MTR Sheet Metal

National Labor Relations Board - Board Decisions

Jun 28, 2002

337 N.L.R.B. 713 (N.L.R.B. 2002)

713 MTR SHEET METAL, INC.
MTR Sheet Metal, Inc. and Sheet Metal Workers Lo­
cal 66, affiliated with Sheet Metal Workers In­
ternational Association, AFL–CIO. Case 19–
CA–27617
June 28, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On March 28, 2002, Administrative Law Judge James
L. Rose issued the attached decision. The General Coun­
sel filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified and set
forth in full below.1
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge as
modified below and orders that the Respondent, MTR
Sheet Metal, Inc., Kent, Washington, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Cease and desist from
(a) Threatening employees with business closure, dis­
charge, or transfer to lower paying jobs because they
engage in activity on behalf of Sheet Metal Workers Lo­
cal 66, affiliated with Sheet Metal Workers International
Association, AFL–CIO, or other concerted activity pro­
tected by Section 7 of the National Labor Relations Act.
(b) Soliciting employees to engage in surveillance of
other employees’ union activity and creating the impres­
sion that employees’ union activity is under surveillance.
(c) Telling employees not to wear union T-shirts.
(d) Discharging, transferring to lower paying jobs, giv­
ing written warnings for excused absences, or otherwise
discriminating against employees because they engage in
union or other concerted activity protected by the Act.
1 In the absence of exceptions by the Respondent, we adopt the
judge’s decision. The General Counsel filed exceptions concerning the
judge’s inadvertent omission of expunction language from the recom­
mended Order and notice. We hereby grant the General Counsel’s
exceptions and shall correct the judge’s recommended Order and no­
tice. We shall also correct the judge’s omission of reinstatement lan­
guage from the affirmative portion of his recommended Order and
notice with respect to the unlawful transfers of Saul Heikkila and Kevin
Moltz. Finally, we shall modify the judge’s recommended Order in
accordance with our decision in Indian Hills Care Center, 321 NLRB
144 (1996), as modified by Excel Container, 325 NLRB 17 (1997), and
in accordance with our recent decision in Ferguson Electric Co., 335
NLRB 142 (2001).
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Larry Ramey full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Larry Ramey whole for any loss of earnings
and other benefits suffered as a result of the discrimina­
tion against him, in the manner set forth in the remedy
section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge,
and to the four written warnings for absences, and within
3 days thereafter notify Larry Ramey in writing that this
has been done and that the discharge, and the four writ-
ten warnings for absences will not be used against him in
any way.
(d) Within 14 days from the date of this Order, offer
Saul Heikkila and Kevin Moltz prevailing wage jobs, or
if those jobs no longer exist, substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(e) Make Saul Heikkila and Kevin Moltz whole for
any loss of earnings and other benefits suffered as a re­
sult of the discrimination against them, in the manner set
forth in the remedy section of the decision.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful transfers, and
within 3 days thereafter notify Saul Heikkila and Kevin
Moltz that this has been done and that the transfers will
not be used against them in any way.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facility copies of the attached notice marked “Appen­
dix.”2 Copies of the notice, on forms provided by the
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
337 NLRB No. 110
MTR SHEET METAL, INC. 714
Regional Director for Region 19, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con­
secutive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov­
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em­
ployees and former employees employed by the Respon­
dent at any time since May 1, 2001.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re­
sponsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
The allegations of unfair labor practices not found are
dismissed.
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene­
fit and protection
Choose not to engage in any of these protected
activities
WE WILL NOT threaten you with business closure, dis­
charge, or transfer to lower paying jobs because you en-
gage in activity on behalf of Sheet Metal Workers Local
66, affiliated with Sheet Metal Workers International
Association, AFL–CIO, or other concerted activity pro­
tected by Federal Law.
WE WILL NOT ask you to report the union activity of
other employees or otherwise create the impression that
your union activity is under surveillance.
WE WILL NOT tell you not to wear union T-shirts.
WE WILL NOT discharge, transfer to lower paying jobs,
give written warnings for excused absences, or otherwise
discriminate against you because you engage in union or
other concerted activity protected by the National Labor
Relations Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exe rcise of the rights
guaranteed you by Federal Law.
WE WILL, within 14 days from the date of the Board’s
Order, offer Larry Ramey full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Larry Ramey whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw­
ful discharge of Larry Ramey, and to the four written
warnings for absences, and WE WILL, within 3 days there-
after, notify him in writing that this has been done and
that the discharge, and the four written warnings for ab­
sences, will not be used against him in any way.
