Isis Plumbing & Heating Co.

National Labor Relations Board - Board Decisions

Sep 19, 1962

138 N.L.R.B. 716 (N.L.R.B. 1962)

716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that
WE WILL NOT unilaterally terminate Christmas bonuses or change any other
term or condition of employment of our employees within the appropriate unit,
without bargaining collectively with Hotel and Motel Cooks, Waiters, Wait-
resses and Bartenders Union, Local 748, affiliated with the Hotel & Restaurant
Employees and Bartenders International Union, AFL-CIO. The appropriate
unit is:
All employees employed at Hotel Texas in Fort Worth, Texas, but exclud-
ing professional employees, confidential employees, guards and watchmen,
technical employees, secretary to the manager, manager, assistant man-
agers, executive housekeeper, catering manager, maitre d'hotel, head audi-
tor, security officers, chief engineer, assistant engineer, banquet captains,
coffee shop manager, dining room manager, director of public relations,
executive chef, chief steward, head baker, night manager, credit manager,
purchasing agent, supervisors as defined in the Act, casual employees, per-
sonnel duector, laundry manager, barber shop manager, chief telephone
supervisor, and room service captain.
WE WILL NOT discriminate against the employees in the appropriate unit by
withholding or refusing to pay Christmas bonuses to discourage membership
in the aforesaid union.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right guaranteed in Section 7 of the Act, to
form labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to refrain from any
and all of such activities.
WE WILL pay to each employee within the appropriate unit a 1961 Christmas
bonus to be computed in the same manner as the 1960 Christmas bonus
All our employees are free to become, remain, or to refrain from becoming or
remaining, members of any labor organization
CITIZENS HOTEL COMPANY D/B/A HOTEL TEXAS.
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Federal
Center, 300 West Vickery, Fort Worth, Texas, Telephone Number, Edison 5-5341,
Extension 284 if they have any question concerning this notice or compliance with
its provisions.
Isis Plumbing & Heating Co . and Local No. 582, United Asso-
ciation , affiliated with United Association of Journeymen &
Apprentices of the Plumbing and Pipefitting Industry of the
United States & Canada, AFL-CIO. Case No. 21-CA-4579.
September 19, 1969'
DECISION AND ORDER
On April 11, 1962, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that
138 NLRB No. 97.
ISIS PLUMBING & HEATING CO. 717
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a brief in support thereof.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
The General Counsel has requested the Board in this and a number
of other cases to reconsider and change its practice of not adding in-
terest to backpay awards. In support, the General Counsel has sub-
mitted a carefully, reasoned brief justifying the proposed change
adopted by the Trial Examiner.
The remedial provision of the statute (National Labor Relations
Act, as amended) is silent about the question of interest on backpay
awards.' However, as the dissent has noted, the Board has custom-
arily refrained from adding interest to such awards. The Board's
decisions have either been silent on the matter or they have denied
interest with a perfunctory explanation, e.g., that it would not ef-
fectuate the policies of the Act or be appropriate to grant such inter-
,est.3 Nowhere in the Board decisions, so far as we have been able to
ascertain, is there a reasoned statement explaining the basis for the
Board's ruling. Accordingly, a majority of the Board believes it
proper at this time to reexamine the interest question in the light of
general legal principles and the policy of the Act.
The fact that the remedial section of the Act does not mention
interest is not an obstacle to an award of such interest by the Board.
The Supreme Court has said : 3
... the failure to mention interest in statutes which create obli-
gations has not been interpreted by this Court as manifesting an
unequivocal congressional purpose that the obligation shall not
bear interest. Billings v. United States, 232 U.S. 261, 289-288.
for in the absence of an unequivocal prohibition of interest on
such obligations, this Court has fashioned rules which granted
or denied interest on particular statutory obligations by an ap-
1 Section 10(c) of the Act provides that, if the Board finds a person guilty of an unfair
labor practice , it shall issue an order requiring such person
to cease and desist from such unfair labor practice , and to take such affirmative
action including reinstatement of employees with or without back pay, as will effectu-
ate the policies of this Act: . . .
2 Sifers Cdndy Company, 92 NLRB 1220 , 1222; Cleveland Veneer Company , 89 NLRB
617, 624.
8 Rodgers v. United States , 332 US 371, 373. Accord : Board of Commissioners v.
United States , 308 U.S. 343; Billings v. United States, 232 U.S. 261.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
praisal of the congressional purpose in imposing them and in the
light of general principles deemed relevant by the Court... .
As our prior cases show, a persuasive consideration in deter-
mining whether such obligation shall bear interest is the relative
equities between the beneficiaries of the obligation and-those upon
whom it has been imposed. And this Court has generally weighed
these relative equities in accordance with the historic judicial
principles that one for whose financial advantage an obligation
was assumed or enforced, and who has suffered actual money
damages by another's breach of that obligation, should be fairly
compensated for the loss thereby sustained. • . .
The Court of Appeals for the District of Columbia has also said : 4-
... a statutory obligation i nthe nature of a debt bears interest
even though the statute creating the obligation fails to provide for
it. . . . Statutory obligations may bear interest even though the-
statute makes no provision for it. Interest on such obligations is
or is not payable depending upon the purpose of the statutory en-
actment and upon principles of equity. If the obligation is in the
nature of a debt it is deemed interest-bearing, because the statutory
purpose was to create a debtor-creditor relationship and in equity
interest is allowed as a means of compensating a creditor for loss
of use of his money. [Emphasis supplied.]
Thus, although the statute made no mention of it, interest has been
awarded to : a veteran who sued under the Universal Military Train-
ing and Service Act, 50 U.S.C. App. 451, 459, for loss of compensation
suffered as the result of a wrongful refusal to reemploy him; s em-
ployees on whose behalf suit was brought under the Walsh-Healey Act,
41 U.S.C. § 36, to recover underpayments by contractors; 6 an employee
suing for recovery under a State Workmen's Compensation Act 7
A United States v. Union Drill & Tool Corp., 183 F . 2d 998, 999 (C.A.D.C.).
5Travis v. Schwartz, 216 F. 2d 448 (C.A. 7) ; Loeb v. Kivo, 169 F. 2d 346, 349
C.A. 2) affirming 77 F. Supp. 523 , 527 (D.C.S.D.N.Y.) ; Carmalt v. General Motors
Acceptance Corp., 197 F. Supp . 266 (D C W.D. Pa.).
8Mitchell v. Riegel Textile, Inc, 259 F. 2d 954, 956 (C .A.D.C.), where the court said:
As soon as the underpayments were made , unjust enrichment [ of the mills] was
complete . Interest should therefore be allowed from the dates of the underpayments.
In Philadelphia Joint Board Amalgamated Clothing Workers of America v . United States,
106 F. Supp. 534, 535 (D.C.E D. Pa.), employees sued the United States Government to
recover interest collected by the Government under the Walsh -Healey Act from contractors
who had underpaid their employees . In holding that the employees were entitled to inter-
est on the underpayments as well as to the underpayments , the court said:
The intent of the whole Act was to insure the wage earners of everything they
would have been entitled to had the provisions of the Act been complied with .. .
I think it clear that, when Congiess directed that sums recovered as "underpayments
of wages" be paid directly to the employees , it was intended to give them what they
would have been entitled to get had they been able to sue their employer in their
own right, and that includes interest.
7 Wilson v. Doehler,-Jarvis Division of National Lead Company , 358 Mich. 510.
ISIS PLUMBING & HEATING Co. 719
"Backpay" granted to an employee under the Act is considered as
wages lost by the employee as the result of the respondent's wrong.8
It is not a fine or penalty imposed on the respondent by the Board.'
