Babcock & Wilcox Company d/b/a B & W Construction Company

National Labor Relations Board - Board Decisions

Aug 16, 1982

263 N.L.R.B. 405 (N.L.R.B. 1982)

B & W CONSTRUCTION COMPANY
Babcock & Wilcox Company d/b/a B & W Con-
struction Company and International Brother-
hood of Operating Engineers, Local 400. Case
27-CA-5973
August 16, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On June 25, 1980, Administrative Law Judge
Earldean V. S. Robbins issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief,' and coun-
sel for the General Counsel filed an answering
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
briefs and has decided to affirm the rulings, find-
ings," and conclusions s of the Administrative Law
Judge and to adopt her recommended Order.4
' Respondent's request for oral argument is hereby denied as the
record, the exceptions, and the briefs adequately present the issues and
the positions of the parties.
s Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing her find-
ings.
In her Decision, the Administrative Law Judge inadvertently trans-
poses Richard Metcalf's and Reuben Morgheim's names several times in
her statement of facts, and states that the arbitrator found that Morgheim
was not discharged for just cause "within the meaning of the Act,"
rather than within the meaning of the collective-bargaining agreement.
We hereby note these errors, which have no effect on the result.
s We agree with the Administrative Law Judge's finding that it would
be inappropriate to defer to the arbitrator's award herein. As the Admin-
istrative Law Judge found, the arbitrator specifically disavowed any
intent to resolve the unfair labor practice issue, stating that "the very last
thing the Arbitrator would want to do is to usurp the function of the
Board." The arbitrator's subsequent offhand observation that he found no
evidence of discharge, because of Morgheim's union activities-a finding
which is contrary to the arbitrator's own statement of facts that there
was a direct causal connection between the discharge and Morgheim's
threat to file charges against Foreman Metcalf-is insufficient to indicate
that the arbitrator was resolving the unfair labor practice issue, in the
face of his plain statement that he had no intention of doing so.
Our dissenting colleague suggests that we are being overly technical in
our reading of the arbitrator's award. In fact, it is our dissenting col-
league who is overly seizing upon casual "for what [they are]
worth" remarks, in an attempt to justify deferring to an award which
clearly states on its face that it does not intend to resolve the unfair labor
practice issue. Thus, we adopt the Administrative Law Judge's finding
that deferral would be inappropriate in this case.
4 We agree with the Administrative Law Judge that Industrial First
1Ic., 197 NLRB 714 (1972), and Bovree and Crail Construction Company,
224 NLRB 509 (1976), are distinguishable from this case. Both of those
caes involved union officials who took part in unlawful intraunion ac-
tions against supervisors. Here, Morgheim is not a union official, but
rather an employee seeking to enforce his contractual rights under a col-
263 NLRB No. 51
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 and
hereby orders that the Respondent, Babcock &
Wilcox Company d/b/a B & W Construction
Company, Lakewood, Colorado, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
CHAIRMAN VAN DE WATER, dissenting:
The majority's decision not to defer to the arbi-
tration award herein is contrary to the principles of
Spielberg Manufacturing Company, 112 NLRB 1080
(1955), and, thus, contrary to sound deferral policy.
See my dissent in Professional Porter & Window
Cleaning Co., Division of Propoco, Inc., 263 NLRB
136 (1982).
Respondent discharged Reuben Morgheim, and
his grievance was taken to arbitration. In his award
the arbitrator took note of the unfair labor practice
charge filed in this proceeding and found:
The very last thing the Arbitrator would want
to do is to usurp the function of the Board.
However, and for what it is worth, the Arbi-
trator finds no evidence of discharge because
of the Grievant's Union activities. Put in its
lowest common denominator, this is just a case
where an employee and a foreman both lost
their tempers and the foreman then acted pre-
cipitously and no subsequent investigation was
ever held by senior supervision. For these rea-
sons only, the reinstatement of the Grievant is
being ordered. His own conduct denies him
the right to back pay.
