Allied Crawford Steel

National Labor Relations Board - Administrative Judge Opinions

Jun 5, 2017

04-CA-174095 (N.L.R.B. Jun. 5, 2017)

JD–35–17
Harrisburg, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ALLIED CRAWFORD STEEL (Respondent)
and Case No. 4–CA–174095
TEAMSTERS LOCAL 776 (Charging Party)
Fallon Schumsky, Esq., and
Rebecca Leaf, Esq.,
for the General Counsel.
Brandon S. Williams, Esq. (Capozzi Adler, P.C.),
for the Respondent.
Ed Sutton,
for Charging Party.

DECISION
STATEMENT OF THE CASE
Robert A. Giannasi, Administrative Law Judge. This case was tried in
Philadelphia, Pennsylvania on April 18, 2017. The complaint, as amended, alleges that
Respondent violated Section 8(a)(4),(3), and (1) of the Act by transferring employee
Kevin Berry from one shift to another and denying subsequent requests by Berry to
transfer to other shifts because of his union activities and because he testified on behalf
of the Charging Party Union in a Board representation case. The Respondent filed an
answer denying the essential allegations in the complaint.
After the trial, the General Counsel and Respondent filed briefs, which I have
read and considered. Based on those briefs and the entire record, including the
testimony of the witnesses and my observation of their demeanor, I make the following
JD–35–17
2
FINDINGS OF FACT
I. Jurisdiction
Respondent, a Pennsylvania corporation with a warehouse distribution center 5
located in Middletown, Pennsylvania, is engaged in steel distribution activities at that
location. In a representative one-year period, Respondent purchased and received, at
its Middletown location, goods valued in excess of $50,000 from points outside the
Commonwealth of Pennsylvania. Accordingly, I find, as Respondent admits, that it is an
employer within the meaning of Section 2(2), (6), and (7) of the Act.10
I also find, as Respondent admits, that the Charging Party Union (hereafter, the
Union) is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices15
Background
Respondent is owned by Gary Stern, who is based in Toronto, Canada. Its
Middletown facility, also known as the Harrisburg facility, is one of 11 U.S. facilities 20
operated by Respondent. The Harrisburg facility is a warehouse operation that handles
incoming steel shipments, which Respondent unloads and stores, and which, after the
steel is sold to its customers, it then reloads onto trucks and ships out of the facility.
Most of the Harrisburg personnel are warehouse workers, crane operators or truck
drivers; others are office workers, salespeople, supervisors and managers. The 25
Harrisburg facility hired its first employees in the summer of 2015 and opened to the
public in October of 2015. At that time, the facility had only one shift—the first shift from
7 am to 3:30 pm.1
In September of 2015, crane operator Kevin Berry called Ed Sutton, a business 30
agent for the Union, to ask about union representation for Respondent’s employees. He
met several times with Sutton to discuss organizing Respondent’s employees. Two
fellow employees, Devin Washington and Eric Carter, joined Berry in the organizing
effort among the warehouse employees. On September 29, 2015, the Union filed a
petition for a Board-sponsored representation election in the warehouse unit. A hearing 35
on the petition was held on October 9, 2015. The main issue at the hearing was
whether the petition was premature, as Respondent alleged, because the unit was
expanding. The Board’s regional office thereafter ordered an election in the existing
unit, described as “[a]ll full-time and regular part time warehouse laborers and drivers,”
at the Harrisburg facility. The election was held on October 28, 2015. The employees 40
rejected the Union by a vote of 6 to 5.

1 The Respondent admitted in its answer that the following managers who were involved in the
operation of the Harrisburg facility were supervisors under Section 2(11) of the Act and agents under
Section 2(13) of the Act: Owner Gary Stern; Patrick Coburn, Regional Warehouse Manager; Alex
Kovacs, VP of Growth; Tim Schauman, General Manager; Dave Viola, Plant Manager; John Weltmer,
Shipper/Receiver/Plant Manager; and Anthony Heckman, General Manager/Plant Manager/Outside Sales.