"It is an indebtedness arising out of an obligation imposed by statute-
an incident fixed by law to the employer-employee relationship. A
liability based on quasi-contract...." 1° The United States collects
the backpay for the benefit of the discriminatees.11
Accordingly, under accepted legal and equitable principles, interest
should be added to backpay awards made to employees who have been
discriminatorily separated from their employment. In this connec-
tion, it is immaterial that the final sum due such an employee can only
be ascertained after considering such factors as the interim earnings
of discriminatees and the possible willful incurrence of wage losses.1z
In point of fact, in proceedings initiated by the Board to adjudge re-
spondents in contempt of court for failure to comply with an order
of the court directing the payment of back wages to employees who
had been discriminatorily discharged, courts of appeal have as a
matter of course added interest to the amount of backpay due.13
The burden of the dissent is that Congress intended to deny interest
on backpay awards. We can find no evidence, and we have been
referred to none, which indicates that Congress had any intent on the
subject at all. Congress deliberately left broad discretion to the
Board in fashioning remedies.14 It is true that the Board's practice
until the present time has been not to require the payment of interest
on backpay awards and that since the enactment of the Wagner Act,
the statute has been twice amended without change in its relevant
remedial provision. But this does not prove that Congress intended
to freeze the Board's rulings as to interest.
At best the reenactment of statutes is a nebulous foundation for
statutory construction, and before a mere reenactment can be
given conclusive effect as a congressional adoption of an adminis-
trative interpretation, it must be shown that Congress was con-
scious that it was doing so.15
8 Nathanson v. N.L.R.B., 344 U S. 25; Social Security Board v. Nierotko, 327 U.S. 358.
8 Social Security Board v. Nierotko, 327 U.S. 358, 364.
"Nathanson v. N.L.R.B., 344 U.S. 25, 27.
n Id at p. 28.
12 In re Paramount Publix Corporation, 85 F 2d 42 (C.A. 2). See Corbin on Contracts
1046
"Corning Glass Works v. N.L.R B., 129 F. 2d 967 , 973 (C.A. 2) ; N.L R.B. v. Brashear
Freight Lines, Inc, 127 F. 2d 198, 200 (C.A. 8). In the Brashear case, the court obvi-
ously did not consider the award of interest as in the nature of a penalty. For it said
specifically that the respondent employer had acted in entire good faith and that it was
not disposed to impose any penalty.
"Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 194.
25 Pacific Power & Light Co. v. Federal Power Commission, 184 F. 2d 272, 275 (C.A.D.C.).
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Supreme Court dealt with a very similar problem in the Seven-
Up case.16 In 1950, the Board in the Woolworth case 17 changed the
formula for computing back pay which had been in effect for approxi-
mately 15 years."' Respondent in Seven-Up contended, inter alia, that
because the language of the remedial section of the Wagner Act was
reenacted in the Taft-Hartley Act, the Board lacked power to change
its previous administrative practice. The Court rejected this argu-
ment saying (344 U.S. at 351) :
Assuming Congress was aware of the Board's pre-Woolworth
practice of calculating back pay on the basis of the entire period
from discharge to offer of reinstatement, we could say here, as we
did in Gullett Gin [340 U.S. 361], that Congress by its reenact-
ment indicated its agreement that the Board's practice was author-
ized. That leads us nowhere on the present issue, though it is
only this far that what we said in Gullett Gin can lead us. In
that case as here, again assuming notice, if Congress was satisfied
that the Board was acting within its powers, the thing for it to
do was what it did-reenact without change. In that case as.
here . . . if Congress had been more than satisfied with the
Board's practice, if it had wanted to be certain that the Board
would not in future profit by its experience, it would have had to
do more than it did; it would have had to change the language
of the statute so as to take from the Board the discretionary power
to mould remedies suited to practical needs which we had declared
the Board to have and which the Board was asserting and exer-
cising. We cannot infer an intent to withdraw the grant of such
power from what is at most silent approval of specific exercises.
of it.
The Board has the right to draw on "enlightenment gained from
experience" in fashioning remedies to undo the effects of violation
of the Act.'9 We believe that in adding interest to backpay awards the
Board is bringing its practice into conformity with general principles.
of law, is achieving a more equitable result, and is encouraging com-
pliance with Board orders. On the other hand, in terms of the amounts
actually involved, the additional burden imposed upon the wrongdoer
by requiring the payment of interest is, in all but the unusual case,.
a relatively minimal burden.
Accordingly, to remedy the discriminatory discharge in this case,
we shall require, as the Trial Examiner has recommended, that Re-
spondent pay interest on the backpay due Harrigan, such interest to,
1eN.L.RB. v. Seven- Up Bottling Company of Miami, Inc, 344 U.S 344
17P. W. Woolworth Company, 90 NLRB 289
1e Penn8ylvania Greyhound Linea, Inc, 1 NLRB 1, enfd . 303 U.S. 261.
19 N.L.R .B. v. Seven-Up Bottling Co., supra, at p. 346.
ISIS PLUMBING & HEATING CO. 721
be computed at the rate of 6 percent per annum and, utilizing the
Woolworth 2e formula, to accrue commencing with the last day of each
calendar quarter of the backpay period on the amount due and owing
for each quarterly period and continuing until compliance with the
Order is achieved.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
MEMBERS RODGERS and LEEDOM, dissenting :
We dissent insofar as the remedial order that is being issued requires
the payment of interest on a backpay award.
Contrary to our colleagues' assertion, we submit that an interest
award is beyond the authority of the Board to grant. Further, we
believe such an award is a complete departure from the basic principles
upon which Board remedial orders have been based for more than 26
years.
In enacting the National Labor Relations Act in 1935, Congress
adopted the backpay formula as a deliberate choice between competing
policies. Earlier versions of the Act would have authorized the Board
to measure monetary awards by such broad standards as "substantial
justice" and "restitution." Under those standards, had they been
adopted, it could have been argued that Congress had rejected the com-
mon law test with its theory of compensation and required something
more than mere lost wages as reparation.21 Clearly, however, the leg-
islative history shows that Congress intended, by using the word
20 Our dissenting colleagues make a number of arguments which we believe are irrele-
vant to the above determination . The present decision has no bearing on whether em-
ployment compensation , union relief , and veteran disability compensation shall be deducted
from lost earnings . All that we are deciding is that when an employee has been wrong-
fully denied wages , the wrongdoer shall pay him interest on the amount wrongfully with-
held This is not a revolutionary pronouncement.
21 The common-law test, essentially a loss of earnings yardstick, is stated as "The meas-
ure of damages is what an employee would have earned if he had not been wrongfully
discharged , less what he did earn during the period of the breach ." Williston on Con-
tracts ( rev. ed. 1937 ), sec. 1358.
This test was adopted and administered by administrative tribunals uniformly even
prior to the enactment of the Wagner Act. Lost wages , sometimes specifically referred
to as "backpay ," had been awarded together with reinstatement by the National War
Labor Board in 1918; Matter of Corn Products Refining Company , docket No. 130, de-
cided Nov . 21, 1918, reported in U.S. Department of Labor, Bureau of Labor Statistics,
Bulletin No. 287 ( December 1921 ), National War Labor Board, pp. 183-184 (Government
Printing Office, 1922 ) ; Matter of General Electric Company, Lynn, Mass, docket No. 23,
decided Oct . 24, 1918, reported ibid, pp 243-244 ; Matter of Georgia Railway and Power
Company, docket No. 159, decided Dec 5, 1918, reported abed , pp 214-215 ; by the
National Labor Relations Board acting under Section 7(a) of the National Industrial
Recovery Act, Matter of Chicago Defender , Inc., 1 NLRB (old) 119 , 122: Matter of
Ralph A. Freundlich, Inc., 2 NLRB ( old) 147-148; Matter of Philadelphia Cleaners and
Dyers, Inc , 2 NLRB ( old) 223, 225 ; and also by the only court faced with remedying a
discharge in violation of an injunction issued under the Railway Labor Act Brotherhood
of Railway and S.S. Clerks v. Texas and N.O.R. Company , 24 F. 2d 420 , 434 (S D Tex.),
affd. 33 F. 2d ( CA. 5) affil 281 US. 548
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"back pay" in Section 10( c) 22 to limit narrowly the Board's remedial
orders and to authorize the Board to award an unlawfully discharged
employee "compensation for time that he has lost through unlawful
discharge." 21 [Emphasis supplied.]