The arbitrator concluded that Morgheim was not
entitled to backpay because of his overall conduct,
"including his 'blow-up' over a simple matter of
fueling his crane on a day when he was not at
work." Thus, the arbitrator denied backpay for a
permissible reason, misconduct, and not because of
any protected activity.
lective-bargaining agreement. The fact that Morgheim stated that he
would implement his contractual rights through an intraunion charge
rather than through the contractual grievance procedure should not
remove him from the Act's protection. Such a result would require an
employee to be able to determine-on the spot-the correct method to
use in enforcing his contractual rights, with the penalty being possible
discharge if he fails. The Employer's interest in protecting its supervisor,
Metcalf, was adequately protected by the Employer's filing of a charge
against the Union for unlawfully processing Morgheim's intraunion
charge, and by the Board's subsequent finding of an 8(bXIXB) violation
by the Union.
Member Fanning, who, for reasons set forth above, agrees that this
case is distinguishable from Bovree and Crail supra, further notes that he
dissented in Bovree and Crail and that in any event he would not follow
that Decision.
405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I would defer to this award because it is not in-
consistent with the fundamental purposes or the
specific provisions of the Act and therefore is not
clearly repugnant to the purposes and policies of
the Act. The majority adopts the Administrative
Law Judge's Decision which declined to defer be-
cause the arbitrator "never seriously considered
whether Morgheim was discharged because he en-
gaged in protected concerted activity or made any
attempt to apply Board doctrine to this issue." This
reason for not deferring is clearly contrary to
Douglas Aircraft Company v. N.L.R.B., 609 F.2d
352, 355 (9th Cir. 1979), denying enforcement of
the Board's decision not to defer, 234 NLRB 578
(1978), wherein the court stated, "Overzealous dis-
section of [arbitration] opinions by the NLRB, as
well as by the courts, can defer the writing of full
opinions, and it should not be assumed that an arbi-
trator has snubbed the Act any more than that he
has exceeded his authority."
For the foregoing reasons, I would defer to the
arbitration award and dismiss the complaint in its
entirety.
DECISION
STATEMENI OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge:
This case was heard before me in Denver, Colorado, on
May 1, 1980. The charge was filed by International
Brotherhood of Operating Engineers, Local 400, herein
called the Union, and served on Babcock & Wilcox
Company d/b/a B & W Construction Company, herein
called Respondent, on September 27, 1978. The com-
plaint, which issued on December 20, 1979, alleges that
Respondent violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act, as amended, herein called
the Act. The principal issue herein is whether Respond-
ent discharged employee Reuben Morgheim for union
activity protected under the Act.
Upon the entire record, including my observation of
the demeanor of the witnesses, and upon a consideration
of the post-hearing brief filed by the General Counsel, I
hereby make the following:
FINDINGS OF FACT
i. JURISDICTION
Respondent is, and at all times material herein has
been, a Delaware corporation which maintains an office
and place of business in Lakewood, Colorado, and which
is engaged at its Laramie River Power Station near
Wheatland, Wyoming, herein called the project, in the
construction of a power generating plant. Respondent, in
the course and conduct of its business operations, annual-
ly purchases and receives goods and materials valued in
excess of $50,000 directly from points and places outside
the State of Wyoming.
The complaint alleges, Respondent admits, and I find
that Respondent is, and at all times material herein has
been, an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent has in excess of 5,000 construction em-
ployees nationwide, all of whom are covered by collec-
tive-bargaining agreements between Respondent and var-
ious unions. There are about 350 employees at the
project. The International Brotherhood of Operating En-
gineers and Respondent are parties to a national collec-
tive-bargaining agreement which provides that work per-
formed by Respondent in a particular geographical loca-
tion will be covered by the local agreement in that
locale. There are approximately 20 employees at the
project who are covered by the Operating Engineers
contract which contains an exclusive hiring provision.
However, Wyoming is a right-to-work State and union
membership is not required by the contract. Foremen are
obtained through the union hiring hall and are usually
union members. The contract also provides that a fore-
man shall confine himself to supervision except in emer-
gencies and that a foreman shall not operate or repair
any mechanical equipment on the construction project.