JD–35–17
3
Berry testified on behalf of the Union at the October 9 representation hearing and
he also served as the Union’s election observer at the morning session of the October
28 election. In the interim, during the election campaign, the Respondent vigorously
opposed union representation. Stern spent some time at the Harrisburg facility in 5
October. He met with employees both individually and in group sessions. His notes of
some of the meetings were introduced into evidence. In what was probably the first
group meeting, Stern thanked the employees for a successful startup at the Harrisburg
facility. And he told the employees that Respondent was going to add a second shift
and eventually a third shift. G.C. Exh. 7.2 10
Stern also urged employees to reject the Union. There is uncontradicted
testimony from Eric Carter and Devin Washington that, in one of the group meetings,
Stern told employees that he heard someone had contacted the Union and that he did
not have to negotiate with the Union. He also asked the employees to give him a 15
chance. Tr. 40-42, 55. He also spoke to employees in one-on-one meetings in a
private office. He made clear to employees in those meetings that he wanted them to
reject the Union. He actually met twice with Washington. In the first meeting Stern
asked Washington if he knew anything about the Union; and, in the second, the day
before the election, he urged Washington to vote against the Union, repeating that he 20
did not have to agree to its terms. Tr. 42-43, 54-56. Then-General Manager Anthony
Heckman also talked to employees about the Union, repeating some of the views that
Stern had expressed. Tr. 44-45. At still another group meeting, led by Regional
Warehouse Manager Patrick Coburn and Human Resources Regional Manager Tanja
Bowdoin, the latter read a statement from Stern urging rejection of the Union. In the 25
statement, Stern asked the employees to give him a chance and he would see what he
could do about complaints. Tr. 45-46.3
Coburn, who is based in Greenville, South Carolina, spent the entire month of
October 2015 at the Harrisburg facility. Tr. 144, 158. He testified that he was there to 30

2 The original of this exhibit was in Stern’s handwriting, which is difficult to read. After the hearing
closed, the parties provided me, at my request, an agreed-upon typed version of the exhibit, which I have
included with the original both in the hard-copy and the electronic record of the exhibits.
3 I also note that the above uncontradicted testimony from Carter and Washington was supported by
the affidavit of Kevin Berry, which was admitted in evidence as past recollection recorded. According to
his affidavit, Berry too attended group meetings where Stern’s anti-union position was expressed; and he
was summoned for a one-on-one meeting with Stern. See G.C. Exh. 9. By the time of the hearing, Berry
had been promoted to a position he identified as logistics coordinator or dispatcher. Tr. 61, 75. This is a
salaried and office job. Tr. 75-77, 208-209. He was thus removed from the unit in which the Union
sought representation rights. Although Berry testified at the trial, he was a very reluctant witness because
he had obviously switched his allegiance from the Union to the Respondent. And he had a remarkable
and convenient loss of memory. He claimed he could not remember very much about what happened
during the union campaign and his shift change requests, the very subject of this case, based on charges
filed by the Union on his behalf. He did confirm, however, that his signed affidavit was a truthful account
of what happened. Based on his unimpressive demeanor and his rambling evasiveness, I did not find his
testimony reliable unless confirmed by his affidavit or by other documentary evidence.
JD–35–17
4
train the warehouse employees and assess their abilities (Tr. 124-125), but he also
testified he was aware of the union campaign that was underway in October (Tr. 143).
And, as indicated above, he led one of the group meetings at which Stern’s statement in
opposition to the Union was read to the employees.
5
Coburn prepared weekly notes on his assessment of the employees, which were
introduced into evidence. His assessment of Berry, Carter and Washington, all pro-
union employees, was not favorable. Coburn noted that all three hung around together
and talked. He had a particularly negative assessment of Berry. He said that Berry had
an “attitude” problem and called him “slow” and “lazy.” Coburn also noted that another 10
employee was good unless he “gets caught up” with Berry, Carter and Washington. In
his last notes, prepared at the end of October, Coburn noted that Berry was still “slow”
and had an “attitude,” further stating that, if Berry did not improve, Respondent might
have to “let him go.” Coburn also noted that Berry was now on second shift and he
hoped that, on that shift, Berry would “break all the bad habits that he has.” G.C. Exhs. 15
15-18.