Following this congressional mandate, the Board has, from its in-
ception, applied the formula based on loss of earnings and has refused
to consider any collateral losses suffered or benefits received by the dis-
charged employee in its backpay awards .14 Indeed, the Board has
previously considered, and specifically rejected, the award of interest
in a backpay award case. See Sit ers Candy Company, 92 NLRB
1220,1222.
The United States Supreme Court has recognized and approved the
standard. In Phelps-Dodge Corporation v. N.L.R.B., 313 U.S. 177,
198 (1941), the Court stated: "since only actual losses should be made
good, it seems fair that deductions should be made not only for actual
earnings ... but also for losses which [the worker] wilfully incurred."
[Emphasis supplied.] In N.L.R.B. v. Gullett Gin Company, 340 U.S.
{361, 363-364 (1951), the Court, in affirming the Board's denial of
an employer's request to deduct unemployment compensation benefits
received by the worker from his backpay award, stated :
"In effectuating the policies of the Act, the Board clearly may
award back pay to discriminatorily discharged employees. This means
that employees may be reimbursed for earnings lost by reason of the
wrongful discharge .... Since no consideration has been given or
should be given to collateral losses in framing an order to reimburse
employees for their lost earnings, manifestly no consideration need be
given to collateral benefits which employees may have received." 25
[Emphasis supplied.]
22 Section 10(c) of the Act authorizes the Board, upon finding that an unfair labor
practice has been committed , to require a respondent " . . to take such affirmative action
including reinstatement of employees with or without backpay, as will effectuate the
policies of this Act."
23 Our colleagues state that there is no evidence that Congress evinced any intent to
limit the Board's monetary remedial awards. As we have pointed out above , Congress in
drafting Section 10 ( c) specifically rejected such language as "substantial justice" and
"restitution ," which would have clearly permitted the award of interest on wages with-
held. Congress chose instead the words "reinstatement and backpay " with the knowledge
that this unambiguous language "necessarily results in narrowing the definition of restitu-
tion . . Memo comparing S. 2926 ( 73d Cong. ) with S. 1958 ( 74th Cong) dated
March 11, 1935 . Senate Committee Print, 74th Cong, 1st sess , reprinted in Legislative
History of the National Labor Relations Act of 1935 ( Government Printing Office, 1949),
pp 1324, 1360.
24 For example , Clinton Cotton Mills, 1 NLRB 97 , 121 (1935 ) ; Carlisle Lumber Com-
pany, 2 NLRB 248, 278 (1936).
25 See also the dissenting opinion of Justices Black and Douglas in Republic Steel
Corporation v. N L.R B , 311 U S. 7, 15, wherein they stated: "Nor is there substance to
the expressed fear that complete acceptance of the words [ of Section 10(e)] as Congress
wrote them would vest unlimited discretion in the Board , because it would not. That
discretion is narrowly limited, by the fact that as to `back pay' the Board can in no
instance awa) d any greater sum than `back pay' for the period in which the employee
was absent from his employer's services by reason of his employer 's violation of the law."
[Emphasis supplied.]
ISIS PLUMBING & HEATING Co. 723
The innovation here entered will, if our colleagues are to be con-
sistent and fair, inevitably lead to a requirement that, in the future,
there be deducted from lost earnings such items as employment com-
pensation, union relief, and veteran's disability compensation. But
whatever the advantages are that would flow from such a ruling in
permitting a closer approximation to absolute restitution would, in
our view, be far outweighed by the administrative difficulties at-
tendant upon its application. And indeed, as indicated by the Gullett
Gin case, supra, such a rule seems beyond the powers of this Board
to impose.
Our colleagues appear to believe that our conventional order does
not make a discharged employee whole, and that the award of interest
is necessary to accomplish this. We concede that the conventional
backpay order is not absolutely remedial. But what the majority over-
looks is the fact that absolute restitution is not, and was never con-
ceived to be, the touchstone of the Board's remedial orders. The basic
thread running through these orders is the approximation of restoring
the status quo : compensation for loss of earnings, as limited by the
public policy objectives of the Act and the Board's facilities for ad-
ministering its orders. To attempt to compute the complete, absolute,
losses suffered by a discharged employee, including, possibly, the mone-
tary value of the mental or physical distress caused him by the depriva-
tion of his earnings, would place an intolerable burden upon the
Board's facilities, and would depart, we believe, from the public
policy considerations which, in the last analysis, are our primary
concern.
We must point out, moreover, that due to the Board's recent
abandonment of its practice of tolling monetary awards during the
period between a Trial Examiner's "no violation" finding and the
Board's subsequent reversal '26 a respondent will be required to pay
backpay plus interest for a period during which there was an out-
standing finding by the Board's Trial Examiner that no violation of
the Act had been committed.
Finally, we note that during the 26-year period that has existed
without this Board granting interest on monetary awards, Congress
has reviewed and revised the Act on several occasions. No serious
consideration was ever given or even suggested, toward amending the
statute to enlarge the scope of the Board's monetary awards by a
grant of interest. We believe that when a provision such as Section
10(c) of the Act has received such a long and consistent interpreta-
tion by this Board and the courts, with apparent congressional and
judicial approval, it has become part of the administrative practice
which, if it is to be changed, should now be changed by the Congress-
m A. P. W. Products Co, Inc ., 137 NLRB 25.
662353-63-vol. 138-47
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and by the Congress alone. Consequently, the cases relied upon by our
colleagues involving awards of interest under other statutes and other
contexts 27 cannot support this reversal of long-established policy.
We are satisfied that interest is not backpay, nor backpay interest;
and i hat, whatever its character or purpose, interest is an extension of
the backpay permitted by Section 10(c) of the Act. Accordingly, we
would adhere to the present Board practice of not awarding interest
on monetary awards.
n Nor are the two NLRB cases cited by the majority authority for their positions here,
as those cases involved contempt proceedings in which the courts awarded interest with.
out explicating their reasons for such awards.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed November 8, 1961, and duly served, the General Counsel of
the National Labor Relations Board caused a complaint and notice of hearing
dated January 9, 1962, to be issued and served upon Isis Plumbing & Heating Co.,
designated as Respondent in this report; therein the General Counsel alleged that
Respondent had engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as
amended, 61 Stat. 136, 73 Stat. 519. By its answer, duly filed, Respondent conceded
the complaint's jurisdictional allegations but denied the commission of any unfair
labor practice.
Pursuant to notice, a hearing with respect to the issues was held at Los Angeles,
California, on February 19, 1962, before Trial Examiner Maurice M. Miller. The
General Counsel and Respondent were represented by counsel. Each party was
afforded a full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence pertinent to the issues. Subsequent to the hearing's com-
pletion, both counsel filed briefs, these have been fully considered.
