Master Mechanical Insulation

National Labor Relations Board - Board Decisions

Apr 11, 1996

320 N.L.R.B. 1134 (N.L.R.B. 1996)

1134
320 NLRB No. 144
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We find no merit in the Respondent’s exception that the com-
plaint should be dismissed on the ground that the case should have
been deferred to the grievance-and-arbitration machinery of the col-
lective-bargaining agreement between the Respondent and Local 203,
Asbestos Insulation Workers Union (the Union), pursuant to Collyer
Insulated Wire, 192 NLRB 837, 839 (1971). The Respondent failed
to raise deferral as an affirmative defense in its answer to the com-
plaint or at the hearing, and its interjection of this defense after the
hearing closed is rejected as untimely. MacDonald Engineering Co.,
202 NLRB 748 (1973). Accord: 15th Avenue Iron Works, 301
NLRB 878, 879 (1991), enfd. 964 F.2d 1336 (2d Cir. 1992).
3 All dates refer to 1994 unless otherwise stated.
4 The record indicates that Ohio, West Virginia, and other States
each have special licensing requirements for asbestos removal work-
ers.
5 Wright Line, 251 NLRB 1083 (1980), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
Master Mechanical Insulation, Inc. and Ronnie
Lynn Kincaid. Case 9–CA–32488
April 11, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On October 18, 1995, Administrative Law Judge
Lowell M. Goerlich issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered 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 his recommended Order as modified.
The judge found, and we agree for the reasons stat-
ed by him, that the Respondent violated Section
8(a)(3) and (1) by discriminatorily laying off the
Charging Party, Ronnie Lynn Kincaid, on July 14,
1994,3 because he complained to the Union about the
Respondent’s failure to pay him overtime and a shift
differential as specified by the collective-bargaining
agreement between the Respondent and the Union.
Contrary to the judge, however, we find that the Re-
spondent did not violate the Act by refusing to hire
Kincaid when he was referred from the Union’s hiring
hall on July 18.
On the afternoon of Friday, July 15, the Respondent
transmitted a manpower request to the hiring hall in
Huntington, West Virginia, requesting five certified
employees for an asbestos removal job in Marietta,
Ohio, beginning at 7:30 a.m., Monday, July 18.4 That
Monday, Kincaid called the hiring hall and was told by
Michelle Richards, the receptionist, that the Respond-
ent had a manpower request pending. Kincaid reported
to the hiring hall and was referred out at approximately
2 p.m. that day. He and another referred employee,
Dave Whipkey, went to the Respondent’s offices. Ac-
cording to Kincaid’s testimony, which the judge gen-
erally credited, the two were completing employment
forms when Project Manager Ron Hampton walked
into the room, looked ‘‘angrily’’ at Kincaid, and
walked out. Minutes later, Hampton returned with the
Respondent’s executive vice president, Richard
Meckstroth, who told Kincaid and Whipkey that two
employees referred by the Union that morning had
been hired for the job and that the Respondent had
transferred employees from another project to fill the
remaining manpower needs for the job. Meckstroth in-
formed them that they would receive 2 hours ‘‘show
up’’ pay and then contacted the Union to cancel the
July 15 manpower request because the Respondent had
already filled the job.
Although we find that the General Counsel estab-
lished a prima facie case that the refusal to rehire
Kincaid on July 18 was unlawful given his unlawful
layoff 4 days earlier and the parties’ stipulation that
there was work of the type Kincaid could perform
throughout the relevant time period, we conclude that
the Respondent met its burden of showing that the
same action would have been taken even in the ab-
sence of the protected activity.5 In particular the record
establishes that the Respondent would not have hired
Kincaid for the job in question, irrespective of his
union activity, because he was referred several hours
after the Respondent had already manned the job. The
General Counsel has not contested the Respondent’s
evidence that it had fully manned this job prior to re-
ceiving notice that Kincaid had been given the referral.