The Union filed objections to the election it lost; it also filed unfair labor practice
charges alleging that Respondent had coerced employees during the election campaign
and discriminatorily terminated Carter and Washington shortly after the election. A 20
complaint issued on the unfair labor practice charges. The Board also authorized the
filing of a Section 10(j) injunction in United States District Court to remedy the unfair
labor practices. All those matters were subsequently resolved by a settlement
agreement dated March 11, 2016. G.C. Exhs. 5 and 6.
25
Except in terms of background, the settlement does not affect the complaint
allegations in this case, which are based on separate charges asserting that
Respondent violated the Act by discriminatorily transferring Berry from his existing shift
and denying his subsequent shift transfer requests. Since initially contacting the Union
and until late February 2016, Berry maintained regular contact with Union Business 30
Agent Ed Sutton. See Tr. 31-34, G.C. Exh. 3. He also maintained contact with Board
agents investigating and preparing this matter, particularly in email exchanges, two of
which were entered into the record in this case. For example, as late as May 2, 2016,
Berry sent an email to a Board agent stating that he felt he was “being forced to work on
2nd shift. I am dealing with a lot of emotional stress and missing out on part time job 35
opportunities just to stay afloat while (sic). All while (sic) I’m being underpaid and
overworked every day.” G.C. Exh. 13.
However, on July 21, 2016, Berry was promoted to a salaried office position in
the shipping and receiving department. G.C. Exh. 22. On July 25, 2016, Berry 40
confirmed in an email to a Board agent that he had been promoted and that he was
waiving his right to be transferred to the third shift. G.C. Exh. 12.
The Transfer of Berry from First Shift to Second Shift
45
Berry was hired in June 2015 as a crane operator at $11 per hour. His resume in
Respondent’s file includes a notation made by a management official that Berry
JD–35–17
5
preferred to work on the first shift. G.C. Exh. 8. And that is where he started. But, on
October 21, 2015, he was transferred, involuntarily, to the second shift.4
Respondent instituted its second shift at the Harrisburg facility in October of
2016.5 Coburn testified that he was involved, along with Stern and other top 5
management people, in the decision to transfer employees from the first shift to the
second shift at that time. Tr. 145, 149. The announcement as to which employees
were to be transferred to the newly established second shift was made by Gary Stern in
an employee meeting at the Harrisburg facility on October 15, 2015. The employees
who were to go to the second shift included: Kevin Berry, Wayne Bruce, Dennis 10
Woland, Jeremy Rosati, and Devin Washington. Tr. 149. Washington never went to
the second shift, however, because, on the same day he was targeted for the second
shift, Respondent granted his request to stay on first shift for personal reasons. Tr. 57,
137-138.6
15
Coburn was the only witness who testified about why Berry was selected to move
to the second shift.7 He testified that the people selected for the second shift, including
Berry, were people with experience, good work ethic, availability, and appropriate skills.
Tr. 145, 149-152. Coburn agreed that the second shift required the “better people.” Tr.
165. But that testimony is at odds with Coburn’s contemporary assessment of Berry’s 20
attitude and skills, as reflected in his written notes taken in October 2015 and discussed
above. Tr. 153-155. Indeed, Coburn testified that, in October 2015, when Berry was
transferred to the second shift, Berry was not a very good employee because he was
hanging around too much with Washington and Carter, who were the only “bad
influences” on him. Tr. 177-178. And, as indicated above, in his written assessment of 25
employees in late October, Coburn stated that Berry was slow, had an attitude problem,
and Respondent was considering terminating him. When Coburn was asked why Berry
was transferred to the second shift, he gave this explanation (Tr. 174-175):

4 In its answer, Respondent admitted that it transferred Berry from the first shift to the second shift on
October 21, 2015.