FINDINGS OF FACT
Upon the entire testimonial record, documentaiy evidence received, and my
observation of the witnesses , I make the following findings of fact:
1. THE BUSINESS OF RESPONDENT
Respondent is a California corporation which presently maintains its principal
office and place of business at 4933 West 147th Street, Hawthorne , California. From
that 'location it engages in the business of piping , plumbing, and heating contracting
,and subcontracting . Throughout the period with which this case is concerned Re-
spondent has been a member of the Plumbing-Heating and Piping Employers Council
of Southern California , designated as the Association in this report . That organ-
ization functions as a trade association which admits to membership piping, heating,
and plumbing contractors ; it exists in part for the purpose of representing its em-
ployer-members in collective bargaining with labor organizations , and participates
through designated representatives in the negotiation , execution , and administration
of collective -bargaining agreements on behalf of its employer -members with various
labor organizations , including Local No. 582 , United Association of Journeymen &
Apprentices of the Plumbing and Pipefitting Industry of the United States & Canada,
AFL-CIO, designated as the Union herein. Association members who participate
in multiemployer bargaining , all with places of business in the State of California,
receive goods and materials from points outside the State , in the course and conduct
of their business operations , with an aggregate value in excess of $1,000,000 per year
and, furnish goods and services valued in excess of $ 100,000 per year ,to enterprises
which produce or handle igoods and ship such goods outside the State of California,
or which perform services outside the State valued in excess of $50.000 per year.
Upon the complaint 's jurisdictional allegations , which are conceded to'be accurate,
I find that Respondent is now, and gat ,all material times has been , an employer within
the meaning of Section 2(2) of the Act, engaged in commerce and business activities
which affect commerce within the meaning of Section 2(6) and (7) of the Act, as
ISIS PLUMBING & HEATING CO. 725
amended. With due regard for the jurisdictional standards which the Board presently
applies-see Stemons Mailing Service, 122 NLRB 81, and related cases-I find asser-
tion of the Board's jurisdiction in this case warranted and necessary to effectuate
statutory objectives.
II. THE LABOR ORGANIZATION INVOLVED
Local No. 582, affiliated with the United Association of Journeymen & Appren-
tices of the Plumbing and Pipefittmg Industry of the United States & Canada,
AFL-CIO, designated as the Union in this report, is a labor organization within the
meaning of Section 2(5) of the Act, as amended, which admits Respondent's em-
ployees to membership.
C> III. UNFAIR LABOR PRACTICES
A. Issue
The single question presented for determination in this case may be stated simply:
Did Respondent prepare and effectuate the termination of Mark G. Hamgan's
employment because he threatened to file and did file charges against two fellow
workers under the union constitution, as the General Counsel contends, or was
he terminated for lack of work, consistently with Respondent's contention? Testi-
mony presented with regard to the circumstances of his termination presents sharp
conflicts. To a consideration Of that testimony, reviewed and weighed pursuant
to certain necessary credibility determinations, this report now turns.
B. Facts
1. Harrigan's hire
During 1961's latter months, Respondent was engaged as plumbing contractor
on a construction project located on East Ball Road in Anaheim, California; the
project was designated as the Fritz J. Gussen Building job. Throughout the period
with which this case is concerned, Bernard (Bud) Dean functioned as Respondent's
foreman for this job. (Counsel stipulated that Dean was a supervisor, within the
meaning of the statute, while thus engaged.)
Pursuant to an October 27th request of the superintendent for the project's general
contractor, that the second floor "top-off" stage of the plumbing installation be
speeded to completion, Dean called the union office with a request for the dispatch
of three additional journeymen plumbers. On the morning of October 30, these
men were dispatched by Ray North, the Union's business manager, reached the
jobsite, and were hired by Respondent's foreman as journeymen plumbers.
Mark G. Harrigan-journeyman plumber with 41 years of experience as a crafts-
man-was one of those hired. On October 30, he worked a full 8-hour day, without
incident. (Three times before this-twice in 1959 and once in 1961, previously-
Harrigan had been hired by Respondent as a journeyman plumber. To whatever
extent his employment history with the respondent firm may be relevant herein,
discussion of that history will be deferred, for the present.)
On October 31, at approximately 10 a.m., Harrigan noticed that Foreman Dean,
a fellow union member, was using his own "brand new" pickup truck in connection
with Respondent's work. Queried with respect to the matter, Dean replied that he
was renting the truck to his employer. Harrigan-concededly a very active union
member, currently serving on the apprenticeship committee of his organization-
advised Dean that such use or rental was violative of Section 208 of the union
constitution. The designated section provides:
The use of vehicles of any description, unless furnished by the employer, will
,be discontinued by the members of the United Association during working hours,
,and the Locals of the United Association shall be and are hereby empowered
to legislate locally against further use of the same.
Dean declared his intention to put the truck in his wife's name, for subsequent
sale or lease to the respondent firm. When Harrigan expressed .the view that such
action would lead to serious trouble, Dean declared his intention to communicate with
Superintendent Westover of Respondent later that week; the journeyman suggested
that the foreman could use the truck for the balance of the week, but he recommended
that it not be used thereafter.
Later the same day, Harrigan saw Ben Kellogg, fellow union member and a
foreman of Respondent at another project, on the Gussen site. Noting Kellogg's
use of his own station wagon during working hours, Harrigan queried him as to the
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason. Kellogg declared that he had used his car to travel from his own job to the
Ball Road project. (Kellogg's project was located on Plencinia Avenue, approxi-
mately three-quarters of a rile distant. He explained that his trip had been required
in the course of business.)
On the morning of November 1, Harrigan saw Kellogg on the Gussen project again,
and noted once more his use of his own transportation. The complainant told
Kellogg that he would prefer charges against him with the Union, should he (Kellogg)
persist in the use of his station wagon while at work. Later that day, in Foreman
Dean's presence, Harrigan-having seen Kellogg use his vehicle once more to reach
the Ball Road project-told the latter that he would prefer charges with the Union
that night.
On .the evening of November 1, just before a regular union meeting scheduled for
that night, Harrigan prepared a formal charge against Kellogg, submitting it t,p
Business Manager North; he charged Kellogg had violated Section 208 of the union
constitution by "Driving own car between Jobs & carrying on Business for the Shop."
North read the charge to the assembly that night; the union membership voted its
referral to the organization's executive board.
2. Harrigan's discharge
Testimony proffered by Dean-which has not been challenged-reveals that, by
November 1 "top-off" work on the Gussen project was near completion. The fore-
man so reported to Respondent's office. (Plumbing work in building construction
normally covers three phases: (1) Ground installation, which involves the placement
of pipes and drains, together with the placement of basic ground-level fittings; (2) top-
off work, normally devoted to the placement of interior pipes, drains, and fittings
throughout the building shell; and (3) finish work, which primarily involves fixture
installation subsequent to the building shell's completion. Normally, "top-off"
work must be coordinated with the erection of the building shell, and should be com-
plete before floor and wall fabrication or installation is finished.)
On the date designated, therefore-pursuant to direction received-Dean and
Kellogg discussed the prospective transfer of several journeymen from Ball Road
to Kellogg's job at Plencinia and Howell, known as the Nabisco project. Pursuant
to their decision, three or four journeyman plumbers employed on the Gussen project,
with Harrigan the sole exception, were notified of their transfer, effective the next
day. Dean then telephoned Mrs. Dowd, Respondent's office secretary, to report that
the "top-off" phase of the Gussen job was nearly complete; that he and Harrigan
would be the only workers left on the project after the mass transfer scheduled
for the following day; that the job's "top-off" work would be completed that day;
and that Respondent would require no Gussen project employees, thereafter, for
the immediate future.