We emphasize that our reversal of the judge on this
issue does not affect the make-whole remedy for the
Respondent’s unlawful layoff of Kincaid. In Dean
General Contractors, 285 NLRB 573, 573–574 (1987),
the Board stated:
Although we recognize that employment patterns
in the construction industry have unique charac-
teristics and jobs are frequently of short duration,
these general characteristics, standing alone, do
not justify a departure from our traditional make-
whole remedy prior to compliance. We simply do
not now know, as a factual matter, whether the
Respondent would have transferred or reassigned
Murphree elsewhere. Indeed, although jobs in the
construction industry are frequently of short dura-
tion at a single project, that is not always the
case. The industry is also composed, to some ex-
1135MASTER MECHANICAL INSULATION
6 See also Durham Transportation, 317 NLRB 785, 787 (1995).
tent, of ‘‘permanent and stable’’ work forces. Fur-
ther, in either case it is not unusual for employers
to carry over or request selected employees from
jobsite to jobsite. Determination of whether an
employee may have been transferred or reassigned
elsewhere is a factual question and, as such, is
best resolved by a factual inquiry at compliance.
[Footnotes omitted.]6
The record in the instant case establishes that the
Respondent retained a ‘‘core’’ group of employees
whom it transferred from jobsite to jobsite, that it had
special recall rights under the collective-bargaining
agreement which it sometimes exercised, and that it
transferred or assigned even noncore employees to var-
ious jobsites as necessity dictated. Indeed, had Kincaid
not been unlawfully laid off on July 15, he might have
been assigned or asked to work at another site, includ-
ing the Marietta, Ohio project, on July 18. Thus, not-
withstanding our finding that the Respondent did not
unlawfully refuse Kincaid’s referral for the project on
that day, that job, as well as others that the Respondent
was in the process of working and those secured after
his layoff, may be considered in compliance proceed-
ings.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, Master Me-
chanical Insulation, Inc., Huntington, West Virginia, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Delete the words ‘‘or refusing to rehire him’’
from paragraph 1(a).
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT lay off or otherwise discriminate
against an employee because he lodged a complaint or
grievance with the Union in respect to an alleged con-
tract violation.
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 offer Ronnie Lynn Kincaid full reinstate-
ment to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges pre-
viously enjoyed, and WE WILL make him whole for any
loss of earnings and other benefits resulting from his
layoff, less any net interim earnings, plus interest.
WE WILL notify Ronnie Lynn Kincaid that we have
removed from our files any reference to his layoff and
that such files will not be used against him in any
way.
MASTER MECHANICAL INSULATION, INC.
Vyrone Cravanas, Esq., for the General Counsel.
Fred F. Holroyd, Esq., of Charleston, West Virginia, for the
Respondent.
Ronnie Lynn Kincaid, of Mt. Lookout, West Virginia, in
propia persona.
DECISION
STATEMENT OF THE CASE
LOWELL M. GOERLICH, Administrative Law Judge. The
charge in this case filed by Ronnie Lynn Kincaid, an individ-
ual, on January 9, 1995, was served on Master Mechanical
Insulation, Inc. (the Respondent), on January 10, 1995. A
complaint and notice of hearing was issued on February 21,
1995. The complaint among other things alleges that the Re-
spondent terminated Kincaid and refused to rehire him be-
cause he engaged in union activity in violation of Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act).
The Respondent filed a timely answer denying that it had
engaged in the unfair labor practices alleged.
The complaint came on for hearing at Huntington, West
Virginia, on August 15, 1995. Each party was afforded a full
opportunity to be heard, to call, examine, and cross-examine
witnesses, to argue orally on the record, to submit proposed
findings of facts and conclusions, and to file briefs. All briefs
have been carefully considered.
On the entire record in this case and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR
I. BUSINESS OF RESPONDENT
At all material times, Respondent, a corporation, has been
engaged in business as an insulation and asbestos removal
contractor out of its Huntington, West Virginia facility.
During the past 12 months, Respondent, in conducting its
operations described above, provided services valued in ex-
cess of $50,000 for customers located outside the State of
West Virginia.