WE WILL, within 14 days from the date of the Board’s
Order, offer Saul Heikkila and Kevin Moltz prevailing
wage jobs, or if those jobs no longer exist, to substan­
tially equivalent positions without prejudice to their sen­
iority or any other rights or privileges previously en-
joyed.
WE WILL make Saul Heikkila and Kevin Moltz whole
for any loss of earnings and other benefits resulting from
their transfers, less any interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw­
ful transfers of Saul Heikkila and Kevin Moltz, and WE
WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the transfers will
not be used against them in any way.
MTR SHEET METAL, INC.
Irene Botero, Esq., for the General Counsel.

Richard Llewelyn Jones, Esq., of Bellevue, Washington, for the

Respondent.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at Seattle, Washington, on February 12, 2002,
upon the General Counsel’s complaint which alleged that the
Respondent terminated one employee and transferred to lower
paying jobs two others in violation of Section 8(a)(3) of the
National Labor Relations Act (the Act). Violations of Section
8(a)(1) are also alleged.
The Respondent generally denied that it committed any vio­
lations of the Act and affirmatively contends that Larry Ramey
715 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was discharged for cause and that Kevin Moltz and Saul Heik­
kila were transferred for legitimate business reasons.
Upon the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I make the follow­
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the business of
fabricating and installing exterior architectural sheet metal with
its principal place of business in Kent, Washington. The Re­
spondent annually purchases and receives directly from outside
the State of Washington goods and materials valued in excess
of $50,000 or from suppliers who in turn directly receive such
goods directly from outside the State of Washington. I there-
fore conclude that the Respondent is an employer engaged in
interstate commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATI ON INVOLVED
Sheet Metal Workers Local 66, affiliated with Sheet Metal
Workers International Union, AFL–CIO (the Union) represents
members who are employees of employers engaged in inter-
state commerce concerning wages, hours, and other terms and
conditions of employment. I conclude that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR L ABOR PRACTICES
A. The Facts
The Respondent is a sheet metal contractor. It uses three
crews and has a fabrication shop. Much of its work is for gov­
ernmental projects on which the prevailing wage must be paid.
The Respondent also has some "private” contracts, and on these
employees receive whatever wage they negotiated with the
Respondent. The prevailing wage jobs pay from $28.87 to
$31.47 per hour, depending on the employee’s job classifica­
tion. The private jobs pay from $11 to $15 per hour.
In the spring of 2001,1 the Union sent members Steven
Sykes, Kevin Moltz, and Larry Ramey to apply for jobs with
the Respondent. After being hired, they were to attempt to
organize the Respondent’s employees. Moltz was hired in
April, Ramey on May 1, and Sykes in mid-May.
In June these “salts” began attempting to organize fellow
employees. Then on July 11, the Union’s business representa­
tive wrote the Respondent advising that an organizational cam­
paign was under way. Also on July 11, the Union wrote the
Respondent that Larry Ramey, Kevin Moltz, and Steve Sykes
were members of the organizing committee, with Ramey being
designated chairman. By letter of July 13, Dann Decker and
Saul Heikkila were designated as additions to the organizing
committee. The first two letters were received at the Respon­
dent’s office on July 12. The third was received on July 16.
On July 16, Ramey was discharged and on July 17, Moltz
and Heikkila were transferred from a prevailing wage job to a
1 All dates are in 2001, unless otherwise indicated.
private job. They both quit their employment shortly after be­
ing transferred.
B. Analysis and Concluding Findings
In addition to certain alleged violations of Section 8(a)(1),
the General Counsel contends that the discharge of Ramey and
the transfer of Moltz and Heikkila were violative of Section
8(a)(3). The Respondent argues that Ramey was discharged
principally because he had been absent too many times and that
Moltz and Heikkila were transferred pursuant to its policy of
equalizing the prevailing wage hours among employees.
As will be discussed in more detail below, I reject these ar­
guments of the Respondent. While Ramey had been absent on
perhaps three occasions, the absences were excused and he was
not given any kind of warning for missing work. The warnings
offered in evidence by the Respondent were written, I conclude,
on the day he was discharged and were meant to give a plausi­
ble reason for the Respondent’s unlawful act.
The Respondent’s argument about equalizing hours is rea­
sonable and was in fact discussed with these employees when
hired. Nevertheless, other than self-serving testimony of the
owners, there is no evidence that in fact the transfers of Moltz
and Heikkila were pursuant to this policy, or otherwise were for
valid business reasons.
