be recalled when work permitted.
b. Respondent’s proffered reasons for laying off Larry Pope
and David Manter
Respondent’s president, Howard Hatmaker, testified that he
laid off Pope and Manter in November 1999, for the following
reasons:

[W]e had wanted to improve our work force and we
had determined that Larry and Dave weren’t fit for our
Company . . . .
And so we had an opportunity to hire two people that
were, that we thought they were, and you take a chance or
gamble on anyone you hire but is proven to be very suc-
cessful, the move that we made and we have a responsibil-
ity to all the other employees, too, they have to make a liv-
ing too. So, we can’t let two people destroy it for them.

Tr. 229.
It is thus obvious from the record that Pope and Manter were
not laid off; they were fired and replaced by other employees.7
Moreover, Hatmaker’s explanation suggests that he fired Pope
and Manter because of their union activities. While Pope had a
long history of being difficult to work with, and was thrown off
jobs in 1998 and May 1999, there is nothing in this record that
even remotely suggests that Manter ever did anything that
threatened to “destroy” anything for other employees—other
than demonstrate interest in the Union.
While the Company vaguely suggests that Manter was emo-
tionally unstable and had problems with other employees on
occasion, it essentially claims it fired him because it became
aware that he was looking for another job. Mike Stanley testi-
fied that:

Well, other employees had told me and I actually got a
phone call from a company that Dave was trying to go to
work for and I knew Dave was hunting a job and he had
quit me twice right in, right in the middle of a job, when I
needed him real bad. [H]e’d quit me before and, you
know, I knew it was inevitable . . . .
Dave worked good with others…he’s real high strung
and I told him that he actually needed to get some profes-
sional help to try to deal with these emotions . . . .

Tr. 237.
I conclude that this proffered reason for Manter’s termina-
tion is false. I credit Manter’s testimony that he was not look-
ing for another job at the time he was discharged. More impor-
tantly, I do not credit Stanley’s testimony that he received an
inquiry from another employer just prior to terminating Manter.
Stanley’s explanation is sparse on details, such as the name of
the company and when he received the call. Moreover, it is
belied by the fact that Stanley never asked Manter if he was
seeking other employment prior to terminating him. Further-
more, when Manter asked him for an explanation for his termi-
nation on November 1, Stanley did not tell him that the reason
was he had heard that Manter was looking for another job.
Stanley merely told Manter that work was slow.
There is absolutely no evidence that Ricky Lowe, Gerald
Phillips, or Travis Neff were superior employees to Manter.
Respondent suggests it hired Lowe because of his years of ex-
perience in the sheet metal trade. However, both Hatmaker and
Stanley made it clear that they were taking a chance by hiring
Lowe. The only thing Respondent knew about Phillips was that
Lowe knew him and knew he was looking for a job. The in-
formation of record about Neff is that he left Respondent’s
work force for 9 months in 1999. In the final analysis, there is
no credible nondiscriminatory reason for Respondent’s
termination of David Manter.8 There is also no
nondiscriminato Respondent recalled or ry explanation for why
7 It may be that Pope and Manter were replaced by Phillips and Neff,
rather than by Phillips and Lowe.
8 Respondent’s timecards show some fluctuation in the hours worked
by its employees in late 1999 and a slight drop in the number of hours
worked in November compared with October 1999. However, this
fluctuation does not establish an economic layoff in view of Respon-
dent’s hiring of Gerald Phillips and the hiring or recall of Travis Neff.
Moreover, the number of hours worked each week in December 1999
was generally as great or greater than in October. In this regard the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 364
explanation for why Respondent recalled or rehired Travis Neff
on November 12, 1999, rather than recalling Manter.
b. Events after the termination of Pope and Manter
Union Organizer Scott Hammond continued to visit jobsites
on which Respondent’s employees were working through early
2000. On several jobsites he has been asked to leave by Re-
spondent’s employees. On two occasions since February 1,
2000, Seth Held told Hammond that he had been instructed to
tell him to leave.9
Analysis
In order to prove a violation of Section 8(a)(3) and (1), the
General Counsel must show that union activity has been a sub-
stantial factor in the employer’s adverse personnel decision. To
establish discriminatory motivation, the General Counsel must
show union or protected concerted activity, employer knowl-
edge of that activity, animus, or hostility toward that activity
and an adverse personnel action caused by such animus or hos-
tility. Inferences of knowledge, animus, and discriminatory
motivation may be drawn from circumstantial evidence as well
from direct evidence.10 Once the General Counsel had made an
initial showing of discrimination, the burden of persuasion
shifts to the employer to prove its affirmative defense that it
would have taken the same action even if the employee had not
engaged in protected activity. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (lst Cir. 1981).
In the instant case, Larry Pope and David Manter engaged in
union activity. They talked to a union organizer, took his busi-
ness card, met with the organizer and signed union authoriza-
tion cards. Respondent concedes that it was aware that Pope
and Manter had talked to the organizer, but denies that it was
aware of the meeting or that they signed authorization cards.
There is no direct evidence that Respondent was aware of the
meeting or that the termination of Pope and Manter was dis-
criminatorily motivated. Moreover, there is only a little direct
evidence of antiunion animus. Mike Stanley told Pope to let
him know whenever he saw the organizer on a jobsite and since
about January 1, 2000, Respondent’s employees have been
instructed to tell the organizer to leave any jobsite on which
they encounter him. However, Howard Hatmaker’s assertion at
trial that he terminated David Manter to prevent him from de-
stroying his company strongly suggests antiunion animus in the
absence of any legitimate nondiscriminatory concerns that
could arise from Manter’s continued employment with Respon-
dent.
Moreover, I infer that Respondent knew or surmised that
Pope and Manter were interested in the Union and may have
known that Pope and Manter had met with the organizer on