On November 2, consistently with Dean's expectation, work on the Gussen job
was completed. At approximately 12:15 p.m., Dean gave Harrigan his final pay-
check, which the foreman had just received from Respondent's office; the check in-
cluded payment for the entire November 2 working day. Dean advised Harrigan,
I find, that Respondent's work on the project would have to be suspended, and that
he was being laid off for lack of work. When Harrigan asked Dean whether his
work was satisfactory, Dean, I find, replied affirmatively; explaining that an "order
from the shop" had led to the journeyman's discharge. The foreman added, how-
ever, that "they" never wanted Harrigan on the job, saying that he would call the
Union's business manager and explain why. The journeyman worked until 3:15
p.m.; he was then told that he could leave, since no more work remained to be done
On November 3, 1961, Respondent transferred Dean to the Nabisco project. For
approximately 10 to 14 days, none of the firm's employees were required on the
Gussen project.
3. Subsequent developments
On November 3-about 9 a.m., Dean telephoned Business Manager North at the
union office; he questioned the latter about Harrigan's charge against Kellogg.
North advised his caller that every union member had the right to file charges against
another member, if he felt that some constitutional violation had occurred; Dean
indicated agreement. (These findings-and those to follow-regarding the business
manager's conversation with Respondent's foreman rest upon the manager's credited
testimony, which Dean did not deny.)
Queried, then, by the union representative with respect to the reason for Harri-
gan's discharge, the foreman disclaimed any knowledge regarding Respondent's
reason, saying that the journeyman's check had been sent from the firm's office, with
instructions that his employment be terminated. North asked whether Harrigan
ISIS PLUMBING & HEATING CO. 727
had been drinking on the job; Dean disclaimed knowledge of any drinking by the
journeyman . The business manager 's testimony with respect to the balance of their
conversation , which I credit , reads as follows:
Then I think I asked him if Mark's work was satisfactory and he said, "Yes,
Mark's a good mechanic ." Then I said, "Well , but why was Mark let go?" And
he stated again that he didn 't know.
During their talk, previously , North had advised Dean that a journeyman 's use of
his own vehicle, for the purpose of his employer 's business , violated the Union's trade
agreement ; he did not, however , quote the contract 's terms. Actually , the organiza-
tion's current labor agreement with the Plumbing-Heating and Piping Employers
Council of Southern California did include a working rule that, "No journeyman
or apprentice shall furnish an automobile , or any other conveyance for the purpose
other than to convey himself to and from work , at the beginning or end of the shift."
Violations of this rule , would , presumably, be subject to review under the contract's
grievance procedure.
That same morning, North telephoned Mrs. E. A. Ray, Respondent 's secretary-
treasurer and majority stockholder . Replying to the business manager's question
about Harrigan 's discharge , Mrs. Ray characterized the journeyman as a trouble-
maker. During the conversation which ensued , North-whose testimony I credit-
apprised Mrs. Ray of his view that Harrigan had been discharged solely because of
his action in filing a union charge against Kellogg; the union representative added that,
in his opinion , such a discharge constituted discrimination . When told, further,
that both Respondent 's contract and the union constitution forbade the use of
worker-owned vehicles for the employer 's purposes , Mrs. Ray declared that she saw
no harm in such a practice , as long as the people were getting paid for use of their
equipment.
With respect to North 's comment about Harrigan 's discharge , Mrs. Ray asked
whether the business manager wished Respondent to reinstate him; without waiting for
any answer , however , Mrs. Ray declared that she would first like to know if Harrigan
would show her the courtesy of coming up to talk with her. Harrigan , queried in
North 's office, indicated his willingness; thereupon , North arranged an appoint-
ment for him at approximately 11:30 a.m. that day.
Harrigan left the union business manager's office between 10 a.m. and 10:15 a.m.,
stopped for a shave, I find , mistakenly drove to Respondent 's former office location,
and, finally, called Mrs. Ray at 11:30 a.m. for directions to her office . He reached
her office at approximately 11:45 a.m. Mutual introductions were exchanged, and
their discussion began. ( Mrs. Ray's testimony with respect to the general course of
the discussion differed considerably from Harrigan 's version . Upon the entire rec-
ord-significant portions of which will be noted elsewhere in this report-coupled
with my observation of the witnesses, Harrigan 's recital with respect to their con-
versation has been credited.)
Mrs. Ray referred to Harrigan as "nothing but a troublemaker ," stating that she
did hot wish him on the job since he did nothing but prefer charges against people.
Harrigan demurred , stating that his charge against Kellogg was the first he had ever
preferred against anyone during 21 years in the southern California area. Reference
was made by the complainant to the possibility of Respondent 's rental of Dean's
truck. Mrs. Ray declared that Respondent did not rent trucks from employees, and
that no arrangement had been made for the truck's, purchase. She then called
Harrigan a troublemaker once more ; at this point Harrigan declared his intention to
terminate the conversation , and left Mrs . Ray's office. He has had no further contact
with the respondent firm.
B. Conclusions
With matters in this posture, the General Counsel contends that Harrigan's em-
ployment was terminated solely because of his November 1 decision to file a formal
union charge against Ben Kellogg, Respondent 's foreman , coupled with his declara-
tion that similar action might be taken against Bernard Dean, foreman on the Gussen
project. Respondent , however, argues that Harrigan 's termination was justified
by lack of work , subsequent to completion of the Gussen project 's "top -off" stage.
Counsel for the respondent firm, further defining the question posed, declare:
Nevertheless , it might be asked why Mr. Harrigan was the employee who was
laid off rather than transferred to another job? In answer to this query it could
be said that one journeyman had to stay on the Gussen job with the foreman to
complete that job , at the completion of the job that journeyman had to be laid
off for economic reasons. However, the question that remains is why was Mark
G. Harrigan designated to be that employee? The answer to this question is
the answer to this case. Respondent 's answer to this question is that the de-
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cision to keep Mr. Harrigan on the Gussen job was based solely on his past
work record, to wit, his poor job performance, his unwillingness to obey his
superiors on the job, and his antagonistic attitude toward his fellow workers.
Substantially, counsel's formulation reflects a concession that Harrigan was not laid
off, really, for lack of work considered in absolute terms. When he was terminated,
work on Respondent's Nabisco project, for example, was currently available; four
of his fellow journeymen were transferred to such work. The transferred group
included two journeymen dispatched simultaneously with tife complainant to the
Gussen project. Further, Respondent has substantially conceded that work for an-
other project was prospectively available; representatives of the firm requested the
Union to dispatch journeymen for such work on Monday, November 6, 2 working
days after Harrigan's Thursday termination. Counsel for the respondent firm, there-
fore, have correctly pinpointed the basic question: Was Respondent's motive for
Harrigan's retention on the Gussen project, subject to termination upon the com-
pletion of that project's "top-off" stage, privileged or statutorily proscribed? To
that question, consideration must now turn.
Dean and Kellogg clearly made the decision which resulted in Harrigan's retention
on the Gussen project. Questioned as to whether Mrs. Dowd directed Harrigan's
retention, Dean testified, without contradiction, as follows:
A. No, it was my choice to keep the man-or send the men over to the other
job on the request of Mr. Kellogg, and of course, he had his choice of men,
and he chose the men that he wanted which left Mr. Harrigan with me.
Q. Who chose the men to be transferred? Did Mr. Kellogg choose them or
did you choose them?
A. Mr. Kellogg and I both decided to talk about who-which man would
go and which would stay.
Respondent's foreman declared that journeymen were chosen for transfer, "from
their ability and their work and their getting along with the men," with the objective
of getting men who would work well together. This declaration, then, presents the
question for determination.
Respondent has argued that Harrigan was not chosen for transfer because his work
was substandard. Considered as a whole, however, the record provides no real
support for this contention.