The alleged violations of the Act will be treated seriatim as
they appear in the complaint.
1. The alleged violations of Section 8(a)(1)
a. By Mike MacDonald
Mike MacDonald is a crew foreman for the Respondent. He
is alleged to have violated Section 8(a)(1) by creating the im­
pression of surveillance of employees’ union activity and vari­
ous threats.
It is alleged that in May, MacDonald created the impression
that employees’ union activity was under surveillance by telling
an employee that he thought a recently hired employee was a
union organizer. This allegation is based on the testimony of
Saul Heikkila: “Mike told me that they [he and Anthony
Fulfer], Mike had beliefs that Larry [Ramey] was a union or­
ganizer.”
Heikkila testified that on two occasions (probably in May or
June, though when exactly is unclear) MacDonald told him he
suspected Ramey of being involved with the Union and for
Heikkila “to keep his eye” on Ramey. Soliciting employees to
report on the union activity of others necessarily creates the
impression of unlawful surveillance and is violative of Section
8(a)(1). Ishikawa Gasket America, Inc., 337 NLRB 175
(2001).
Again, according to Heikkila, on July 13 two union represen­
tatives came to a job on which he, MacDonald, Ramey, and
others were working. MacDonald “stated to Larry Ramey
looks like your buddies have shown up,” to which Ramey re­
sponded that the did not know what MacDonald was talking
about. The union representatives placed flyers on cars, includ­
ing MacDonald’s truck. MacDonald told them to get away
from his truck. MacDonald’s comment to Ramey is alleged to
have created the impression that employees’ union activity was
under surveillance.
MTR SHEET METAL, INC. 716
Ramey testified that somewhere around the July 4 holiday,
he told MacDonald that he had reviewed materials from the
Union and asked what the Respondent had to offer. They then
discussed the Union and union benefits. It is therefore clear
that in the first part of July, Ramey had made himself known as
being interested in the Union, and later that he was in fact a
union organizer.
In order to sustain a violation of Section 8(a)(1) based on an
alleged creation of the impression of surveillance the General
Counsel must prove that the Respondent’s knowledge of one’s
union activity could only have resulted from unlawful surveil-
lance. Since MacDonald had solicited Heikkila to “keep and
eye” on Ramey, it is reasonable to conclude that MacDonald’s
statement about Ramey’s union activity was based on unlawful
surveillance. Therefore, I conclude that the allegation in para-
graph 5(a)(i) has been established. Apparently this conversa­
tion is also the basis of the allegation in paragraph (5)(b)(i),
which I conclude has been sustained. Finally, I conclude that
MacDonald’s statement to Ramey suggested unlawful surveil-
lance as alleged in paragraph 5(a)(iii).
During the discussion Ramey and MacDonald had in early
July, MacDonald said that “I do not like them [unions]. They
want to swell their ranks, their [sic] a bunch of politicians and
that, that MTR would never go union. If they did or tried that
they would close the doors, they’d shut down.” Ramey af­
firmed this testimony on cross-examination testifying that
MacDonald told him “if the company went union, the employ­
ees wanted to go union, that the owners would close the doors,
start a new company.” MacDonald did not deny telling Ramey
something along these lines and I found Ramey generally
credible. Therefore, I conclude that the Respondent, through
M acDonald, did in fact threaten employees with plant closure
should they select the Union as their bargaining representative.
The Respondent thereby violated Section 8(a)(1) of the Act as
alleged in paragraph 5(a)(ii).
Heikkila testified that the Sunday of his last week of work
(probably July 9), he called McDonald at MacDonald’s home
and told him he had decided to join the Union and “I told him
that his suspicions about Larry Ramey were true, that he was a
union organizer but as well Kevin Moltz was a union organizer
and that also Dan Decker and I had decided to join the union as
well.”
Later that week all employees on the crew wore, for the first
time, union T-shirts. On that day Ramey was discharged. Af­
ter Ramey left the job, according to Heikkila’s credible testi­
mony, MacDonald said to him “have you informed Rich
[Fulfer] of your decision to go union yet. I said, ‘no.’ He said,
‘you might want to think about calling Rich about your deci­
sion to go union.’ And then he said you might want to think
about going union because you’ll probably be next.”
I conclude that MacDonald’s statements to Heikkila were di­
rect threats of job loss for engaging in union activity and were
violative of Section 8(a)(1) as alleged in paragraphs 5(a)(iv)
and (v).