.
total number of hours worked the week ending October 29 was 675
hours, rather than 715 hours as stated in the chart in the GC Br. at p. 13.
9 I credit Hammond’s testimony in this regard. Held testified that
he could not recall whether he had made such a statement. I conclude
that Held would remember whether or not he made such a remark,
particularly since Hammond testified that this occurred within the 6
weeks prior to the hearing.
10 Flowers Baking Co., 240 NLRB 870, 871 (1979); Washington
Nursing Home, Inc., 321 NLRB 366, 375 (1966); W. F. Bolin Co. v.
NLRB, (70 F.3d 863 (6th Cir.1995).
October 26. Also, I infer that the discharges were discriminato-
rily motivated.

Discriminatory motivation may reasonably be inferred from a
variety of factors, such as the company’s expressed hostility
towards unionization combined with knowledge of the em-
ployees’ union activities; inconsistencies between the prof-
fered reason for discharge and other actions of the employer;
disparate treatment of certain employees with similar work
records or offenses; a company’s deviation from past prac-
tices in implementing the discharge; and proximity in time be-
tween the employees’ union activities and their discharge.

W. F. Bolin Co. v. NLRB, supra at 871.
Findings of antiunion animus and discriminatory motive may
also be predicated on the pretextual reasons advanced for a
personnel action. It is well settled that when a respondent’s
stated motives for its actions are found to be false, the circum-
stances may warrant an inference that the true motive is an
unlawful one that the respondent desires to conceal. Fluor
Daniel, Inc., 304 NLRB 970, 971 (1991); Fast Food Merchan-
disers, 291 NLRB 897, 898 (1988), Shattuck Denn Mining
Corp., 362 F.2d 466, 470 (9th Cir. 1966).
Indeed, in a very recent case arising under the Age Discrimi-
nation in Employment Act, the Supreme Court reiterated the
probative value of an employer’s pretextual reasons for a per-
sonnel action in proving discrimination.

Proof that the defendant’s explanation is unworthy of cre-
dence is simply one form of circumstantial evidence that is
probative of intentional discrimination, and it may be quite
persuasive . . . In appropriate circumstances, the trier of fact
can reasonably infer from the falsity of the explanation that
the employer is dissembling to cover up a discriminatory pur-
pose. Such an inference is consistent with the general princi-
ple of evidence law that the fact finder is entitled to consider a
party’s dishonesty about a material fact as “affirmative evi-
dence of guilt.” . . . Moreover, once the employer’s justifica-
tion has been eliminated, discrimination may well be the most
likely alternative explanation, especially since the employer is
in the best position to put forth the actual reason for its deci-
sion.

Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000).
The instant case is somewhat unusual in the extent to which
the General Counsel’s case rests on pretext. However, I find
that there is no credible nondiscriminatory explanation for the
termination of David Manter. In determining Respondent’s
motivation for discharging Pope, it is appropriate to consider
the discharge in the context of the unfair labor practice commit-
ted in discharging Manter on the same day, NLRB v. DBM, Inc.,
987 F.2d 540 (8th Cir. 1993); Reeves Distribution Service, 223
NLRB 995, 998 (1976). Having concluded that Respondent
discharged Manter for union activities, I also find that it would
not have discharged Larry Pope either—but for his union
activities
The fact that Ricky Lowe began working for Respondent on
October 25, the day prior the meeting between Pope, Manter
and the union organizer, cuts several ways with regard to Re-
spondent’s motivation in this case. Although at first blush it
HOWARD’S SHEET METAL, INC. 365
suggests that the decision to fire Pope was made prior to Octo-
ber 26, this is not necessarily true. Respondent has not estab-
lished that Lowe was initially hired to replace Pope. If that
were the case, Pope would most likely have been laid off on
October 25. If Lowe was hired to replace anyone, it is just as
likely that he was hired to replace Joseph Applegate, whose
employment ended the week ending October 22. Respondent
knew very little about Lowe’s qualifications—other than the
fact that he had been a sheet metal worker for a long time. It’s
guarded approach to Lowe, i.e., the 60-day trial period, indi-
cates that it had no basis for concluding that Lowe would be a
superior employee to either Pope or Manter.
It has not been established that Respondent was planning any
layoffs until October 31. Moreover, there is no indication that
Respondent decided to lay off Pope and Manter until that date.
The timing of the decision to discharge Pope and Manter so
soon after their meeting with the organizer thus suggests dis-
crimination. Discrimination is also inferred from the fact that
two weeks before his discharge, Stanley was telling Pope he
could work on the Olentangy job.
Pope’s misconduct on jobsites provides no support for the
decision to discharge him. The last specific incident occurred
6–7 months prior to the discharge and afterwards Respondent
had given Pope a raise on its own initiative. The Company was
obviously interested in retaining Pope as of July 1. As to
Pope’s abrasive personality, the record indicates that he has
always been difficult to work with and that he was no more
difficult to work with in November 1999, than he had been for
the 10-1/2 years he had worked for Respondent.11
In addition to the pretextual reasons proffered, Respondent’s
shifting explanation for the termination of Pope and Manter
supports an inference of discrimination. The Board has long
held that when an employer vacillates in offering a rational and
consistent account of its actions, an inference may be drawn
that the real reason for its conduct is not among those asserted,
Black Entertainment Television, 324 NLRB 1161 (1997);
Sound One Corp., 317 NLRB 854, 858 (1995). In the instant
case, Respondent denied in its answer that it discharged Pope
and Manter and then essentially argued that they were replaced
because they were unsatisfactory employees. Additionally,
Howard’s position during the investigation, that Pope and
Manter were eligible for recall, is inconsistent with its position
at trial, as well as its unexplained hire or recall of Travis Neff
on November 12.
CONCLUSION OF LAW
Respondent violated Section 8(a)(3) and (1) in terminating
the employment of Larry Pope and David Manter on November
1, 1999.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and

11 Respondent also has a practice of calling problem employees into
the office for a “closed-door” meeting with Hatmaker and Stanley.
Neither Pope nor Manter had been summoned to such a meeting, nor
had they been given any indication that their work or attitudes were
unsatisfactory at any time proximate to their discharge.
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged Larry
Pope and David Manter, it must offer them reinstatement and
make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
The Respondent, Howard’s Sheet Metal, Inc., Baltimore,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting Sheet Metal Workers’ International As-
sociation, Local Union 24, or any other union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Larry
Pope and David Manter full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(b) Make Larry Pope and David Manter whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the remedy
section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges and
within 3 days thereafter notify the employees in writing that
this has been done and that the discharges will not be used
against them in any way.
(d) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including
an electronic copy of the records if stored in electronic form,
necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at its
Baltimore, Ohio facility copies of the attached notice marked
“Appendix.”13 Copies of the notice, on forms provided by the
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 366
Regional Director for Region 9, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since November 1, 1999.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Sheet Metal Workers’ International
Association, Local Union 24, or any other union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Or-
der, offer Larry Pope and David Manter full reinstatement to
their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make Larry Pope and David Manter whole for
any loss of earnings and other benefits resulting from their
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Or-
der, remove from our files any reference to the unlawful dis-
charges of Larry Pope and David Manter and, WE WILL,
within 3 days thereafter, notify each of them in writing that this
has been done and that the discharges will not be used against
them in any way.

HOWARD’S SHEET METAL, INC.