At all times, Respondent has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 ‘‘As an abatement worker, we construct plastic containments
around asbestos where it is to be removed and then we wet the ma-
terial and remove it properly and bag it or package it for disposal
at an EPA approved land site.’’ 2 ‘‘They’’ obviously referred to Jude’s superiors.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, the International Association of the
Heat and Frost Insulators and Asbestos Workers, Local 203
(the Union) has been a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The General Counsel claims that Ronnie Lynn Kincaid
was discharged and later not rehired because he took a griev-
ance against the Respondent to the Union. To support his
prima facie case, the General Counsel offered the following
material evidence.
The Respondent and the Union maintained an arrangement
whereby the Respondent hired employees through the union
hiring hall. However, under the arrangement the Respondent
was allowed to rehire employees who had worked for it
within the 90 days from the date of termination without
going through the union hiring hall. On June 29, 1995, the
Respondent requested five insulation strippers through the
union hiring hall. Kincaid was one of the persons referred by
the Union. Kincaid commenced work for the Respondent on
June 30, 1994, as an asbestos abatement worker.1 Kincaid
was an experienced supervisor who was well qualified for
the job. In fact while working for the Respondent he was of-
fered a supervisor’s job which he refused because the wages
were not satisfactory.
Kincaid had taken lead abatement training at the U.S. EPA
Regional Lead Training Center at the University of Mary-
land.
Kincaid was assigned to the Cabell Huntington Hospital
project where he worked full time doing for the most part,
floor tile removal. In addition, after he had concluded his day
at Cabell Huntington Hospital he worked at Marshall Univer-
sity three or four times on the evening shift. Billy Ray Jude
was Kincaid’s supervisor on the Cabell Huntington Hospital
project and Dave Dilley was his supervisor at the Marshall
University project. Kincaid believed that on these jobs the
Respondent was not paying the contractual overtime or the
shift differential. Kincaid contacted Joel Ross (now de-
ceased), the business agent for Local 80, the Insulators, and
for Region Local 203, the Asbestos Workers by phone.
Kincaid related to Ross that Dilley told him that he would
be receiving straight time for overtime worked at Marshall.
On July 7, 1994, Kincaid met with Ross at the union hall.
Kincaid showed Ross ‘‘pay stubs and a sheet showing the
actual hours worked and what [he] believed [he] was due in
terms of overtime and shift differential.’’
On July 7, on the behest of Ross, Kincaid was interviewed
for a supervisor’s job with the Respondent which as noted
above Kincaid refused. When Kincaid returned to work, Jude
asked him why he refused the supervisor’s job. Kincaid ex-
plained. Jude commented that ‘‘they’’ were wondering ‘‘why
he was at the Union hall anyway, just prior to their receiving
a call setting [him] up for an interview.’’(Tr. 37–38.) Dilley
also questioned Kincaid regarding ‘‘Why I was at the hall
anyway.’’ (Tr. 39.)
Kincaid discussed his complaint with another employee,
James Brian Mills. Mills testified that he had talked to
Kincaid about Kincaid’s complaints.
Kincaid described his departure:
Q. Okay. And did you work the entire week of the
13th?
A. I worked Monday through July 14.
Q. Okay. Tell me about July 14th, what happened on
the 14th?
A. On the—in the middle of the afternoon shift, ap-
proximately 2:30, my supervisor, Bill Jude, came to the
work area where I was working. He asked me to pick
up my tools or any personal possessions and to follow
him, which I did.
And he led me to the outside of the hospital facility,
at which point he gave me two envelopes and asked me
to open them. I opened them. And they contained two
paychecks, one for the previous week and one for that
immediate week, and also a layoff slip which indicated
that I was ‘‘Laid off due to permanent lack of work,
XXX.’’ [Tr. 47.]
. . . .
Q. Okay. And did you have a conversation with Mr.
Jude?
A. Uh—Mr. Jude told me that—he said, ‘‘Ronnie, I
have absolutely no problems with your work, but they
are making me do this.’’
I told him that I didn’t consider it fair and that I
knew, based on our previous conversations, that they
had projected a considerable—a considerable amount of
work at that facility and that I intended to go to the hall
and file a grievance.
Q. Did you say anthing else?
A. He asked me to look at my paychecks and make
certain that they were correct. And I noted, with some
surprise, that I had received overtime pay. But, I also
mentioned to Mr. Jude that I had received no shift dif-
ferential.