Reuben Morgheim was employed by Respondent as
assistant oiler for a 165-ton crane from February 1977 to
May 18, 1978. His duties included fueling and otherwise
servicing this crane. On May 18, when Morgheim report-
ed to work, the crane had been fueled in his absence.
When he inquired, some fellow employees informed him
that the crane had been fueled by Foreman Richard Met-
calf. Morgheim then went to the mechanic shack to in-
quire further as to who had fueled his rig. Metcalf and
two unit employees, mechanic Garland Moore and utility
oiler Dan Makufke, were in the mechanics' shack.
According to Morgheim, he asked Metcalf who fueled
his rig and Metcalf said he did. Then Metcalf hesitated
for a few minutes and said the gas man fueled the rig.
Morgheim told Metcalf he had no business on the rig.
Metcalf said, "What are you going to do about it?"
Morgheim said he would file charges against Metcalf.'
Metcalf said, "Go ahead, don't get smart with me, I'll
fire you." Morgheim said, "Go ahead." Metcalf said,
"Let's go to the office and get your check. You are
fired." Morgheim said, "No Buck, you go get it." 2 Met-
calf left and after about 5 minutes returned with Morg-
heim's final paycheck.
Metcalf testified that a number of employees were not
at the site the previous day due to rain. Fuel was deliv-
It is undisputed that Morgheim was referring to intraunion chargesa
and that Metcalf so understood.
2 "Buck" is Metcalfs nickname.
406
B & W CONSTRUCTION COMPANY
ered as the shift was about to end. Morgheim was not
there, so he unlocked and fueled the rig. The next morn-
ing, according to Metcalf, he was standing in the door of
the mechanics' shack when Morgheim approached and,
from about 40 feet away, shouted an inquiry as to who
filled his rig. Metcalf replied that he unlocked and fueled
the rig. Morgheim said, "You know god darn well better
than that. That's my job. I'm going to prefer charges
against you." Metcalf said, "Reuben, you're fired." On
cross-examination however, Metcalf denied that he told
Morgheim he had fueled the rig. According to Metcalf
he unlocked the rig but the gas deliveryman actually
fueled the rig.
Morgheim immediately went to the office, related
what had occurred to Jerry Dean, assistance project
manager, and recommended that Morgheim be dis-
charged, stating that his effectiveness as a foreman
would be impaired if employees could threaten "to
prefer charges against [him] and stuff like that and har-
assing [him] and abusing [him] and some of [their] mem-
bers.3 However, when specifically asked if he told Dean
that Morgheim had been abusing and harassing him,
Metcalf testified, "I told him what happened that day."
Metcalf further testified that Metcalf started swinging his
fists and actually struck him on the shoulder before an-
other employee stepped between them.4 However, Met-
calf admits that this occurred after he returned to the
mechanic's shack with Morgheim's check.
Morgheim testified that his inquiry as to who fueled
his rig was made in a normal tone of voice. He admits,
however, that when Metcalf returned with his check
they had a "face-to-face" shouting match, and that he
told Metcalf he was "a no good SOB." He denies that he
hit Metcalf or that he attempted to do so. According to
him he was gesturing with his hands, something he fre-
quently does when excited. Makufke corroborated this.
He also testified that such shouting matches are common
in the construction industry.
Makufke corroborates Morgheim that his initial in-
quiry was made in a normal tone of voice. He further
testified that Metcalf is quick-tempered and that his re-
sponse was made in a loud, agitated manner, which is
not unusual for Metcalf. Makufke agrees that the later
conversation was heated and that both Morgheim and
Metcalf were yelling. Dean testified that Metcalf told
him that Morgheim yelled, "Who filled his crane." When
Metcalf explained what happened, Morgheitn said,
"Buck, you know you can't do that. I'm going to file
charges against you." Metcalf told Dean that he and
Morgheim were yelling "nose-to-nose." I credit Morg-
heim's and Makufke's account of what occurred. They
impressed me as honest, reliable witnesses. On the other
hand, I found Metcalfs testimony somewhat inconsistent
and he impressed me as tending toward overstatements.