During his testimony , Dean referred to Harrigan 's presumed failure to make a
particular second-floor "clean-out" installation which any "good" journeyman
would know enough to make. Record evidence, however, reveals that the Com-
plainant's presumptive neglect to install a particular fitting-should such neglect
be considered legitimately proven-was not discovered by the project's inspector
until some time after his November 2 departure; Respondent, therefore, can hardly
claim that Harrigan's presumed negligence with respect to this matter determined
Dean's November 1 choice.
Further , Kellogg described one occasion-while he was serving as Dean's tem-
porary replacement on the Gussen project-when Harrigan assertedly revealed a
reluctance to follow direction, and then sought to countermand Kellogg's order to
an apprentice. Kellogg, however, could not recall the date of this alleged occur-
rence; he expressed his "belief" that it took place after November 1, during direct
examination. Nothing in the record, therefore, can be said to sustain a determina-
tion that the incident-though it may have taken place-preceded Kellogg's con-
sultation with Dean regarding the future disposition of the Gussen crew.
Finally, reference should be made to Dean's clear failure, during his November 3
conversation with the union business manager, to cite Harrigan's alleged substandard
work as the reason for his retention on the Gussen project and subsequent termina-
tion. After telling Harrigan that "they" never wanted him on the job, and that
Business Manager North would be given an explanation , Dean told the latter that
Harrigan was a good mechanic, disclaimed any knowledge regarding the reason
for his termination, made no reference whatever to his claimed substandard work.
Respondent contends, further, that Harrigan displayed a lack of willingness to
obey job superiors. First, his performance 21/a years previously, while serving as
Respondent's foreman on the firm's "Pacific-Hawaiian" project, was cited; testimony
was proffered that his crew had made slow progress, that he had refused to concede
the validity of complaints; that he had absented himself from the project without
justification; and that, when taxed with drinking during working hours, he made no
denial. Considered in context, however, such testimony cannot be considered
presently significant. Subsequent to his presumptive failure as a supervisor, Har-
rigan was twice hired as a journeyman plumber; so far as the record shows, his
work on the first of these occasions, performed in a nonsupervisory capacity, was
satisfactory. (Early in 1961, Harrigan had been employed during the "top-off"
ISIS PLUMBING & HEATING CO. 729
stage on the firm's "Autonetics" project. Respondent's foreman directed him to
work without help, while approximately 10 to 12 men doing similar work were
assigned to work in groups. The complainant was ultimately terminated, with
several others, when Respondent had to cut its crew.)
Clearly, firm management did not consider Harrigan's previous record sufficient
to disqualify him for journeyman work. Respondent currently contends that
Harrigan's work record, considered as a whole, reveals a pattern of disobedience.
Testimony by Respondent's witnesses with respect to his (Harrigan's) work on
the Autonetics project, however, reveals nothing consistent with such a pattern;
while Kellogg's testimony with respect to his reactions on the Gussen project might
conceivably be construed as a reflective of some reversion to presumptively ques-
tionable conduct, reference has previously been made to Respondent's failure of
proof that such a reversion-assuming that it did occur-became apparent to Dean
and Kellogg before Harrigan's designation for retention on the project designated.
Finally, Respondent argues that Harrigan displayed antagonism toward fellow
workers. Testimony proffered by one journeyman on the Gussen project-which
Harrigan was not recalled to deny-would tend to sustain a factual conclusion that
the complainant "blew his top" over mistakes by an apprentice, and further declared
his disapproval of the witness' work on a Union traveler's card, outside of his home
local's jurisdiction. The journeyman in question claimed to have told Foreman
Dean that he could not work with Harrigan; his testimony reveals that he requested
a transfer, coupled with a declaration that he would resign if he received none.
With this testimony in mind, Respondent's charge with respect to Harrigan's an-
tagonism toward fellow workers might be said to have some substance. However,
Dean's failure to mention such an incident-during his November 3 conversation
with the Union's business manager-strongly suggests that the matter was not
considered serious; Respondent's present reference to the contretemps bears the
mark of afterthought.
Thus, Respondent's present contention that Dean and Kellogg designated Har-
rigan for retention on the Gussen project-subject to termination when the firm's
work was temporarily halted-because of his poor work record cannot stand under
scrutiny.
Throughout Respondent's presentation, testimony proffered by its witnesses sug-
gests their reliance upon memory colored by rationalization. For example, the
firm's superintendent, questioned with respect to Harrigan's hire for the Autonetics
project, testified that the project foreman had been advised to lay him off if he
drank on the job, or "tried to take the job over" in any way. While Superintendent
Westover's testimonial reference to a project "take over" cannot be considered clear,
commonsense suggests that his witness-chair comment was calculated to convey
that the project foreman had been warned Harrigan might refuse to follow direc-
tion or countermand directions given. Record evidence of some prior occasion
when Harrigan displayed a tendency to "take over" some company project must
be considered totally lacking, however; Respondent's prior experience with Harrigan,
taken at face value, could be found to suggest his presumptive lack of proper regard
for the responsibilities of foremanship, but it could not reasonably be found to
suggest that Harrigan, hired as a journeyman plumber, would "take over" from
Respondent's designated foreman.
With respect to the same occasion, Respondent's foreman on the Autonetics
project testified that Business Manager North was told Harrigan would be hired
if he understood "that there would be no drinking or harassment of any kind"
on the job. Harrigan's previous work history with the respondent firm reveals
no logical justification for the foreman's testimonial reference to some previously
foreseen possibility that he would harass fellow workers.
Considered together with the previously noted testimonial comment of Respond-
ent's superintendent, such testimony suggests, rather, their present readiness to
stigmatize Harrigan, retrospectively, with self-quotations calculated to suggest his
prior disposition toward conduct which might justify a management decision relative
to his termination. Without some justification shown for the prior use of such
language, present testimony regarding its purported prior use merits rejection as
rationalized, possibly even contrived.
Elsewhere in this report, reference has been made to Mrs. Ray's characterization
of Harrigan as a troublemaker, during her November 3 conversation with the Union's
business manager. Nothing in North's credited testimony, however, would warrant
a conclusion that Mrs. Ray cited any particular "trouble" for which Harrigan could
be considered responsible. While a witness, Mrs. Ray-when queried in this
regard-could only say that he "didn't seem to get along with the boys" for some
reason, not specified. Characterizing Harrigan as seemingly a breeder of confusion,
she could not provide a specific citation. Under such circumstances, her testimony
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
can hardly counter the General Counsel's contention that Harrigan was considered
a troublemaker, really, because of his decision to prefer union charges against
Respondent's foremen.
With respect to Harrigan's visit to Respondent's office, Mrs. Ray placed his arrival
at approximately 12:45 p.m. However, rebuttal testimony which I credit-proffered
by Floyd Aldrich, managing director of the Apprentice and Training Trust Fund
for the Pipe Trades-reveals Harrigan's presence in the Trust Fund office on No-
vember 3, between the hours of noon and 1 o'clock. Since Aldrich's office was
located at 1616 W. 9th Street, Los Angeles-some distance from Respondent's
Hawthorne office-his credited testimony with respect to the time of Harrigan's
arrival clearly refutes Mrs. Ray's reiterated declaration that the complainant reached
her office sometime after the noon hour. This, alone, would render her testimony
questionable and provide support for the General Counsel's contention that Harri-
gan's treatment by Respondent reflects animus based upon his conduct toward
Kellogg and Dean. However, reference should also be made to her testimony
that Harrigan hit both sides of Respondent's office door while attempting to enter;
despite her witness-chair protestation that she did not know whether Harrigan was
somewhat "shy" or what the trouble was, Mrs. Ray's recital was clearly intended
to convey the suggestion that he was not fully in possession of his faculties. Such
a suggestion merits rejection as gratuitous and without foundation: Credible testi-
mony proffered by Fund Manager Aldrich, with respect to Harrigan's condition
later that day, reveals that he "seemed sober and all business" shortly after he left
Mrs. Ray's office; further, Mrs. Ray hereslf subsequently characterized Harrigan
as a person who "seemed" very nice; she described their talk as "quite a little"
conversation. With the record thus compounded, Mrs. Ray's final comment that
her secretary "thought" Harrigan was going to fall when he attempted to enter
Respondent's office suggests a questionable readiness to proffer innuendo, rather
than forthright testimony, calculated to sustain its position with respect to Harrigan's
discharge. When, therefore, consideration is directed to North's credible testimony
relative to his telephone conversation with Respondent's secretary-treasurer, pre-
viously noted, particular note should be taken of his charge, during their talk, that
Respondent had discharged Harrigan "solely because charges had been filed against
Mr. Kellogg." Confronted with this accusation, I find, Mrs. Ray revealed no sur-
prise; likewise she recorded no denial. And when North went on to characterize
Harrigan's discharge as discriminatory, she merely asked if the union business
manager desired his reinstatement. Such reactions reflect a tacit concession that
the complainant's selection for retention on the Gussen project subject to later
termination was, indeed, motivated primarily-possibly even entirely-by his
conduct in filing a charge against one of Respondent's foremen, coupled with -a
declaration that similar action might be taken against another.