On July 16, after Ramey was discharged, MacDonald told
Heikkila that he and Moltz were being assigned to a private job
on Bainbridge Island. According to Heikkila, whom I credit,
MacDonald said “I can’t have you guys, you union guys sacri­
ficing my way of life so I have to break you guys up.” I con­
clude that this statement by MacDonald, in addition to being
evidence that the transfer was violative of Section 8(a)(3), was
itself violative of Section 8(a)(1) as alleged in paragraph
5(a)(vi).
It is also alleged in paragraph 5(b)(ii) that MacDonald told
an employee that he “could” send a suspected union organizer
to a private job with its lesser pay. This allegation is based on
Heikkila’s testimony: “He [MacDonnald] said that he’d called,
he told me that he’d called Tony and that they’d discussed,
Mike, Mike told me that they, Mike had beliefs that Larry
[Ramey] was a union organizer. He continued to tell me that
they couldn’t, couldn’t fire him for being affiliated with the
union but they could move him to a lower paying job.”
I credit Heikkila and conclude that MacDonald made the
statement, in substance, attributed to him and that such was a
threat to treat those engaged in union activity disparately and
was therefore violative of Section 8(a)(1).
b. By Richard Fulfer
As noted above, Richard Fulfer is one of the co-owners of
the Respondent. It is alleged that on July 5, he “interrogated
employees about whether the Union organizers had asked them
how much they made.” Steven Sykes testified that two union
organizers had visited the Respondent’s shop. Following this
Fulfer “just asked us if they had asked us our wages or any
other questions and we told him that no, the conversation didn’t
get that far, it was pretty short, brief.” Fulfer went on to tell
Sykes that he had been in the Union for about 30 years, but
when he started a nonunion company, “they had taken away his
pension.”
Interrogation which does not contain a threat or promise of
benefit is protected by Section 8(c). I conclude that the interro­
gation here was not violative of Section 8(a)(1). See Rossmore
House Hotel, 269 NLRB 1176 (1984). Therefore I shall rec­
ommend that paragraph 6(c) be dismissed.
Sykes also testified that about a week later, after the above
event, he was wearing a union T-shirt. Fulfer “asked me if I
had gotten a new shirt and I said yes. He asked me if they had
convinced me to go union, I said yeah, I was thinking about
taking the apprenticeship test.” Nothing further was said. This
interrogation did not contain a promise or threat and thus was
not violative of Section 8(a)(1). I shall recommend that para-
graph 5(d) be dismissed.
c. By Dave Metcalfe
It is alleged that on July 9, Shop Foreman Dave Metcalfe or­
dered an employee (Sykes) not to wear a union T-shirt. This
occurred after Sykes’ conversation with Fulfer that day. Met­
calfe “told me that I shouldn’t wear the shirt because he was
taking heat from the bosses and he” appreciate it if I didn’t “stir
stuff up.”
Employees’ Section 7 rights include the right to wear union-
related apparel while at work. Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945). Thus prohibiting an employee
from wearing a union T-shirt permissibly be prohibited only in
circumstances where the employer can demonstrate that the
message on the T-shirt will likely disrupt good order and disci-
717 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pline. E.g., Reynolds Electrical & Engineering Co., 292 NLRB
947 (1989) (company lawfully prohibited wearing buttons with
a red line drawn diagonally through the word “scab” following
an acrimonious strike).
There is no suggestion here that wearing a union T-shirt
would in any way disrupt the Respondent’s production, cause it
to lose customers or otherwise impair good order and disci­
pline. Therefore, I conclude that Metcalfe’s statement to Sykes
was violative of Section 8(a)(1) of the Act as alleged in para-
graph 5(e).
2. The alleged violations of Section 8(a)(3)
a. The written warnings to Ramey
Though MacDonald professed not to remember when he is-
sued warnings to Ramey, I conclude the four were written by
MacDonald on July 16 and I infer for the purpose of creating a
plausible lawful reason for discharging Ramey. The “no show”
violation of May 10 was purportedly signed by MacDonald on
that day; however, there is no corroboration that this was the
case. On the Respondent’s discipline form is a space for the
employee’s response. Nothing is filled in here. Further, the
testimony of MacDonald and Richard Fulfer is to the effect that
an absence is unexcused only if the employee fails to call in.
MacDonald testified that on the occasions Ramey was absent,
he in fact did call in. On May 10, for instance, Ramey admitted
to not coming to work. But he so notified MacDonald, telling
MacDonald that his car had been broken into.
Similarly, on June 1, Ramey notified MacDonald that he had
a dental emergency and would not be to work. Nevertheless,
Ramey’s absence that day was stated to be a “no-show” and
purportedly signed by MacDonald on June 1. Again, there is
no employee response on the form.