Accordingly, I discredit Metcalf to the extent his testi-
mony is inconsistent with that of Morgheim and Ma-
kufke.
3 Metcalf had no authority to hire and fire. He is admitted to be a su-
pervisor.
4 Although Metcalf testified that Morgheim used his fist, the gestures
he made in description of what happened were openhanded.
Metcalf testified that he recommended Morgheim's
discharge because Morgheim threatened to file intraun-
ion charges against him and for harassing, undercutting,
and threatening him in the presence of other employees.
Dean admits that the principal reason for his decision to
discharge Morgheim was Morgheim's threat to file in-
traunion charges against Metcalf, that Metcalf would be
ineffective as foreman if he could be threatened with in-
traunion charges.
Several days later, Morgheim did file intraunion
charges against Metcalf for discharging him because he
questioned Metcalf servicing the crane rather than as-
signing the job to an oiler who was present at the time.
The Union later processed the charges resulting in Met-
calf's being fined S300. The Union's conduct was found
violative of Section 8(b)(1)(B). 5 On the same day,
Morgheim filed a grievance concerning his discharge
which subsequently was submitted to arbitration before
an impartial arbitrator. Both the Union and Respondent
were represented by counsel, presented witnesses, and
filed post-hearing briefs.
B. The Motion To Defer to Arbitration
It has long been Board policy to defer to arbitration
awards as dispositive of an unfair labor practice allega-
tion where the arbitration proceedings appear to have
been fair and regular, all parties had agreed to be bound,
and the decision of the arbitrator is not "clearly repug-
nant to the purposes and policies of the Act." Spielberg
Manufacturing Company, 112 NLRB 1080 (1955). How-
ever, the Board will not honor an arbitration award
under Spielberg unless the unfair labor practice issue
before the Board was both presented to and considered
by the arbitrator. Further, the Board will not defer to an
arbitration award which bears no indication that the arbi-
trator ruled on the statutory issue of discrimination in de-
termining the propriety of an employer's disciplinary ac-
tions. Suburban Motor Freight, Inc., 247 NLRB 146
(1980); Yourga Trucking, Inc., 197 NLRB 928 (1972);
Airco Industrial Gases-Pacific, a Division of Air Reduc-
tion Company, Incorporated, 195 NLRB 676 (1972). See
also Clara Barton Terrace Convalescent Center, a Division
of National Health Enterprises-Delfern. Inc., 225 NLRB
1028 (1976).
Respondent argues that Spielberg requires that the
Board defer to the arbitrator's finding that no unfair
labor practice has been committed. However, the record
does not support this argument. Thus, the only discus-
sion in the arbitrator's award as to an unfair labor prac-
tice reads:
Finally, the Arbitrator notes that Section 8(a)(3)
unfair labor practice charge has been filed with
Region 27 of the National Labor Relations Board,
growing out of the facts of this case and that its
consideration has been deferred based upon Dubo
Manufacturing Corp., 142 NLRB 431. The very last
thing the Abritrator would want to do is to usurp
the function of the Board. However, and for what it
s International Union of Operating Engineers Local No. 400 (Babcock d
Wilcox, d/b/a B & W Construction Company, JD-(SF)-83-79
407
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is worth, the Arbitrator finds no evidence of dis-
charge because of the Grievant's Union activities.
Put in its lowest common denominator, this is just a
case where an employee and a foreman both lost
their tempers and the foreman then acted precipi-
tously and no subsequent investigation was ever
held by senior supervision. For those reasons only,
the reinstatement of the Grievant is being ordered.
His own conduct denies him the right to back pay.