5 The first shift off-loaded incoming steel deliveries, stored them in an organized fashion, and loaded
steel products for delivery. Tr. 116. The second shift “pulled steel,” which means that the employees
prepared the steel for shipping, and loaded the steel onto trucks. At the time of the hearing, the
Respondent operated 3 shifts: The first shift runs from 7 am to 3:30 pm; the second shift runs from 3 pm
to 11:30 pm; and the third shift, added sometime in January 2016, runs from 11 pm to 7:30 am. The third
shift mainly loads the steel on to trucks. Tr. 115-120.
6 It does not appear that, at this point—October 15, Washington, unlike Berry, who had testified on
behalf of the Union at the Board representation hearing on October 9, was known by Respondent to have
been a union leader or supporter. In his first one-on-one meeting with Stern, early in October,
Washington denied knowing anything about the Union. In the second meeting, on the day before the
election, Stern told Washington, “we pretty much know which way you’re going to vote,” but he was still
trying to obtain Washington’s vote in the election. Tr. 53-57.
7 Stern did not testify in this proceeding. But his notes of meetings with employees, received in
evidence as G.C. Exh. 7, included his report of meetings with Berry about the latter’s transfer to the
second shift. Those notes indicate that, after Berry learned that he would be transferred to the second
shift, Berry came to Stern on two occasions to plead that he be permitted to stay on the first shift for
personal reasons and because of his greater seniority than other employees who were slated to remain on
first shift. Stern denied those requests and indicated that Berry seemed angry after his pleas were denied.
JD–35–17
6
Because he can’t—Kevin started off a little rough. He then—after
he took upon him to get away from some people, he did very well.
He would—attention to detail. He would actually go to his bay; take
his paperwork; and he would pull the material.5
The explanation does not really address why Berry was transferred to the second shift.
It seems to address his alleged improvement after he started working on the second
shift and was separated from “some people,” meaning Carter and Washington.
10
Denials of Berry’s Requests to Transfer Out of Second Shift
In November 2015, Berry asked for a transfer from the second shift back to the
first shift. That request was denied. Coburn testified that he was responsible for
denying Berry’s request to transfer from the second shift to the first shift on this 15
occasion, although Berry made his request to the on-site manager, Anthony Heckman,
and Coburn’s decision was relayed through Heckman. Coburn testified that the reason
for his decision in denying the transfer request was that “we have to get established. . . .
I said and not at this time. I didn’t say it was indefinite; I said not at this time; six months
to a year maybe.” Tr. 130-131. There is no evidence that Berry was notified of this 20
reason at the time his request was denied.
Later, sometime in January 2016, after the Respondent added a third shift, Berry
again asked to transfer out of the second shift, this time to the third shift. The reason
given by Berry for his request on this occasion was that he had lost his driver’s license, 25
which made it difficult for him to continue on the second shift. Heckman forwarded the
request to Coburn, who again denied the transfer. When testifying about his denial of
Berry’s request on this occasion, Coburn gave no reason for his denial of the request.
Tr. 132-133.
30
There was still another request by Berry to move to the third shift in April of 2016.
That request was made to the new on-site general manager at the time, Tim Schauman,
and it was based on an accommodation to Berry’ personal life. Schauman agreed to the
transfer, as did David Viola, the plant manager at the time. Tr. 133-134, 180-181, 193-
194, 196. Respondent was about to move another employee to the third shift and 35
Schauman believed it would not be a problem to move Berry instead. Tr. 194-195.8

8 Schauman, who has 40 years of experience in the industry, came to the Harrisburg facility in
November 2015, after the union campaign and the Board election. Tr. 191-192, 197-198. At the time he
granted Berry’s transfer request, Schauman had no idea that Berry had been an activist on behalf of the
Union during October of 2015. Tr. 197. In his testimony, Coburn tried to downplay Schauman’s ability
to assess employees in terms of granting shift transfers. I do not credit Coburn’s testimony on this issue.
By the time of Coburn’s reversal of Schauman’s decision to transfer Berry, Schauman had been general
manager at the Harrisburg facility for six months and, in approving the transfer request, he had the
agreement of another experienced manager at the facility, David Viola. They surely knew how to run the
facility on a day-to-day basis better than Coburn, if, indeed, such decisions were going to be based on
legitimate business reasons.