Q. And what did he say at that point?
A. Uh—he said, ‘‘Well, you know, I’m just a small
guy here,’’ that you know, it was all a matter out of
his control. [Tr. 47–48.]
. . . .
Q. All right. When Mr. Jude laid you off on the
14th, you testified that he told you ‘‘They are forcing
me to do this because they don’t like you running down
to the hall,’’ is that what you remember him saying?
A. Right. He—he said, ‘‘I have absolutely no prob-
lem with your work, but they’re making me do this.
They2 don’t like you running down to the hall.’’ [Tr.
69.]
On Friday, July 15, 1994, at 4 p.m., the Respondent re-
quested that the Union send five insulation strippers with
Ohio certificates for Monday at 7:30 a.m., July 18, 1994.
The Union made the referrals. Kincaid was one; he appeared
at the Respondent’s office on July 18, 1994, around 2 p.m.
He was greeted by the receptionist who gave him W-2 forms
and personnel forms to complete. Kincaid commenced filling
1137MASTER MECHANICAL INSULATION
3 Once the contractor places a work order with the hiring hall, the
hiring hall has 48 working hours in which to fill the work order,
exclusive of Saturdays, Sundays, and holidays.
4 As noted hereafter, the job did not immediately come to a close.
5 Jude testified that he knew Rogers and Stewart came out of the
union hall.
6 ‘‘All the abatement workers, anyone who engages in asbestos re-
moval in the State of West Virginia has to be licensed by the State.’’
(Tr. 151.)
out this form. Another person, Dave Whipkey, one of
Kincaid’s fellow workers, had completed his forms.
Shortly thereafter Ron Hampton, a project manager, ap-
peared. He looked at Kincaid ‘‘angrily’’ (Tr. 52) and then
left the building. He returned with Richard Meckstroth, exec-
utive vice president. He approached Kincaid and asked
‘‘what was going on there’’ (Tr. 52). Kincaid replied that he
had received a referral from the hall and was available for
work. Meckstroth said ‘‘that they had placed a work order
on Friday and he only got two people and he wasn’t sure
that he was gonna be able to use me, because they had trans-
ferred some of these people in from another job.’’ (Tr. 52.)
Meckstroth paid Kincaid and Whipkey 2 hours’ showup
time.3
The parties stipulated that from July 17, 1994, to date
‘‘there has been work performed by other employees that this
Charging Party, in this case could perform.’’ (Tr. 73.)
Mills testified that after Kincaid was separated from em-
ployment other employees were brought to the Cabell Hun-
tington Hospital and Marshall University sites. Six asbestos
strippers and two laborers were employed at Cabell after July
14, 1994.
According to Mills:
A. [T]he Cabell job, after Mr. Kincaid left, slowed
down very briefly, just long enough for this paperwork
to come through.
And then there were probably four to six workers
brought there for the next week within seven days after
Mr. Kincaid’s departure from that job. [Tr. 94.]
The Marshall job was manned by employees in part who
switched from Cabell.
Assuming Kincaid’s credibility, the General Counsel has
established a prima facie case.
Jude testified and basically denied Kincaid’s testimony re-
specting what was said at the time Kincaid was let go. Jude
testified:
Q. Tell us what you remember about the events lead-
ing up to and the occurrence of his layoff.
A. Okay. The events leading up to—uh, we were in
the process of doing a floor tile job. And we had been
there a short time. We were close to completing that
job.
And, as I’ve done many times before on other jobs,
I had a reduction in work force—uh, laid off. And, that
particular day I called in Mr. Kincaid’s time.
And I believe about 2:00 I asked Mr. Kincaid to get
his personal belongings and follow me. And we went
down to the rear entrance towards the parking lot,
where everyone parked.
And—uh, I told him that—uh, we were having a lay-
off. And, as I do with everybody else, I try to—I knew
he had a distance to drive. And I tried to let him go
early. Uh—
Q. Did you pay him through the day?
A. Yes, sir, I did.
Q. Okay.
A. And I told him that I had no problem with his
work, nothing personal, as I’ve told hundreds of em-
ployees. But, we were reducing the work force due to
the length of the job and the job was almost completed.