Determination that Mrs. Ray knew this to be the reason why Dean and Kellogg
decided to leave Harrigan on the Gussen project would be warranted, based upon
her characterization of the complainant as a troublemaker. Her personal knowl-
edge with respect to the matter, however, might well be considered without signifi-
:ance. Dean and Kellogg, both responsible supervisors, were certainly aware of
Harrigan's critical view with respect to their use of personal transportation for the
purposes of company business. Upon the entire record-with due regard for North's
credible testimony, and the serious deficiencies noted in Respondent's presentation
by way of defense-there can be no doubt that the knowledge of Dean and Kellogg
with respect to Harrigan's proposed course of conduct provided the principal, if
not the sole motivation, for their decision to retain him on the Gussen project,
subject to termination upon its prospective completion.
The complainant's conduct-directed to the enforcement of the Union's constitu-
tion through the preferment of charges against a fellow union member-reflects his
exercise of the statutory right given employees "to . assist labor organizations
and to engage in other concerted activities for the purpose of . mutual
aid or protection." Compare Aurora City Lines, 130 NLRB 1137, 1146; Honolulu-
Star Bulletin, Ltd, 123 NLRB 395, 407; Cooper Alloy Corporation (Aircraft Di-
vision), 120 NLRB 586, 588; Roadway Express, Inc., 119 NLRB 104 if., 108 NLRB
874 ff.; Nu-Car Carriers, Inc., 88 NLRB 75, 76-77; The Fairfield Engineering Com-
pany, 74 NLRB 827, 830. Respondent has made no contrary contention, although
the Trial Examiner raised a question with respect to the point during the hearing.
Harrigan's discharge, therefore, clearly warrants characterization as discrimination
with regard to his hire or tenure of employment, reasonably calculated to discourage
union membership within the meaning of that term as administratively and judicially
construed; likewise, it merits characterization as interference, restraint, and coercion,
directed against the exercise by employees of rights statutorily guaranteed.
ISIS PLUMBING & HEATING CO. 731
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III above, since they occurred
in connection with the business operations described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the States
and, absent correction, would tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that Respondent engaged and continues to engage in cer-
tain unfair labor practices, it will be recommended that the Board issue an order
requiring that it cease and desist therefrom and take certain affirmative action, in-
cluding the posting of appropriate notices, designed to effectuate the policies of the
Act, as amended.
Specifically, it has been found that respondent enterprise-through the conduct of
responsible supervisors-discriminated with respect to the hire, job tenure, and
terms of employment of Mark G. Harrigan, by the termination of his employment
without legal justification, because he assisted a labor organization and engaged
in concerted activity for the purpose of collective bargaining or other mutual aid
or protection. Thereby, employees of the respondent enterprise, generally, were
interfered with, restrained, and coerced in the exercise of rights statutorily guaranteed.
To effectuate the statutory objectives, therefore, my recommendation will be that the
Board order Respondent to offer Harrigan immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his senority or
other rights and privileges. See Chase National Bank of the City of New York, San
Juan, Puerto Rico, Branch, 65 NLRB 827, for a definition of the phrase "former or
substantially equivalent position" used in this report. Additionally, recommendation
will be made that Respondent be ordered to make Harrigan whole for any loss
of pay, or other incidents of the employment relationship, which he may have
suffered by reason of the discrimination practiced against him.
The General Counsel requests that the Board's order with respect to the payment
of wages lost by Harrigan because of his termination include a requirement that
Respondent pay interest at the rate of 6 percent per year on the quarterly amounts
found due, pursuant to the formula which the Board presently employs. Such a
requirement would seem to be within the Board's power; this agency possesses power,
under Section 10(c) of the Act to require any person, found to have engaged in un-
fair labor practices, to take "such affirmative action including reinstatement of em-
ployees with or without back pay" as will effectuate statutory policies.
The Board has already been requested to make such an interest requirement part
of its backpay order. Puget Sound Bridge and Dry Dock Company, Case No. 19-
CA-2283 (Intermediate Report, February 12, 1962). For the reasons set forth in
the Intermediate Report of Trial Examiner Marx, with which I concur, I join in
that recommendation.
There can be no doubt that backpay, under the Act, constitutes wages payable to
employees; that the Board collects such wages for the benefit of injured workers;
and that the Board's backpay awards constitute claims founded upon an "implied"
contract within the meaning of the bankruptcy statutes. Social Security Board v.
Nierotko, 327 U.S. 358; Nathanson v. N.L.R.B., 344 U.S. 25. The Board must adopt
its remedies so that "victims of discrimination may be treated fairly" and may be
made whole for losses suffered Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177,
194. In fashioning remedies to undo the effects of statutory violations, the Board
must draw upon enlightenment gained from experience. N.L.R.B. v. Seven-Up
Bottling Company, 344 U.S. 344, 346. Where the payment of wages has been de-
layed, employees are not made whole for losses suffered by receiving simply the
amount of those wages with no recompense for the delay.
The General Counsel has briefed, fully and ably, statute and case law relevant
to the propriety of interest awards, in cases which involve: (1) breach of contract;
(2) monetary claims based on statutes; (3) proceedings under the Universal Military
Training and Service Act, 50 U.S.C.A. App. 451, 459; (4) proceedings under the
Walsh-Healey Act, U.S.C.A. 36 for the recovery of sums deducted, rebated, or
refunded from wages, or withheld through underpayment. No useful purpose would
be served by a review of these analogous situations ; they appear to be cogent, and
I find the General Counsel's analogy contentions persuasive.
It will be recommended, therefore, that the Board order Harrigan made whole
by the payment to him of a sum of money equal to the amount which he normally
would have earned as wages in Respondent's employ, between the date of his
discharge and the date of any proper reinstatement offer which Respondent may
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make, hereafter, pursuant to the recommendations made elsewhere in this report,
together with interest thereon computed as noted below, less his net earnings during
the period indicated. Crossett Lumber Company, 8 NLRB 440, 497-498; Republic
Steel Corporation v. N.L.R.B. 311 U.S. 7, if. Pay losses suffered by Harrigan should
be computed on a quarterly basis, pursuant to the formula which the Board now
utilizes. F. W. Woolworth Company, 90 NLRB 291-294; N.L.R.B. v. Seven-Up
Bottling Company of Miami, Florida, Inc., 344 U.S. 344, if. The interest payable
thereon should be computed at the rate of 6 percent per year on the amount found due
for each calendar quarter under the Woolworth formula, beginning with the end of
such calendar quarter and continuing until payment of such amount is properly
made. Respondent should preserve and make available to the National Labor Rela-
tions Board or its agents, upon request,-for examination and copying, all payroll
records, social security payment records, timecards, personnel records and reports,
and all other records necessary to permit an analysis of the backpay amount due the
discriminatee, together with his reinstatement rights, pursuant to these recommenda-
tions.