JD–35–17
7
Coburn, however, overruled Schauman and Viola and denied Berry’s transfer
request; that decision was then transmitted to Berry. 133-134, 196-198. According to
Coburn, Berry’s was one of several requests to transfer out of the second shift at the
time. His explanation for the denial of Berry’s request was as follows (Tr. 135):
5
Because we were still establishing second shift. And without pulling
somebody that knows what they’re doing away from there, then I had—
nobody else to run that bay. So therefore, for our service and our
customers next-day, we’d have problems getting steel out. So therefore,
everybody wanted to move, but they wouldn’t let us get established.10
At another point in his testimony, Coburn suggested that Berry was too valuable an
employee to transfer out of the second shift. Tr. 175-176. Here again, there is no
evidence that this reason for the reversal of the grant of Berry’s transfer request was
transmitted to Berry at the time. Nor is there any evidence, other than Coburn’s own 15
testimony, that Berry had improved in such a way from Coburn’s earlier assessment to
make himself too valuable to transfer out of the second shift.
Coburn acknowledged that other employees were permitted to transfer shifts.
One employee was hired in November 2015 to work on the third shift and he was 20
trained on the first shift. When it was time for him to move to the third shift, in early
2016, that employee changed his mind and said it would be a burden on his family to
move to the third shift. Coburn initially denied the transfer, but later relented and
permitted the transfer when that employee threatened to quit. Tr. 136-137. Also in
early 2016, two other employees, one of whom had been “on the job” for only two 25
weeks, were permitted to switch shifts, one from second to third and the other from third
to second. Tr. 138-141, 158. Still another employee, who was transferred to the
second shift when Berry was, asked for and received a transfer to the third shift when it
was created in early 2016. Tr. 141-142. And a newly hired employee on the third shift
was permitted to transfer to the second shift in early May of 2016. Tr. 164-165. Other 30
shift transfers were permitted based on personal considerations and were made even
though the employees transferred had little prior experience. Tr. 142-143, 164-169.9
Documentary evidence shows that the warehouse employee workforce at the
Harrisburg facility increased from 11 employees at the time of the Board election to 23 35
employees in May of 2016. G.C. Exh. 20. During that time, Respondent hired
numerous employees, and, after some training, placed them on all three shifts. G.C.
Exhs. 19 and 20.
40

9 Coburn also testified that he denied transfer requests from six or seven employees, in addition to
Berry, but he could not name the employees or give any details as to why their transfer requests were
denied. He also testified that those employees were no longer employed by Respondent. Tr. 178-180.
When asked when those denials took place, Coburn answered, “I have not a clue.” Tr. 185. Because of its
obvious lack of detail and unreliability, I do not credit Coburn’s testimony in this respect.
JD–35–17
8
Discussion and Analysis
In determining whether an employer’s adverse employment actions are unlawful,
the Board applies the mixed motive analysis set forth in Wright Line, 251 NLRB 1083
(1980), enf’d. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 5
(1982), approved in NLRB v Transportation Management Corp., 462 U.S. 393 (1983).
Under Wright Line, the General Counsel must satisfy an initial burden of showing, by a
preponderance of the evidence, that the employee’s protected activity was a motivating
factor in an employer’s adverse action. If the General Counsel satisfies that initial
burden, the burden shifts to the employer to show it would have taken the same action 10
even absent the employee’s protected activity. The employer does not meet its burden
merely by showing it had a legitimate reason for the action; it must demonstrate,
persuasively, that it would have taken the same action in the absence of the protected
conduct. And if the employer’s proffered reasons are pretextual—either false or not
actually relied on—the employer fails by definition to meet its burden of showing it would 15
have taken the same action for those reasons absent the protected activity. See also
Boothwyn Fire Company No. 1, 363 NLRB No. 191, slip op. 7 (2016).10
A finding of pretext also supports an initial showing of discrimination. See Wright
Line, supra, 251 NLRB at 1088 n. 12, citing Shattuck Denn Mining Corp. v. NLRB, 362 20
F. 2d 466, 470 (9th Cir. 1966) (Where a respondent’s reasons are false, it can be
inferred “that the [real] motive is one that the [respondent] desires to conceal—an
unlawful motive—at least where . . . the surrounding facts tend to reinforce that
inference.”). See also Lucky Cab Co., 360 NLRB 271, 273-274 (2014). Moreover, a
trier of fact may not only reject a witness’s testimony about his reasons for an adverse 25
action, but also find that the truth is the opposite of that testimony. See Pratt
(Corrugated Logistics), LLC, 360 NLRB 304, 314 (2014) and cases there cited.