The arbitrator then concluded that the grievant was
not discharged for just cause within the meaning of the
Act and ordered him reinstated but denied him backpay
because of his "over-all conduct in this case, including
his 'blow-up' over a simple matter of fueling his crane on
a day when he was not at work, and 'his post-discharge
conduct."'6
The arbitrator's disavowal of any intent to usurp the
function of the Board and his offhand conclusions, con-
trary to his statement of facts, that he finds no evidence
of discharge because of the grievant's union activities
show that he never seriously considered whether Morgh-
eim was discharged because he engaged in protected
concerted activities or made any attempt to apply Board
doctrine to this issue. Accordingly, I find that it would
be inappropriate to defer to the arbitrator's award herein
and Respondent's motion to defer to the arbitrator's
award and dismiss the complaint under the Board's Spiel-
berg doctrine is denied. Cf. Atlantic Steel Company, 245
NLRB 814 (1979).
C. Conclusions
It is well settled that an employee's efforts to imple-
ment the collective-bargaining agreement applicable to
him and fellow employees is an extension of the concert-
ed activity giving rise to that agreement and, as such, is
concerted activity protected by the Act. Merlyn Bunney
and Clarence Bunney, partners, d/b/a Bunney Bros. Con-
struction Company, 139 NLRB 1516 (1962). It is also well
established that the Act protects the right of employees
to engage in intraunion activities.
Respondent argued during the course of the hearing
herein that, in view of the 8(b)(1)(B) violation which re-
sulted from the Union's pursuit of Morgheim's intraunion
charge, Morgheim's threat to file intraunion charges
against Metcalf was not protected activity. The Board
has addressed this question in Industrial First, Inc., 197
NLRB 714 (1972), and in Bovee and Crail Construction
Company, 224 NLRB 509 (1976). In Industrial First, the
Board, without explication, adopted the Trial Examiner's
conclusion that the discharge of a union president and
acting business agent whose threat to file intraunion
charges against a foreman provoked the foreman's volun-
tary resignation as foreman was not violative of the Act.
In Bovee and Crail, the Board also found unprotected
the conduct of union executive board members in send-
ing a foreman a letter summoning him to a meeting to
discuss ways and means of having a more harmonious
job for the mutual benefit of union members and the em-
ployer's job; and threatening him with discipline for fail-
e The second conversation between Morgheim and Metcalf.
ure to appear. The Board found that the foreman was
threatened with discipline and summoned to the meeting
because of the underlying differences between the union
and the employer; that the foreman was believed to be
high enough in management to change the employer's
position with respect to a number of grievances regard-
ing the distribution of overtime, and that the action of
the union's executive board was designed to coerce the
foreman into representing the union's viewpoint with re-
spect to bargainable subjects. Thus, the threat of disci-
pline was clearly calculated to interfere with the Em-
ployer's control over its own representatives.
In explication of its conclusions, the Board stated at
509 and 511:
It is well settled that employees who engage in
intraunion activity are protected from reprisal or
discrimination by their employer. However, where
such activity transcends purely internal union affairs
and interferes with a supervisor-member's conduct
in the course of representing the interests of his em-
ployer, the activity may be violative of Section
8(b)(1)(B) of the Act and therefore lose its protec-
tion.
The thrust of our dissenting colleague's analysis
appears to be that the Union must be considered
only as an entity, and that its agents are not individ-
ually culpable as employees so long as they are as-
sisting the Union. That is simply not the law. Em-
ployees, acting on behalf of the Union, may under
certain circumstances lose the protection of the Act
when they engage in slowdown activities, disparage
their employer's product, or participate in a strike
or in picketing in violation of a no-strike clause.
Our dissenting colleague would, without legal justi-
fication, insulate the perpetrators of the unlawful
act from the act itself. We cannot accept that rea-
soning. As the poet has said, "How can we know
the dancer from the dance?"
I find the circumstances in those cases distinguishable
from those herein. There the employees were discharged
for engaging in conduct violative of the Act. As agents
of the union they were the perpetrators of the union's
unlawful conduct. Here Morgheim is merely a union
member. His threat was not unlawful. The violation of
Section 8(b)(1)(B) occurred only when the Union acted
in response to his charge. Morgheim's concern was the
implementation of the collective-bargaining agreement.
That he sought to do so though intraunion procedures
rather than through the contractual grievance procedure
should not remove him from the protection of the Act.