Respondent's course of conduct-legitimately attributable to responsible super-
visors-which I have found violative of the statute, goes to the very heart of the Act,
as amended, and necessarily suggests to employees Respondent's purpose, generally,
to limit their lawful rights. The unfair labor practices found are closely related
to similar unfair labor practices, the future commission of which can reasonably
be anticipated because of the course of conduct found attributable to Respondent in
this report. The preventive purposes of the statute will be frustrated, therefore, un-
less remedial action recommended in this case, and any order which may prove to
be necessary, can be coextensive with the threat. In order, therefore, to make the
interdependent guarantees of Section 7 effective, prevent any recurrence of the unfair
labor practices found, minimize industrial strife which burdens and obstructs com-
merce, and thus effectuate the policies of the statute, it will be recommended that
Respondent cease and desist from infringement, in any other manner, upon the
rights guaranteed by the aforesaid statutory provision.
CONCLUSIONS OF LAW
In the light of the foregoing findings of fact and upon the entire record in this case,
I make the following conclusions of law:
1. Isis Plumbing & Heating Co. is an employer within the meaning of Section 2(2)
of the Act, engaged in commerce and business activities which affect commerce within
the meaning of Section 2(6) and (7) of the Act, as amended.
2. Local No. 5'82, United Association of Journeymen & Apprentices of the Plumb-
ing and Pipefitting Industry of the United States & Canada, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act, as amended, which
admits employees of Isis Plumbing & Heating Co. to membership.
3. By its discriminatory discharge of Mark G. Harrigan, its subsequent failure or
refusal to offer him effective and complete reinstatement, and its consequent inter-
ference with, restraint, and coercion of employees in the exercise of rights statutorily
guaranteed, Respondent engaged and continues to engage in unfair labor practices af-
fecting commerce, within the meaning of Section 8(a) (1) and (3) and Section 2(6)
and (7) of the Act, as amended.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law, and upon the entire record
in the case, it is recommended that the Board, pursuant to Section 10(c) of the Na-
tional Labor Relations Act, as amended, order that Respondent, Isis Plumbing &
Heating Co., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouragement of membership in Local No. 582, United Association of Jour-
neymen & Apprentices of the Plumbing and Pipefitting Industry of the United States
& Canada, AFL-CIO, or any other labor organization, by the discharge of employees,
or by discrimination in any other manner with respect to their hire and tenure of
employment, or any term or condition of their employment, except as authorized
under Section 8(a)(3) of the Act, as amended.
(b) Interference with, restraint, or coercion of employees, in any other manner,
in the exercise of their right to self-organization, to form labor organizations, to
join or assist Local 582, United Association of Journeymen & Apprentices of
the Plumbing and Pipefitting Industry of the United States & Canada, AFL-CIO, or
ISIS PLUMBING & HEATING CO. 733
any other labor organization , to bargain collectively through representatives of their
own free choice , and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any or all
such activities , except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment,
authorized in Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act , as amended.
(a) Offer Mark G. Harrigan immediate and full reinstatement to his former or
substantially equivalent position , without prejudice to his seniority and other rights
and privileges , and make him whole in the manner set forth in "The Remedy" section
of the Intermediate Report.
(b) Preserve and, upon request , make available to the Board or its agents for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or appropriate
to permit an analysis of the backpay amount due the employee designated , together
with his reinstatement rights, as set forth in "The Remedy" section of the Intermediate
Report.
(c) Post at its place of business in Hawthorne , California , where the unfair labor
practices were committed , copies of the notice attached to this report as an Appendix.,
Copies of the notice , to be furnished by the Regional Director of the Twenty-first
Region , as the agent of the Board, shall be posted, immediately upon their receipt,
after being duly signed by a representative of the respondent enterprise. When
posted, they shall remain posted 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 these notices are not
altered, defaced , or covered by any other material.
(d) File with the Regional Director of the Twenty -first Region , as the agent of
the Board , within 20 days of the date of service of this Intermediate Report and
Recommended Order, a written statement setting forth the manner and form in which
it has complied with these recommendations.2
'In the event of Board adoption of this Recommended Order , the words "A Decision
and Order" shall be substituted for the words "The Recommendations of a Trial Examiner"
in the notice In the further event of enforcement of the Board 's Order by a. decree of a
United States Court of Appeals , the words "A Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order."
2In the event of Board adoption of this Recommended Order, this provision will be
modified to read: "Notify said Regional Director , in writing , within 10 days from the
date of this Order , what steps the Respondent has taken to comply herewith
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in Local No . 582, United Association
of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the
United States & Canada, AFL-CIO, or any other labor organization, by the
discharge of employees , or by discrimination against them in any other manner
in regard to their hire and tenure of employment , or any term or condition of
their employment, except as authorized in Section 8(a)(3) of the Act, as
amended.
WE WILL NOT interfere with , restrain , or coerce our employees , in any other
manner, in the exercise of their right to self-organization, to form, join or assist
Local No. 582 , United Association of Journeymen & Apprentices of the Plumbing
and Pipefitting Industry of the United States & Canada, AFL-CIO, or any other
labor organization , to bargain collectively through representatives of their own
free choice , and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection , or to refrain from any or all
such activities , except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of ernploy-
ment, authorized in Section 8(a) (3) of the Act , as amended.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Mark G. Harrigan immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
and other rights and privileges, and make him whole for any loss of pay, or
other incidents of the employment relationship, which he may have suffered
by reason of the discrimination practiced against him.
All of our employees are free to become, remain, or refrain from becoming or
remaining, members of any labor organization, except as that right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment, authorized in Section 8(a)(3) of the Act, as amended. We will not
discriminate in regard to hire or tenure of employment, or any term or condition
of employment, against any employee because of membership in or activity on
behalf of any labor organization.
ISIS PLUMBING & HEATING CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their rights to full reinstatement upon
application in accordance with the Selective Service Act after discharge from the
Armed Forces.
This notico must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Eastern
Columbia Building, 849 South Broadway, Los Angeles, California, Telephone Num-
ber, Richmond 9-4711, Extension 1031, if they have any question concerning this
notice or compliance with its provisions.
APPENDIX B
The General Counsel's representative has filed a motion to correct the transcript in
certain designated respects. No objections have been noted by Respondent's counsel.
Upon my own review of the record, I am satisfied that the General Counsel's motion
to correct the transcript is well-founded. The list of corrections required is appended,
herewith.
1. Page 13, line 13, delete "on."
2. Page 13, line 14, substitute "prohibition of the use of a vehicle" for "prohibitive
use of a vehicle."
3. Page 15, line 12, substitute "furnished" for "confirmed."
4. Page 15, line 14, substitute "Locals of the United Association" for "Local,
United Association."
5. Page 33, line 10, substitute "11:30 or 11:20" for "1:30 or 1:20."
6. Page 42, line 20, substitute "tissue" for "issue."
Correction of the transcript, as shown, is hereby ordered.
Metropolitan Life Insurance Company and Insurance Workers
International Union , AFL-CIO, Petitioner. Case No. 18-RC-
5003. September 19, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hjalmar Storlie, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record I in this case, the Board finds:
'Because, in our opinion, the record and briefs adequately set forth the issues and
positions of the parties, the Employer's request for oral argument Is hereby denied.
138 NLRB No. 87.