Applying the above principles to the facts in this case, I find that Respondent
transferred Berry to the second shift on October 21 because of his union activities and 30
because he testified in the Board representation proceeding less than 2 weeks before. I
also find that Respondent refused Berry’s several requests to transfer out of the second
shift, including on the last occasion in April 2016, because of the same discriminatory
reasons. I further find that the reasons given by Regional Warehouse Manager Coburn
for Respondent’s actions were not believable and therefore amounted to pretexts. Even 35
without that finding of pretext, however, I would find that Respondent has not shown
persuasively that its decisions on Berry’s shift assignments would have been taken in
the absence of his union activities and his testimony on behalf of the Union’s position in
the representation case.
40
The General Counsel has easily met the initial burden of showing that the
decision to transfer Berry to the second shift on October 21 was made for unlawful and
discriminatory reasons. It is clear that Berry was the chief supporter of the Union
among the warehouse employees. And he was known as such to the Respondent. He

10 The Wright Line analysis applies not only to the Section 8(a)(3) allegations in the complaint, but
also to the Section 8(a)(4) allegations. American Gardens Management Co., 338 NLRB 644, 645 (2002).
JD–35–17
9
not only testified on behalf of the Union’s position at the Board representation hearing
on October 9, but he was the Union’s observer at the morning session of the Board
election on October 28. Respondent’s anti-union position was made clear in numerous
meetings with the small number of warehouse employees on board in October 2015.
Owner Gary Stern and Warehouse Regional Manager Coburn spent much time at the 5
Harrisburg facility during the month of October. Stern and other management officials
made clear Stern’s opposition to the Union, his vows not to deal with the Union, and
also his interest in resolving employee complaints if given the chance without a Union
on the scene. Indeed, in one of his early group meetings, Stern told employees that he
heard someone had contacted the Union—that someone, of course, was Berry.1110
The timing of the October 21 transfer of Berry to the second shift during the
intensity of the anti-union campaign solidifies the inference that the transfer was made
to punish him for his leadership role in the Union’s effort to represent the warehouse
employees. Also significant in this respect is Respondent’s effort to accommodate 15
employees’ personal reasons for a shift preference—something Respondent did not do
for Berry, whose preference for the first shift was made clear to Respondent from his
date of hire. Indeed, Stern’s notes show that Respondent tried to place employees on
the shift they requested. G.C. Exh. 7. I therefore find that the General Counsel has
initially shown that the October 21 transfer of Berry to the second shift was 20
discriminatorily motivated.
As shown in the factual statement, Respondent’s defense to the transfer of Berry
to the second shift was provided by Coburn’s testimony. That testimony is not only
unconvincing, but Coburn’s explanation is nonsense. It does not even address why 25
Berry was transferred to the second shift, except perhaps in its reference to Berry’s
hoped-for improvement after he “g[o]t away from some people,” meaning Carter and
Washington, two other pro-union employees. Moreover, both before and after the
transfer, Coburn’s contemporary notes reflected a highly negative view of Berry’s work
and his work ethic. These were supposedly necessary criteria for placing employees on 30
the second shift, according to Coburn, who also thought only the “better” employees
should work on the second shift. Indeed, his late October notes—written after the
transfer—show that Coburn considered terminating Berry. Thus, Coburn’s testimony on
this issue is hopelessly inconsistent and I do not credit it. But, as I have indicated,
Coburn’s non-explanation implied that Berry’s transfer separated him from other pro-35
union employees, which confirms an anti-union motive for the transfer. Respondent has
therefore not met its burden to rebut the General Counsel’s showing of discrimination.