Attempts to implement the collective-bargaining agree-
ment are protected regardless of the merits of the em-
ployees' claims and regardless of any failure to refer to,
or comply with, formal contractually specified grievance
procedures. Adams Delivery Service, Inc., 237 NLRB 1411
(1978). Accordingly, I find that Morgheim's conduct was
protected concerted activity.
408
B & W CONSTRUCTION COMPANY
Respondent further argues that the complaint should
be dismissed because "the record does not reflect one
scintilla of antiunion animus." I do not agree. Even
though there is no evidence of hostility toward union ac-
tivity in general, admittedly the main reason Morgheim
was discharged was because he threatened to file intra-
union charges against Metcalf in the course of his at-
tempts to implement the collective-bargaining agreement,
both of which are protected activities. This is an invasion
of protected employee rights.
Respondent argues that its conduct was warranted be-
cause Morgheim's conduct occurred in the presence of
other employees and tended to undercut Metcalfs au-
thority as foreman. I do not find this sufficient justifica-
tion for Respondent's conduct. Morgheim's conduct was
not the opprobrious type which would so warrant his re-
moval from the protection of the Act. Heated, and some-
times obscene, exchanges are not uncommon among con-
struction workers and, in an industry where a foreman
might be a foreman today and a rank-and-file employee
tomorrow, conversations between foreman and employee
are apt to be conducted on the same level as that be-
tween employee and employee. His postdischarge con-
duct, of course, was provoked by his discharge.
In all of the circumstances, I find that Morgheim was
discharged in violation of Section 8(a)(1) and (3) of the
Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Reuben Morgheim because, in the
course of his attempt to implement the collective-bar-
gaining agreement, he expressed his intent to file intraun-
ion charges against his foreman for violating said agree-
ment, Respondent has violated Section 8(a)(1) and (3) of
the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, I shall recommend that Respondent cease
and desist therefrom and take certain affirmative action
in order to effectuate the policies of the Act.
Having found that Respondent discharged Reuben
Morgheim in violation of Section 8(aX1) and (3) of the
Act, it is recommended that Respondent offer him imme-
diate and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position
without prejudice to his seniority or other rights and
privileges. It is further recommended that Respondent
make Morgheim whole for any loss of pay he may have
suffered as a result of the discrimination against him by
payment to him of a sum of money equal to that which
he would have earned as wages during the period from
the date of his discharge to the date on which Respond-
ent offers him reinstatement less his net earnings, if any,
during the said period with interest. Backpay is to be
computed in the manner set forth in F W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpo-
ration, 231 NLRB 651 (1977). 7
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER S
The Respondent, Babcock & Wilcox Company, d/b/a
B & W Construction, Lakewood, Colorado, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against its
employees because of their union or other protected con-
certed activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights protected by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Reuben Morgheirn immediate and full rein-
statement to his former or substantially equivalent job
and make him whole for any loss of earnings he may
have suffered by reason of Respondent's discrimination
against him in the manner and to the extent set forth in
the section here entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records and reports, social security payment
records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due and the right of reinstatement under the terms of
this recommended Order.
(c) Post at its Laramie River Power Station Project
near Wheatland, Wyoming, copies of the attached notice
marked "Appendix."9 Copies of said notice, on forms
provided by the Regional Director for Region 27, after
being duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
7 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
a In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of 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.
9 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."
409
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties were represented by
their attorneys and afforded the opportunity to present
evidence in support of their respective positions, it has
been found that we have violated the National Labor
Relations Act in certain respects and we have been or-
dered to post this notice and to carry out its terms.
The National Labor Relations Act gives you, as
employees, certain rights, including the right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a representa-
tive of your own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
Accordingly, we give you these assurances:
WE WILL NOT discharge, or otherwise discrimi-
nate against, our employees because of their union
or other protected concerted activities.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of rights guaranteed in the Act.
WE WILL offer Reuben Morgheim immediate and
full reinstatement to his former or substantially
equivalent job and WE WILL make him whole for
any loss of earnings he may have suffered by reason
of our discrimination against him plus interest.
BABCOCK & WILCOX COMPANY D/B/A B &
W CONSTRUCTION COMPANY
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