Ramey’s absences on June 9 and 21 were noted on discipline
forms dated by MacDonald on July 16. Again, the credited
testimony of Ramey, undenied by MacDonald, is that these
absences were excused.
Although there is no question that Ramey was absent 4 days,
the credited testimony is they were excused, or at least not un­
excused. Ramey was not shown the four written warnings, nor
was he ever advised that any of his absences were not excused.
Further, there is no evidence that any other employee, at any
time ever received a warning for being absent. Indeed, Moltz
testified that he was absent 1 day, called in, and was not given
any kind of a warning. Richard Fulfer testified that employees
take off work from time without any apparent jeopardy to their
employment status.
Since the Respondent learned on July 12 that Ramey was the
chairman of the employee organizing committee, I conclude
that the written warnings signed by MacDonald were violative
of Section 8(a)(3), even though there is no evidence that any
was in fact given to Ramey. In fact, the sum of the evidence
suggests that they were written after Ramey was discharged.
b. The discharge of Ramey
The Respondent argues that it has no animosity toward the
Union and does not care whether its employees are members.
Richard Fulfer testified that he had been a union member for
many years, until he started a nonunion company. Such pro­
fessed ambivalence does not imply that the Respondent was
unconcerned that the Union began an active organizational
campaign. The Respondent’s actions, particularly the state­
ments of MacDonald, suggest otherwise. I conclude that in fact
the Respondent was opposed to the Union representing its em­
ployees.
Two days after receiving a letter from the Union naming
Ramey as the chairman of the employees’ organizing commit-
tee, he was discharged. And the alleged basis for the discharge
were warnings for absences which were in fact not written until
the day of the discharge and were never given to Ramey.
Apparently to prove a company policy of discharging em­
ployees for absenteeism, Anthony Fulfer testified that he had
recently discharged an employee who was absent without ex-
planation four times in a 2-week period. He could think of no
other employee ever discharged for being absent. Nor did he
offer facts to support the conclusion that this situation was at all
similar to Raney’s. I do not believe that in fact the Respondent
had a policyof discharging employees who missed work, espe­
cially where, as in Raney’s case, the employee called in.
In short, I conclude that the cause relied on by the Respon­
dent was made up and was not the true reason for the discharge.
Where a reason for discharge is so patently bogus, I can and do
infer that the true motive lie elsewhere—namely, Ramey’s
activity on behalf of the Union. Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466 (9th Cir. 1966).
c. The transfer of Moltz and Heikkila
The Respondent admits that on July 16, Moltz and Heikkila
were told that they were being transferred from their current
prevailing wage job to a private job and therefore would be
paid a great deal less per hour. As with Ramey, Moltz and
Heikkila were named by the Union as members of the em­
ployee organizing committee. On July 15, in a phone conversa­
tion, Heikkila told MacDonald that he had decided to join the
Union and that Moltz was an organizer. Accordingly, their
union activity was known, 1 or 2 days before the transfer. Add­
ing the Respondent’s animus and MacDonald’s statement to
Heikkila that they were being transferred in order to break up
the union employees to this timing, I conclude that the General
Counsel established prima facie that the transfer of Moltz and
Heikkila was unlawful. Wright Line, 251 NLRB 1083 (1980),
enfd. denied on other grounds 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982). Therefore, the burden shifted
to the Respondent to show that it would have transferred these
employees when it did irrespective of their union activity.
conclude the Respondent failed to meet this burden.
The Respondent maintains that it shifts employees from pre­
vailing wage jobs to private jobs in order to equalize the wages
of all employees. Indeed, Moltz was so advised when he was
hired. Nevertheless, other than the self-serving testimony of
the Respondent’s owners, there is no evidence that a shift of
employees on July 16 was required or that Mottz and Heikkila
were the two employees in line to go from prevailing wage to
private jobs.
I therefore conclude that the Respondent’s alleged reason for
transferring these two employees was an after-the-fact justifica­
tion to disguise its true motive. I conclude they were trans-
I
MTR SHEET METAL, INC. 718
ferred in order to discourage union activity and the Respondent
thereby violated Section 8(a)(3).
IV. REMEDY
Having found that the Respondent has engaged in certain un­
fair labor practices, I conclude that it should be ordered to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act, including offering
reinstatement to Larry Ramey and make him, Saul Heikkila and
Kevin Moltz whole for any loss of earnings and other benefits
in accordance with the provisions F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]