On the contrary, Coburn’s unconvincing explanation strengthens the finding of
discrimination in the October 21 transfer of Berry to the second shift.
40
The record shows that Berry remained on the second shift for at least 6 months,
from October 21, 2015 through at least May 2, 2016, despite repeated attempts to
transfer to other shifts. On May 2, Berry complained to a Board agent that he was being

11 It is well settled that evidence on matters that were subject to a settlement agreement may be used
as background in determining the motive of an employer’s actions in other matters. See St. Mary’s
Nursing Home, 342 NLRB 979, 980 (2004).
JD–35–17
10
“forced” to work on the second shift and that caused him a “lot of emotional stress.” The
initial discriminatory transfer of Berry to the second shift provides context for the
Respondent’s subsequent denials to transfer him out of the second shift. The first
denial of Berry’s transfer request was in November 2015, just a few weeks after the
original discriminatory transfer. I also note that, at the time of the first two denials, both 5
the objections case and the unfair labor practice case against the Respondent were still
pending and had not yet been settled. I therefore find, at least as an initial matter, that
the discrimination against Berry in October 2015 continued when Respondent denied
Berry’s three requests to transfer out of the second shift—one in November 2015 to the
first shift; and twice to the newly instituted third shift, first in January 2016 and finally in 10
April 2016.
Respondent’s defense to these denials of the requests to transfer out of the
second shift was provided again by Coburn’s testimony, which was as unconvincing as
his explanation for the original transfer to the second shift. His explanation for the 15
November 2015 denial of Berry’s transfer request to the first shift was that Respondent
was still “establishing” the second shift and he thought that perhaps in six months or a
year the transfer request might be granted. This reason is a pretext. The same
inconsistency in Coburn’s testimony about Berry’s transfer to the second shift in late
October applies here with respect to the denial of Berry’s request to transfer to the first 20
shift. Moreover, it does not appear that the reasons mentioned by Coburn in his
testimony, including the possibility of a later transfer, were communicated to Berry.
Indeed, the alleged promise of a future transfer was bogus. Berry remained on the
second shift, despite his desire to go back to the first shift, which was his acknowledged
preference from the time of his hire, and despite other transfers both in and out of the 25
second shift. In short, I reject Coburn’s explanation and I find that the November 2015
refusal to transfer Berry was discriminatory.
The next denial of Berry’s request to leave the second shift, this time to the newly
created third shift came in January 2016. Here again, the earlier discriminatory actions 30
against Berry support the inference that the discrimination against Berry continued.
Significantly, Respondent was still hiring new employees and moving them to the third
shift, which had just been instituted. One would think, if only legitimate reasons
motivated an employer, that Berry, who was allegedly one of the “better” employees
originally transferred to the second shift and was already trained, would be easily 35
moved to the third shift at his request for personal reasons. Significantly, in his
testimony, Coburn gave no explanation at all for this denial of Berry’s transfer request.
Accordingly, I find that Respondent discriminatorily denied Berry’s January 2016
request to transfer from the second shift to the third shift.
40
The final denial of Berry’s request to transfer to the third shift in April 2016 is
really the strongest example of the continuing discrimination against Berry. The three
earlier findings of discrimination provide context for this, the fourth alleged instance of
discrimination. But, on this occasion, two on-site managers, Tim Schauman, the general
manager, and Dave Viola, the plant manager, had approved Berry’s request, for 45
personal reasons, to transfer to the third shift—only to be reversed by Coburn. By now,
the increase in the Harrisburg warehouse workforce was significant and the record
JD–35–17
11
shows that many employees were transferred from one shift to another for personal and
other reasons. The disparate treatment accorded to Berry simply strengthens the case
of discrimination against him for his protected activity. I therefore find that, here again,
the General Counsel has established an initial case of discrimination.