And that is the only reason that Mr. Kincaid was laid
off.
Q. Did you have any—did you make any other state-
ment to him, that you recall, about anybody from the
Company ordering you to lay him off?
A. No, sir. [Tr. 122, 123.]
Jude testified that he had discussed with his project man-
ager the day before Kincaid was let go that the job was com-
ing to a close.4 According to Jude, Kincaid was chosen be-
cause he had the shortest seniority on the project; Jude made
the choice.
Jude further testified that Mills, prior to Kincaid’s layoff,
had complained to him that on the Marshall job he was not
being paid overtime or a shift differential—Jude reported it
to Ron Hampton, his supervisor. According to Jude, Kincaid
was present at the conversation. Hampton told Kincaid that
he would check into it with Rick Meckstroth. Jude relayed
to Mills that the matter had been reported and ‘‘they would
get back in touch with him.’’ (Tr. 132.)
Kincaid could have been transferred to another job if
available. The project manager or Meckstroth would have
made the transfer. It never entered Jude’s mind to transfer
Kincaid.
According to Jude’s containment log on the Cabell project
Kincaid, Mills, Presley, and Jude worked on July 14. On July
15, Mills, Presley, and Jude worked; on July 18, Mills, Pres-
ley, William Rogers, and James Stewart worked.5 On July
20, Mills, Presley, and Jude worked, and on July 22, Mills,
Presley, Rogers, and Jude worked.
Jude referred to Kincaid as an average to good worker. ‘‘I
would not have to watch over him, so to speak, as I would
on inexperienced worker.’’ (Tr. 213.)
Thomas Lee Burcham, president of the Respondent, testi-
fied that at the time Kincaid was laid off ‘‘There was a very
limited supply of licensed—we have to have these people li-
censed. And there were a very limited supply, at that particu-
lar time.’’6 (Tr. 151.) ‘‘[W]e just can’t go out and just bring
in people. . . . They have to have the proper license.’’ (Tr.
151.)
Burcham explained that at the end of a project an em-
ployee could be laid off or transferred. If an employee
worked for the company within the last 90 days the company
had recall rights.
Burcham also testified that he had engaged in a conversa-
tion with Ross about Kincaid’s complaints. He further said
that the Respondent ‘‘might request one or two [referrals
from the union] a week on the average.’’ (Tr. 170.)
Resolving the question of credibility is an important factor
in finding whether the Respondent is to be found guilty of
an unfair labor practice. In this respect, demeanor is an im-
portant consideration.
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Mike Workman who had been an asbestos supervisor for the Re-
spondent until February 1995, testified that on occasion he was paid
straight time for overtime. He was told, ‘‘If I don’t work the over-
time some one else would, for the straight pay, because they need
a job.’’ (Tr. 77.)
8 On July 14, four employees worked on the project; on July 15,
three worked on the project; on July 18, four worked on the project;
on July 19, three worked on the project; and July 22, four worked
on the project. Two of these employees, Rogers and Stewart, had
come through the hall.
9 Once the General Counsel had shown by a preponderance of the
evidence that the protected conduct was ‘‘a motivating factor’’ in the
decision to separate an employee from employment ‘‘the burden
shifts to the employer to show that it would have discharged the em-
ployee even if the employee had not engaged in protected activity.’’
Blue Arrow, Inc. v. NLRB, 725 F.2d 682 (6th Cir. 1983), enfg. 261
NLRB 940 (1982). See also Wright Line, 251 NLRB 1083 (1980);
NLRB v. Transportation Management Corp., 462 U.S. 398 (1983).
As noted by the Board in Roadway Express, 108 NLRB
874, 875 (1954): ‘‘[C]redibility findings may rest entirely
upon evidence through observation which words do not, and
could not, either preserve or describe.’’
In respect to demeanor, the Supreme Court has said in
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962):
For the demeanor of a witness
‘‘. . . may satisfy the tribunal, not only that the wit-
ness’ testimony is not true, but that the truth is the op-
posite of his story; for the denial of one, who has a mo-
tive to deny, may be uttered with such hesitation, dis-
comfort, arrogance or defiance, as to give assurance
that he his fabricating, and that, if he is, there is no al-
ternative but to assume the truth of what he denies.’’
Dyer v. MacDougall, 201 F.2d 265, 269.
I am satisfied that the material facts revealed in the cred-
ited record and Kincaid’s demeanor reflect that he was tell-
ing the truth. Thus I find that he was unlawfully laid off for
submitting a grievance to the Union.
In this respect, the finding is bolstered by the following
facts.
1. The Respondent knew at the time of Kincaid’s layoff
that he had submitted a grievance to the Union (Burcham’s
testimony).
2. Kincaid’s grievance put in jeopardy Respondent’s ap-
parent practice of not paying contractual overtime and shift
differential under certain circumstances.7
3. It was unlikely that the Respondent would have laid
Kincaid off when according to Burcham there was a ‘‘very
limited supply’’ of licensed people at that particular time.’’
(Tr. 151.)
4. It is unlikely that the Respondent would have laid
Kincaid off when the next day it asked the Union to send
five employees.
5. It is unlikely that the Respondent would have laid
Kincaid off when the project apparently could have utilized
him at Cabell Huntington Hospital.8
6. It is unlikely that Respondent would have laid Kincaid
off in view of his outstanding qualifications.
7. The Respondent’s antagonism against Kincaid surfaced
when a top officer of the Respondent, Vice President
Meckstroth, although a request had been made to the union
for five employees, excluded Kincaid.
8. It is incredible that the Respondent would not have
transferred Kincaid, an excellent employee, rather than lay
him off when it was placing an order for five additional em-
ployees with the Union.
In light of the foregoing, Respondent has not credibly ex-
plained why it chose Kincaid for layoff.9 The probabilities
support a finding that Kincaid was telling the truth when he
quoted Jude as saying ‘‘They don’t like your running down
to the hall.’’ (Tr. 69.)
I find that by laying Kincaid off and by not putting him
back to work for submitting a grievance to the Union, the
Respondent violated Section 8(a)(1) and (3) of the Act and
that had he not submitted a grievance to the Union he would
have remained employed.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will effec-
tuate the purposes of the Act to assert jurisdiction.
2. By unlawfully laying off Kincaid on July 14, 1994, and
refusing to put him back to work on July 18, 1994, the Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3).
The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I recommend that it cease and desist
therefrom and take certain affirmative action necessary to ef-
fectuate the policies of the Act. Having also found that the
Respondent unlawfully laid off Ronnie Lynn Kincaid on July
14, 1994, and refused to put him back to work on July 18,
1994, in violation of Section 8(a)(3) and (1) of the Act, I
recommend that the Respondent remedy such unlawful con-
duct. In accordance with Board policy, it is recommended
that the Respondent offer Ronnie Lynn Kincaid immediate
and full reinstatement to his former position or, if that posi-
tion no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed, dismissing, if necessary, any em-
ployees hired on or since the date his discharge to fill the
position, and make him whole for any loss of earnings he
may have suffered by reason of the Respondent’s acts here
detailed, by payment to him of a sum of money equal to the
amount he would have earned from the date unlawful action
was taken against him to the date of a valid offer of rein-
statement, less his net interim earnings during such periods,
with interest thereon to be computed on a quarterly basis in
the manner established by the Board in F. W. Woolworth
Co., 90 NLRB 289 (1950), and with interest to be computed
in the manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
1139MASTER MECHANICAL INSULATION
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, Master Mechanical Insulation, Inc., Hun-
tington, West Virginia, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Laying off or otherwise discriminating against an em-
ployee or refusing to rehire him because he lodged a griev-
ance with the Union in respect to an alleged contract viola-
tion.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Ronnie Lynn Kincaid immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other bene-
fits suffered as result of the discrimination against him, in
the manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
layoff and notify the employee in writing that this has been
done and that the layoff will not be used against him in any
way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Huntington, West Virginia, copies
of the attached notice marked ‘‘Appendix.’’11 Copies of the
notice, on forms provided by the 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. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.