5
Coburn’s explanation for this last refusal to transfer Berry is as unconvincing as
his other explanations for Respondent’s obvious discriminatory treatment of Berry. But
here the explanation borders on the ridiculous. The employee (Berry) who, in late
October, was such a poor employee that Coburn considered terminating him was now,
according to Coburn, so valuable he could not be spared from the second shift. Indeed, 10
aside from Coburn’s unreliable testimony, there is no evidence of Berry’s alleged
improvement to such an extent that he was now considered too valuable to be accorded
the transfer he so desperately wanted. Indeed, two on-site managers approved Berry’s
request to transfer, thus refuting any notion that Berry was too valuable to move out of
the second shift. Here again, as in previous Coburn decisions against Berry, neither 15
Coburn nor anyone else told Berry he was too valuable to move out of the second shift.
This for an employee who was suffering from emotional stress at being forced to work
the second shift. Moreover, Coburn’s testimony that his denial of this transfer request
was because “we were still establishing second shift” is ludicrous. By the time of
Berry’s April 2016 request to transfer to the third shift, the second shift had been in 20
operation for six months; indeed the third shift had been in operation for three months.
As for Coburn’s claim that he had a better understanding, from his South Carolina
location, about the propriety of shift transfer requests than Harrisburg on-site General
Manager Schauman, I have earlier discredited that testimony. Accordingly, I find that
Respondent has not rebutted the General Counsel’s strong case of discrimination with 25
respect to the April 2016 denial of Berry’s request to transfer to the third shift.
Conclusions of Law
30
1. By transferring employee Kevin Berry to the second shift, and, thereafter, over
a period of six months, denying his requests to transfer to another shift, because of his
union activities and because he testified in a Board representation case, Respondent
violated Section 8(a)(4), (3) and (1) of the Act.
35
2. The above violation is an unfair labor practice within the meaning of the Act.
Remedy
Having found that Respondent has engaged in unfair labor practices, I find that it 40
must be ordered to cease and desist from its unlawful conduct and to take certain
affirmative action designed to effectuate the policies of the Act, including the posting of
an appropriate notice.
JD–35–17
12
On these findings of fact and conclusions of law, and on the entire record, I issue
the following recommended12
ORDER
5
Respondent, its officers, agents, successors and assigns, shall
1. Cease and desist from
(a) Transferring employees from one shift to another or refusing to transfer 10
employees from one shift to another because of their union or other protected concerted
activity or because they testified in a Board proceeding or otherwise cooperated with the
Board.
(b) In any like or related manner interfering with, restraining or coercing 15
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.
20
(a) Within 14 days after service by the Region, post at its Harrisburg facility
copies of the attached notice marked “Appendix.”13 Copies of the notice, on forms
provided by the Regional Director for Region 4, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to 25
employees are customarily posted. In addition to physical posting of paper notices, the
notices shall be distributed electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, defaced, or covered by any 30
other material. If 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 and former employees employed by
Respondent since April 14, 2016.
35
(b) Within 21 days after service by the Region, file with the Regional Director for
Region 4, a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
40

12 If no exceptions are filed as provided in Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended order herein shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be waived for all purposes.
13 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–35–17
13
Dated at Washington, D.C., June 5, 2017.
5
Robert A. Giannasi
Administrative Law Judge
APPENDIX.
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated 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 on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT transfer you from one shift to another or deny transfer requests from one
shift to another because of your union or other protected activity or because you have
testified in a National Labor Relations Board proceeding or otherwise cooperated with
the Board.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the
exercise of the rights listed above.
ALLIED CRAWFORD STEEL
Dated ________________________ By __________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935
to enforce the National Labor Relations Act. It conducts secret-ballot elections to
determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your
rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board's Regional Office set forth below. You may
also obtain information from the Board's website: www.nlrb.gov.
615 Chestnut Street, 7th Floor, Philadelphia, PA 19106-4404
(215) 597-7601, Hours: 8:30 a.m. to 5:00 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/04-CA-
174095 or by using the QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING
AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE'S COMPLIANCE OFFICER, (215) 597-5354.